HKSAR v. Wan Po Wo

CACC 498/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 498 OF 2005

(ON APPEAL FROM DCCC No. 566  OF 2005 )

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BETWEEN:

Before: Hon. Yuen and Tang JJA in Court

Date of hearing: 3 August 2006

Date of Judgment: 3 August 2006

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JUDGMENT

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Hon.  Yuen JA (giving the judgment of the court) :

1.On 22 October 2005, Deputy Judge Chainrai convicted the Applicant, a taxi driver by occupation, of one charge of possession of dangerous drugs, being 27.69 grammes of powder containing 21.53 grammes of cocaine said to be worth $21,000.  On 7 November 2005 he was sentenced to a term of imprisonment of 2 years and 9 months. 

2.The Applicant originally applied for leave to appeal against both     conviction and sentence, but in March 2006, he abandoned his application for the appeal against conviction.  In respect of the     present application for leave to appeal against sentence, he is represented by Mr Petrus Chan.  

3.The prosecution case was that on 22 April 2005, Customs and Excise officers intercepted the Applicant in the street near his home in Wah Fu Estate.  They searched him and found on him, amongst other things, a car key and an anti-theft remote control device. 

4.The Applicant was the registered owner of a car, parked in the same estate, in which were found the dangerous drugs contained in a plastic bag wrapped in tissue paper. 

5.In answer to a question before the car was opened, the Applicant informed the officers that there was contraband in the specific location where the drugs were found.  This was post-recorded in a notebook which the Applicant signed after having had his rights drawn to his attention.

6.The Applicant was originally charged with trafficking in dangerous drugs but the judge found no case to answer on the charge of trafficking and the charge was later amended to one of possession.

7.The Applicant however also fought this charge, challenging the admissibility of the post-recorded statement as well as the chain of evidence.

8.The judge found him guilty of the charge of possession.  Before sentencing him, she called for a DATC report which revealed that he was at the time of the offence still on probation for a previous conviction of possession of cocaine.  A condition of probation was that he abstain from dangerous drugs. 

9.The judge took 2 years as the starting point and enhanced it by 9 months for the latent risk of re-distribution.

10.First, we consider the starting point.  Mr Chan for the Applicant argued that the starting point of 2 years was too high given the quantity of the drugs in question, and he referred us to a number of cases, indicating that a starting point of 15 months would be suitable for the quantity in this case. 

11.We would accept that a starting point of more than 18 months appears to be on the high side, but this court has held that the quantity of drugs is not the "be all and end all".  If an offender was a persistent offender, he could expect the starting point to be higher (HKSAR v Mok Cho-tik [2001] 1 HKC 261).  The Applicant here was a persistent offender.  The judge was also entitled to take into account the following factors: the fact that the Applicant was at the time of the offence in the early stages of a probation period for a similar offence, his breach of the specific probation condition that he abstain from dangerous drugs, and the fact that he was on cocaine even during trial, his denial of this being belied by DATC reports.

12.Secondly, as for enhancement to take into account the latent risk of re-distribution, it was in fact the Applicant’s own case that there was more than 1 set of keys to the car in which the dangerous drugs were placed and that other people had access to the car.  He even claimed that he had no idea who had parked the car at the location where it was found.  He also had a previous conviction for trafficking, for which he had been sentenced to 10½ years imprisonment.  These are factors which exacerbated the risk factor (Mok Cho-tik).   

13.Thirdly and finally, there were no mitigating factors.  The Applicant had a number of serious previous convictions.  At trial he challenged even the possession charge (and indeed even after trial, he sought leave to appeal from conviction as well).

14.In the circumstances it cannot said that the sentence was manifestly excessive and this application is accordingly dismissed.

Mr Petrus Chan assigned by the Director of Legal Aid for the Applicant

Miss Mary Sin SADPP for the Respondent