HKSAR v. Ho Chak Ming

CACC 8/2023, [2023] HKCA 899

On Appeal From [2023] HKCFI 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 8 OF 2023

(ON APPEAL FROM HCCC NO 95 OF 2022)

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J U D G M E N T

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1.The applicant was sentenced to 6 years and 4 months’ imprisonment by Campbell-Moffat J (“the judge”) on 5 January 2023, following his plea of guilty in a magistrate’s court and his subsequent confirmation of that plea before the judge, to a single count of trafficking in a dangerous drug, namely, 35.53 grammes of a crystalline solid containing 34.51 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The applicant now applies for leave to appeal against sentence on the sole ground that the enhancement of 1 year for the aggravating feature of the applicant’s criminal record was manifestly excessive.

The facts

3.The applicant was found with the subject-matter of the count contained in six packets on his person when intercepted by police officers, whilst walking along Nam Cheong Street in Sham Shui Po, Kowloon at about 3 am on 1 January 2021. At the time, he also had with him three mobile telephones and HK$10,606 in cash. Following his arrest and caution, the applicant responded that he had nothing to say. In a later video-recorded interview, the applicant declined to answer any questions put to him.

4.The estimated street value of the ‘Ice’ at the time was HK$20,891.64. At his plea, the applicant admitted that he was unlawfully trafficking in the said ‘Ice’ at the time.

5.The applicant had 15 previous court appearances, 12 of which were concerned with dangerous drugs. Although most of these 12 appearances involved offences of possession of dangerous drugs or apparatus, there were three prior convictions for trafficking in dangerous drugs, for which he had received 18 months’ imprisonment in the District Court in November 2005; 7 months’ imprisonment in Kowloon City magistrate’s court in March 2009; and 11 years’ imprisonment following his successful appeal from the High Court in June 2010[1]. He had been discharged from prison in respect of his last conviction for possession of dangerous drugs on 13 November 2019. The present offence of trafficking in dangerous drugs was committed on 1 January 2021.

Mitigation

6.It was submitted in mitigation that in 1989, the applicant had committed his first offence of keeping a vice establishment, for which he was sentenced to 9 months’ imprisonment. His wife had subsequently left him taking their two children, after which he had lost contact with them. This led to a spiral of depression and involvement with dangerous drugs. However, following his last release from custody, the applicant had found a job, which he had then lost when he committed the present offence.

7.It was said that the applicant was remorseful and was determined to stay away from drugs; he had pleaded guilty at the earliest opportunity and had cooperated by telling the police that there was another packet of drugs hidden in his jacket sleeve.

8.Accepting that the sentence could be enhanced for the aggravating feature of the applicant’s criminal record, the Court was urged not to enhance the sentence or, otherwise, to adopt a very short period of enhancement.

Reasons for sentence

9.The judge adopted a starting point of 8 years and 6 months’ imprisonment, pursuant to the guidelines in HKSAR v Tam Yi Chun[2]. She noted that the applicant, at the time of the offence a 66-year-old single man with a drug habit, had a substantial criminal record dating back to 1989. Had it not been for the last substantial sentence for trafficking, the judge said she might have taken a more lenient approach, given the applicant’s drug dependence. However, his last appearance, in which he was convicted of four counts of trafficking, showed him to be “an entrenched recidivist”, who had not committed a “one-off act” but was clearly “going to offend in some form or other until the day he dies”[3].

10.Accordingly, bearing in mind that deterrence was an overwhelming consideration, the judge enhanced the starting point by 1 year, thus making 9 years and 6 months’ imprisonment.

Ground of appeal

11.Mr Wong Po Wing, on behalf of the applicant, submitted that, given the record of the applicant and the 34.51 grammes of ‘Ice’ involved, the 1-year enhancement was too high in all the circumstances, since it equated to an 11.7% increase of the original starting point of 8 years and 6 months. He referred to HKSAR v Le Huu Nghi[4], where the appellant had what were described as four similar previous convictions, although the judgment is silent as to the actual sentences and details of those offences, and the Court considered that the 6-month enhancement for his record, which amounted to a 10% increase of the starting point, was too high[5].

12.Mr Wong contended that in the present case, since the applicant had only three similar previous convictions, the last of which was a relatively long time ago, the 11.7% enhancement was by comparison also too high.

Respondent’s submissions

13.Ms Lily Yip, for the respondent, responded that in Le Huu Nghi, the Court had found it a significant matter that the trial judge had not given any consideration to the fact that the entire prosecution case had been agreed to by the appellant by way of formal admissions under section 65C of the Criminal Procedure Ordinance, Cap 221[6]. However, such a factor did not apply to the present case.

14.She then referred to HKSAR v Har Tsz Yui[7], where the Court had held that the aggravating feature of a defendant being a repeat offender, whatever the offence, was not susceptible of a mathematical application of percentage enhancements; but would depend on the nature of the offence, its seriousness and the extent of the criminal record, as well as the need for personal and public deterrence. Further, the enhancement should be reasonably proportional to the basic sentence so as not to result in an overall excessive sentence.

15.Applying the same methodology used in Har Tsz Yui, Ms Yip calculated that the enhanced starting point of 9 years and 6 months’ imprisonment would equate to trafficking in about 47.50 grammes of ‘Ice’, which was some 13 grammes (or 38%) more than the amount actually trafficked by the applicant; which enhancement was proportionally lower than that in Har Tsz Yui.  Accordingly, she submitted that the enhancement was reasonably proportional to the basic sentence.

16.In respect of the applicant’s personal circumstances, Ms Yip pointed out that he had re-offended by committing a serious offence of a similar nature relatively soon after his last discharge from prison. Given that serious aggravating feature, the total sentence could not be said to be manifestly excessive.

Consideration

17.It is not useful, other than in general terms, to be too mathematical about an enhancement for a previous criminal record, or too influenced by what other courts have done in cases where circumstances may well differ widely. As the Court said in Har Tsz Yui:

“Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which the judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.”

18.This passage was subsequently cited with approval by Zervos JA on behalf of the Court in HKSAR v So Yat-ting[8], where he held that when determining an enhancement against a recidivist, a court should ensure that:

“(i) the original starting point must be proportionate to the actual sentence[9]; and (ii) the degree of enhancement must be in reasonable proportion to the basis sentence, and the total should not be excessive[10].”

19.In any event, as Ms Yip has pointed out, the enhancement proportional to the starting point in the case before me was actually less than that adopted and approved by the Court of Appeal in Har Tsz Yui. Moreover, it was only slightly above the enhancement originally applied in Le Huu Nghi, a District Court case where the circumstances and seriousness of the appellant’s four similar previous convictions are not apparent from the judgment, save that the appellant was last sentenced for an offence of trafficking to 30 months’ imprisonment[11]; a rather less significant sentence than the 11 years’ imprisonment last imposed on the applicant for trafficking. The Court in Le Huu Nghi reduced the sentence from 5 years and 9 months’ to 5 years and 3 months’ imprisonment; partly because of the way the appellant had there conducted his defence before the District Judge.

20.These two cases demonstrate how comparisons between different cases are not very useful other than to give an idea of the general range of enhancement of sentence. The question of the appropriate enhancement in the case before me was a matter for the judge in the exercise of her discretion. Looking at the applicant’s appalling criminal record, and his most recent sentence for trafficking, for which he received 11 years’ imprisonment in respect of four separate offences of trafficking, the judge considered that the enhancement of a starting point of 8 years and 6 months’ imprisonment could not realistically be less than 1 year. I do not think it is reasonably arguable that an appellate court would disagree with the judge’s view or, even if it did, that it would be disposed to tinker with the applicant’s sentence.

21.The one matter which has given me cause for concern is Mr Wong’s submission that the facts giving rise to the applicant’s last convictions for trafficking and two other offences took place in July 2008, which was a significant time ago. However, the reality of the position is that the applicant would not have been released from the 12 years and 3 months’ sentence for all those offences until September 2016 (assuming good behaviour), after which he received two further sentences of imprisonment in 2018 and 2019. Effectively, this meant that he had been in prison for the best part of the decade before the commission of the present offence. It is not, therefore, realistic to say that the applicant has changed his ways.

22.The application is accordingly refused. The applicant is reminded that he has a right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time he has served in custody pending the hearing of his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

Ms Lily Yip PP, of the Department of Justice, for the Respondent

Mr Wong Po Wing, instructed by the Legal Aid Department, for the Applicant