HKSAR v. Chan Chun Hei

CACC 52/2022

[2022] HKCA 1749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 52 OF 2022

(ON APPEAL FROM DCCC NO 267 OF 2021)

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Before:  Hon Zervos JA in Court

Date of Hearing:  25 November 2022

Date of Judgment:  25 November 2022

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J U D G M E N T

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1.The applicant stood trial before District Court Judge E. Lin (the judge)  in respect of one charge of trafficking 2.7 grammes of cocaine and one charge of dangerous driving. He entered pleas of guilty to possession of the cocaine and to careless driving but the prosecution rejected these pleas.

2.The brief facts of the case were as follows.  At about 5:41 am on 26 September 2020, the applicant was driving his car along Tsing Sha Highway, Kwai Chung, when he came to a police roadblock.  As he approached the roadblock, he threw a Marlboro cigarette packet from the front passenger seat window.  He then reversed his car for about 20 meters but came to a stop because of a light goods vehicle behind him.  The police chased after him, and he was arrested.  The cigarette packet was retrieved, and the police found inside it 20 transparent bags, containing a total of 2.70 grammes of cocaine narcotic.  The police also found inside the applicant’s car $60,782.60 cash. 

3.It was the prosecution case that the applicant was trafficking the drugs, given the quantity of packets and cash found in his possession.  The defence case, on the other hand, was that the applicant had a drug addiction and was not involved in trafficking.  At most he was driving carelessly, not dangerously, as he panicked and reversed his car for a short distance.

4.On 17 February 2022, after trial the judge did not find the trafficking charge proven and convicted the applicant of simple possession of the drugs.  However, he found the dangerous driving charge proven. 

5.At the time of the offence, the applicant was 25 years and a partner in a car repair business.  It was accepted that he was of good character and had no previous convictions.  The judge remanded the applicant in custody and called for a Background report and a Drug Addiction Treatment Centre (DATC)  suitability report. 

6.The reports were tabled at the resumed hearing on 8 April 2022.  The background report presented the applicant in a favourable light, while the DATC report noted that he was drug dependent and considered him suitable for admission to a DATC. 

7.Mitigation focused on addressing the judge on an appropriate prison sentence for the two charges. 

8.The judge did not make a DATC order, despite the recommendation, because he was of the view that such an order was for the purpose of rehabilitation but the circumstances in the present case required deterrence to take precedence.  He considered the behaviour of the applicant and the latent risk of trafficking were important.[1]  He sentenced the applicant to 12 months’ imprisonment on the possession charge and 6 months’ imprisonment and disqualified from driving for 12 months on the dangerous driving charge.  He ordered that 3 months of the sentence on the dangerous driving charge run consecutively to the sentence on the possession charge. Accordingly, the applicant was sentenced to a total term of imprisonment of 15 months.  It should be noted that the judge adopted a starting point of 9 months’ imprisonment for the dangerous driving charge and reduced it by one third under the misapprehension that it was on a plea of guilty.

9.The judge did not address the issue of forfeiture in his reasons for sentence, which arose when making an order for the disposal of exhibits.  When counsel noted that items 3 to 12 concerned the cash, the judge responded by saying he was going to forfeit it.  As a result, the $60,782.60 cash in the applicant’s car was forfeited.

10.On 29 April 2022, the applicant applied for leave to appeal against his sentence, including the forfeiture order.  However, perfected grounds of appeal were only filed on 6 October 2022.  Mr Simon So, for the applicant, advances four grounds of appeal.  Ground 1 complains that the sentence for the possession charge was manifestly excessive and wrong in principle.  Ground 2 avers that the judge failed to give adequate weight to the applicant’s clear record and mitigating circumstances of the offence when passing sentence on the dangerous driving charge.  Ground 3 avers that the judge failed to give adequate weight to the restrictions placed on the applicant whilst in custody because of Covid-19.  Ground 4 complains that the judge erred in making the forfeiture order and failed to give reasons for doing so.

11.The resultant sentence was slightly on the high side but within the appropriate range of penalty in the circumstances of this case.  The judge noted that the usual range of sentences for possession of a dangerous drug was 12 to 18 months’ imprisonment.  He adopted a starting point of 15 months’ imprisonment, taking into account that the total quantity of cocaine was 2.7 grammes that had been packaged into 20 packets, which had been stored in a cigarette box that the applicant discarded upon seeing the police roadblock.  The applicant then sought to avoid apprehension by the police, who chased after him.  He was in possession of the drugs in the early morning, driving his vehicle on a public roadway.  The judge enhanced the sentence by 3 months for the latent risk factor, which was accepted as appropriate. 

12.Mr So argues that the judge should have adopted a starting point of between 8 to 12 months’ imprisonment, citing HKSAR v Mok Cho Tik [2001] 1 HKC 261, and making a comparison with the sentences in other cases.  It cannot be said that the applicant’s sentence was wrong in principle or manifestly excessive.  It fell within the appropriate range of sentence even though it may be viewed as slightly on the high side.  However, the judge had the benefit of trying the case, having an overall appreciation of the circumstances of the offence and the applicant’s culpability.

13.It is a pity that more serious consideration was not given to the sentencing option of a DATC order, bearing in mind the reports submitted to the court.  Sentencing is an art that must carefully be fashioned not only to the category of offence but to the circumstances of the offender. The importance of individual justice cannot be overstated and hence sentencing courts need to appropriately recognise the individual circumstances of a case and those of an offender in the framework of the relevant sentencing guidelines and principles.

14.The restrictions in Hong Kong dealing with Covid-19 were in response to local conditions and circumstances.  The reliance on the United Kingdom case authorities is of little assistance as they are concerned with an entirely different set of circumstances.  More importantly, there is a complete lack of empirical data or material to support the applicant’s ground that the judge did not give sufficient weight to the “Covid-19 factor”.  In any event, as a general rule, it is for the prison authorities to implement what measures they think necessary to address the health and well-being of prison inmates, subject to the law and the available legal remedies.

15.I do not find the grounds of appeal against sentence to be reasonably arguable, and leave is refused on those grounds. However, I do find the ground of appeal concerning the forfeiture order to be reasonably arguable, and I grant leave on this ground alone.  The main reason for granting leave is that the judge was not receptive to receiving any submissions from the applicant on this issue and failed to give reasons for the forfeiture order.  The judge may have been influenced by the evidence presented at trial, but it is argued he should have allowed the applicant to make a submission on this issue if he wished.  See HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57; HKSAR v Okpo Stanley Igwebuike HCCC 90/2016, 8 August 2016.

16.I direct that the reasons for verdict and the application for the disposal of exhibits be included in the appeal bundle for the appeal.

17.The applicant is reminded that he has a right to renew his application for leave to the Court of Appeal on the grounds that I have refused leave.  However, he is informed that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

Mr Douglas Lau, SPP (Ag)  of Department of Justice, for the respondent

Mr Simon So and Mr Enoch Fong, instructed by Ho & Associates, for the applicant