HKSAR v. Cheng Chi Wai

CACC 263/2019

[2020] HKCA 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 263 OF 2019

(ON APPEAL FROM HCCC NO 91 OF 2019)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

1.On 26 August 2019, before Deputy Judge Bruce SC (“the judge”) in the High Court, the appellant was convicted upon his own pleas of guilty to an indictment alleging three offences: two of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Counts 1 and 2); and one of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance. He was sentenced to 6 years and 2 months’ imprisonment in total.

2.At his application for leave to appeal before a Single Judge[1], on 23 June 2020, which application was not resisted by the respondent, leave was duly granted to the appellant.  The respondent’s position at this appeal remains the same, and that the appeal should be allowed.

3.The particulars of each count on the indictment, all of which were alleged to have taken place on the same day, were as follows:

Count 1:  Trafficking in 49.1 grammes of a solid containing 35.1 grammes of cocaine outside Sau Fai House, Sau Mau Ping Estate, 101 Sau Ming Road, Lam Tin;

Count 2:  Trafficking in 14.8 grammes of a solid containing 10.7 grammes of cocaine in a (named) unit of Sau Fai House, Sau Mau Ping Estate, 101 Sau Ming Road, Lam Tin;

Count 3:  Possessing 3.27 grammes of a solid containing 2.81 grammes of ketamine in the same unit of Sau Fai House, Sau Mau Ping Estate.

The prosecution case

4.The appellant was stopped and searched by police officers in the street and, having been found in possession of the dangerous drugs particularised in Count 1, was taken back to his place of residence, where the drugs in Counts 2 and 3 were found.

5.At about 1:53 am on 2 June 2018, police officers on an anti-dangerous drugs operation in Sau Mau Ping Estate in Kowloon saw the appellant coming out from Sau Fai House in Sau Mau Ping Estate.  The appellant was intercepted and searched.  He was found to be carrying 7 plastic bags, inside of which were 242 smaller plastic bags holding 49.1 grammes of a solid containing 35.1 grammes of cocaine (Count 1).  Having been arrested and cautioned, the appellant admitted that he was taking the cocaine to Tsim Sha Tsui for a reward of HK$2,000.

6.Armed with a search warrant and using a key found on the appellant, the police officers then entered the appellant’s residence in Sau Fai House (“the premises”). On a table in the living room of the premises, the officers found 1 plastic bag, inside of which were 2 plastic bags holding a total of 14.8 grammes of solid containing 10.7 grammes of cocaine (Count 2).  The officers further discovered 1 plastic bag, inside of which were 6 plastic bags holding a total of 3.27 grammes of a solid containing 2.81 grammes of ketamine (Count 3).  On a table in the living room, some transparent re-sealable plastic bags, a box of gloves and an electronic scale were also found.

7.The appellant was arrested and cautioned again, whereupon he admitted that the cocaine found in the premises and on his person had been collected the previous day; and that the cocaine found in the premises was the remainder after packing what was found in his possession into plastic bags. In a subsequent video recorded interview, the appellant stated that an acquaintance had instructed him to collect some cocaine from him and then re-package it into smaller bags for delivery to a pub in Tsim Sha Tsui, Kowloon for a reward of HK$2,000.  He was arrested when leaving his home.

8.The cocaine, the subject-matter of Counts 1 and 2, was valued at HK$80,770; while the ketamine in Count 3 was valued at HK$1,543.

The background of the appellant

9.The appellant, who was 29 years of age at the time of sentence, had five previous convictions, which included trafficking in and possession of a dangerous drug in 2008; and possession of a dangerous drug in 2013 and 2015[2]. At the time of the offences, he was unemployed.

The reasons for sentence

10.The judge found that the only real mitigation in the appellant’s case derived from his pleas of guilty entered at the earliest opportunity.  Although there were two separate counts of trafficking, hence technically two distinct acts of trafficking meriting potentially consecutive sentences, the judge considered that to make such sentences consecutive would result in an unduly harsh and unrealistic overall sentence[3]. Accordingly, he approached the appellant’s criminality as one “continuous act of trafficking” and held that a sentence based on the aggregate quantities of cocaine concerned would be imposed in respect of both counts of trafficking[4].  That aggregate quantity amounted to 45.8 grammes of cocaine narcotic, which, in accordance with the guidelines set out in R v Lau Tak Ming and Another[5], would attract a starting point of 7 years and 8 months’ imprisonment.  Applying a full one-third discount for plea to the aggregate of 7 years and 8 months’ imprisonment would produce a sentence of 5 years and 1 month’s imprisonment. 

11.However, when the judge considered the individual discounted sentences on each count, he imposed a sentence of 4 years and 7 months’ imprisonment on Count 1, and 3 years and 4 months’ imprisonment on Count 2, before ordering that 1 year and 6 months’ imprisonment on Count 2 should run consecutively to the sentence on Count 1; thus making an overall sentence as between the two counts of 6 years and 1 month’s imprisonment.

12.As for the offence of possession of ketamine (Count 3), the judge adopted a starting point of 6 months’ imprisonment for the quantity of narcotic concerned, which was reduced to 4 months’ imprisonment for plea.  The judge then ordered 1 month of the sentence on Count 3 to run consecutively to the sentence on Count 2, resulting in an overall sentence of 6 years and 2 months’ imprisonment.

Grounds of appeal against sentence

13.Ms Cheung, for the appellant, advances two grounds of appeal against sentence.  Firstly, she contends that the overall sentence in respect of Counts 1 and 2, namely, 6 years and 1 month’s imprisonment, was not consistent with the approach set out in HKSAR v Wan Lau Mei[6], where the Court held that dangerous drugs possessed by the same defendant at different locations on the same day should normally be regarded as a single occasion of possession, so that the process of treating them separately did not lead to an artificially inflated final sentence[7]. The appellant was content with partly consecutive sentences for the trafficking charges as long as the resulting sentence was not more than 5 years and 1 month’s imprisonment.  Secondly, although the sentence in respect of Count 3 was in itself correct, as was the ordering of 1 month of that sentence to run consecutively to the sentence on Count 2, the total sentence became manifestly excessive by virtue of the error alleged in the first ground.

The respondent’s position

14.Ms Yu, with her Mr Shiu[8], for the respondent, acknowledges that the judge was in error in his approach to sentence for the two trafficking counts and, as a result, the overall sentence in respect of Counts 1, 2 and 3 was manifestly excessive.

15.Ms Yu submitted that the judge clearly intended to impose a sentence of 5 years and 1 month’s imprisonment in respect of Counts 1 and 2 following the discount for plea, because he said so in terms[9].  That he passed a sentence of 6 years and 1 month’s imprisonment suggests that he must have inadvertently ordered 1 year and 6 months of the sentence on Count 2 to run consecutively to the 4 years and 7 months’ imprisonment term on Count 1, instead of 6 months.  As a result, the overall sentence for the two trafficking charges exceeded the one he intended by a whole year.  The respondent accepts that, subject to the presence of any aggravating factors and the principle of totality, the resulting sentence was manifestly excessive.

16.Although the judge made reference to the appellant’s criminal record for trafficking[10], it is not entirely clear whether he ultimately took this matter into consideration as an aggravating factor when sentencing the appellant.  However, Ms Yu accepts, and we agree, that given the fact that the appellant’s previous trafficking conviction, for which he was sent to a Detention Centre, was in the magistrate’s court over a decade earlier when he was 18 years of age, it would not have justified a one-year enhancement of the present sentence to 6 years and 2 months’ imprisonment.  In the circumstances, the respondent’s position is that the appeal should be allowed.

Consideration

17.We agree with the submissions of both parties. The judge made it quite clear that the aggregate sentence after discount in respect of both Count 1 and Count 2 should be 5 years and 1 month’s imprisonment.  That is the result he specifically stated he intended to achieve.  That he arrived at a sentence of 6 years and 1 month’s imprisonment suggests a simple miscalculation when applying the consecutive element as between Counts 1 and 2, as he was correct to do in respect of separate counts where the quantity of narcotic in Count 2 added to the appellant’s criminality on Count 1, rather than a change of mind.  It falls to us, therefore, to correct the error in the judge’s sentencing approach and re-sentence the appellant.

18.We are satisfied that the overall sentence for Counts 1 and 2 should have been 5 years and 1 month’s imprisonment, as the judge originally intended.  We shall achieve that objective by ordering 6 months of the sentence of 3 years and 4 months’ imprisonment on Count 2 to run consecutively to the sentence of 4 years and 7 months’ imprisonment on Count 1, thus making an overall sentence as between Counts 1 and 2 of 5 years and 1 month’s imprisonment.  No complaint is, or could be, made about the judge’s sentence on Count 3, which we shall leave undisturbed.  Accordingly, 1 month of the sentence of 4 months’ imprisonment on Count 3 will run consecutively to the 5 years and 1 month’s imprisonment, thus making a final sentence of 5 years and 2 months’ imprisonment.

Conclusion

19.In the result, the appeal against sentence is allowed and the appellant’s overall sentence is accordingly reduced from 6 years and 2 months’ imprisonment to 5 years and 2 months’ imprisonment. 

Ms Margaret KW Yu SADPP (Ag) and Mr Ivan Shiu SPP, of the Department of Justice, for the Respondent

Ms Emily Cheung, instructed by Kwok, Ng & Chan, assigned by the Director of Legal Aid, for the Appellant