HKSAR v. Choy Chun Hung

CACC 95/2019

[2019] HKCA 1429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2019

(ON APPEAL FROM DCCC NO. 233 OF 2018)

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J U D G M E N T

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Background & the application

1.On 23 January 2019, the applicant pleaded guilty to two charges of trafficking in a dangerous drug before District Court Judge Eddie Yip (the judge).  The first charge related to one plastic bag of 1.36g of methamphetamine hydrochloride (Ice) seen to have been thrown away by the applicant when the police approached him.  The second charge related to a total of 9 plastic bags of 5.44g of Ice found to have been stored at the sun visor above the driver seat of the car which seat was occupied by the applicant prior to him being stopped by the police. 

2.In mitigation, the judge was told that the applicant had a young son aged 6 who got a psychiatric condition.  The judge also noted that the applicant had previous convictions, including 6 for possession of drugs. 

3.In sentencing on 12 March 2019, the judge added together the total narcotic contents and arrived at a global staring point of 5½ years (66 months) for the two charges.  After considering that there was nothing which would warrant any additional discount in sentence, the judge gave the applicant the 1/3 reduction for his guilty plea and ordered the applicant to serve concurrent terms of 44 months for both charges. 

4.The applicant now seeks leave to appeal against his sentence, saying that it was too heavy and that he should have been given about 10% to 25% reduction as part of the drugs was for his own consumption.

Consideration

5.In the proceedings below, while counsel for the applicant did, at one stage, indicate to the judge that, “my instructions is (sic) he bought the whole bulk.  His intention was to share part of it with his friend and a smaller part of it for his own consumption.”[1], that claim was eventually abandoned after counsel had discussed the matter further with the applicant[2].

6.In the circumstances, the claim for self-consumption was not a live issue before the judge. 

7.In my view, given the facts admitted by the applicant, in particular, that he was seen throwing away 1 bag of Ice while he was on the street and that there were 9 further bags of Ice stored in the car from which he alighted, as well as the fact that packaging paraphernalia like 2 more empty plastic bags and an electronic scale were found in the car, the applicant’s claim for self-consumption, even if pursued before the judge, would not have been accepted.  Moreover, the suggestion that the applicant would share part of the drugs with his friends would also be a form of trafficking and would not assist the applicant in his claim for sentence reduction on the basis of self-use. 

8.I also do not consider that any criticism could be levelled against the judge, whether in respect of the sentencing approach he took or in respect of the final term imposed. 

9.In other words, the grounds put forth by the applicant are not, in my view, reasonably arguable. 

Conclusion

10.For the above reasons, I refuse the application for leave to appeal against sentence. 

11.The applicant is reminded of his right to renew his application before the Court of Appeal but should he do so, and should the Court of Appeal find no merit for the renewal of the application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal. 

Mr Andy Lo, SPP of the Department of Justice, for the Respondent

The Applicant appeared in person