HKSAR v. Chan Pui Ming

CACC 107/2024, [2025] HKCA 507

On Appeal From [2024] HKCFI 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 107 OF 2024

(ON APPEAL FROM HCCC NO 339 OF 2023)

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J U D G M E N T

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1.The applicant pleaded guilty to two charges before a magistrate, namely: driving a motor vehicle with any concentration of a specified illicit drug, contrary to section 39K(1) of the Road Traffic Ordinance, Cap 374 (Charge 1); and trafficking in a dangerous drug, namely 117.3 grammes of a solid containing 109 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2). On 26 October 2023, he was committed to the High Court for sentence.

2.On 30 April 2024 in the High Court, Andrew Chan J (“the judge”), adopted a starting point of 2 years’ imprisonment in respect of Count 1; and 9 years and 6 months’ imprisonment in respect of Count 2. From these starting points, the judge gave a full one-third discount but ordered the resulting sentence of 16 months’ (or 1 year and 4 months’) imprisonment on Charge 1 to run wholly consecutively to the resulting sentence of 6 years and 4 months’ imprisonment on Charge 2, thereby making a total sentence of 7 years and 8 months’ imprisonment. In addition, the judge made a driving disqualification order of 5 years, which period was not to commence until the completion of his sentence of imprisonment, and further ordered that the applicant must also pass a test of competence before driving again.

3.The applicant seeks leave to appeal against his sentence, although he does not complain about the quantum of the individual sentences of imprisonment. Given the position of the parties, I have decided to deal with the matter of leave on the papers, thereby dispensing with today’s court hearing.

Facts accepted by the applicant

4.On 2 March 2021, at around 23:37 hours, the applicant was seen driving a private car in the middle lane of Yuen Long Highway without its rear light(s) illuminated. Despite being directed by the police to drive to the nearside hard shoulder, the applicant continued driving the vehicle for about 7 to 8 minutes, before finally stopping near a lamp post at Tat Fuk Road, Tuen Mun, New Territories. When police officers approached the vehicle, the applicant was seen throwing an item out of the car onto the ground[1].

5.The vehicle, which had been hired by the applicant for 1 week, was searched. Inside, the police found the dangerous drugs, the subject-matter of Charge 2, contained in 6 transparent bags under a plastic cover below the handbrake, as well as HK$39,000 in cash and three mobile telephones[2].

6.A rapid oral fluid test was conducted on the applicant, indicating a positive reaction to both ketamine and cocaine. Subsequently, a blood test revealed the following substances in the applicant’s blood[3]:

(a)  Cocaine: 0.02 microgram per millilitre;

(b)  Benzoylecgonine (a metabolite derived from cocaine): 0.76 microgram per millilitre;

(c)  Ecognine methyl ester (a metabolite derived from cocaine): 0.03 microgram per millilitre; and

(d)  Ketamine: 0.12 microgram per millilitre.

7.The applicant had 4 previous appearances before the courts and 8 previous convictions, 4 of which were relevant to the present case. On 5 August 2016, the applicant received 21 months’ imprisonment and a 2-year disqualification order for dangerous driving. On 22 November 2018, he was sentenced to a Drug Addiction Treatment Centre and ordered to be disqualified from driving for a total period of 2 years for possession of a dangerous drug, driving while disqualified and using a motor vehicle without third party insurance[4].

Grounds of appeal

8.Mr Lee, on behalf of the applicant, makes complaint about the total sentence of 7 years and 8 months’ imprisonment (Ground 1), the disqualification order (Ground 2) and the re-test order (Ground 3). He argues that they are manifestly excessive and/or wrong in principle in the circumstances; moreover, the last order was unfairly made without inviting submissions from the defence; accordingly, there was a material irregularity in the conduct of the trial.

The respondent’s position

9.Whilst indicating that leave is opposed on all grounds of appeal, the respondent is content with leave on Ground 1 being determined on the papers and, in the event of leave being granted on Ground 1, the arguments in Grounds 2 and 3 being dealt with by the full Court directly.

Consideration

10.In a recent application for leave to appeal against sentence, namely HKSAR v Poon Chi Keung[5], I said that it was reasonably arguable that a sentence of 12 months’ imprisonment (from a starting point of 18 months’ imprisonment) for the same offence as Count 1 in the present case, was manifestly excessive. I also considered it to be reasonably arguable that making the term for that offence wholly consecutive to a sentence for trafficking in a dangerous drug (Count 2 in the present case) had led to an overall sentence that was manifestly excessive. In my view, the same considerations apply to the present case.

11.Accordingly, I shall grant leave on Ground 1 on the papers. Although the arguments in Grounds 2 and 3 are specific to the present case only, in the absence of any objection from the parties, leave on those grounds will be determined at the same time as the appeal. I also order that the substantive appeals of Poon Chi Keung and the present case should be heard together so that the overlapping issues can be resolved by the same Court.

Ms Anthea Kwok SPP, of the Department of Justice, for the Respondent

Mr Joseph Lee, instructed by the Legal Aid Department, for the Applicant