HKSAR v. Li Kam Chan

CACC 425/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 425 OF 2004

(ON APPEAL FROM DCCC No. 498 OF 2004)

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BETWEEN

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Before: Hon Ma CJHC, Stuart-Moore VP and V Bokhary J in Court

Date of Hearing: 5 October 2005

Date of Judgment: 5 October 2005

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J U D G M E N T

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V Bokhary J (giving the judgment of the Court):

1.This Applicant, a man in his early 50s, was convicted after trial before Judge Line in the District Court on two charges under the Dangerous Drugs Ordinance, Cap. 134.  One was of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3).  The other was of keeping a divan, contrary to s.35(1)(a) and (2).  He was sentenced to a total of 3½ years’ imprisonment.  That was by way of concurrent terms of 1½ years for the trafficking and 3½ years for the divan keeping.  He took out an application for leave to appeal against conviction and sentence.  A single judge (Stock JA) refused him leave to appeal against either.  He now renews before the Court itself his application for leave to appeal against both.

2.The trafficking charge was that on 11 December 2003 at the 4^th floor of No. 833 Canton Road in Yau Ma Tei the Applicant, who was the 3^rd accused, and a co-accused named Tsui Shu On, who was the 1^st accused, unlawfully trafficked in 0.15 gramme of a mixture containing 0.13 gramme of heroin hydrochloride.  The divan keeping charge is that on that date and at those premises the Applicant and Tsui kept a divan where heroin was sold and was to be smoked, inhaled, ingested or injected.

3.According to the Applicant’s evidence, he was at the divan as a customer.  But if the truth was as told by the police witnesses, then the position was as follows.  The Applicant was seen to have aided and abetted Tsui in the sale of the drugs and in the keeping of the divan.  And he later admitted to the police under caution to having so aided and abetted Tsui.  The judge felt sure, having seen and heard them all in the witness-box, that the truth had come from the police witnesses and not the Applicant.

4.Three grounds of appeal against conviction are contained in the Applicant’s Notice of Application.  They read:

“	(1)	The first defendant’s barrister told him/her that if he/she gave evidence for me it would have a (bad) effect on his/her sentence.  Therefore, he/she did not give evidence or tell the truth for me on the instruction of (his/her barrister).  Now that the first defendant has been sentenced and I have persuaded him/her, he/she is willing to testify and tell the truth for me.
	(2)	The first statement and post-recorded second statement of the major witness in this case were full of mistakes but the trial judge accepted his/her explanation.  This was unfair to me.
	(3)	After the trial had begun, the major witness in this case was sitting in court and listening to the trial for the whole morning.  My barrister lodged a complaint against his/her (presence in court) but the judge said that it was a minor matter.  I think that the trial judge had an excessive bias towards the prosecution.”

5.Ground 1 consists of assertion.  Moreover, we cannot assume that it would have helped the Applicant if Tsui had gone into the witness-box.  This ground does not cause us to regard the Applicant’s convictions as unsafe or unsatisfactory.

6.As for Ground 2, the fact is that the Applicant was represented by counsel whose competence we have no reason to question.  Nor do we have any reason to doubt that the judge would have taken proper advantage of his opportunity to see and hear all the witnesses.  The allegation of unfairness is unsubstantiated.

7.Ground 3 consists of assertion.  We have no reason to fear that the judge tolerated anything unfair or unsafe.  The allegation of bias is unsubstantiated.

8.There is no proper basis for disturbing either of these convictions.

9.Accordingly the application for leave to appeal against conviction is dismissed.

10.The Applicant has 26 previous convictions.  They include convictions for trafficking in dangerous drugs in 1997, 2000 and 2002.  The 3½ years’ imprisonment to which the Applicant was sentenced for divan keeping reflected the judge’s view of the circumstances of these offences and this offender.  The circumstances of the offences include the Applicant’s role as a doorman at the divan.  The circumstances of this offender includes the Applicant’s record of persistent trafficking in dangerous drugs.

11.Two grounds of appeal against sentence are contained in the Applicant’s Notice of Application.  They read:

“	(1)	There are guidelines from High Court on the starting point (for) this (kind of) cases:  the maximum (penalty) is 30 months’ (imprisonment).  Having been sentenced to 42 months’ (imprisonment), I think that the sentence imposed is too heavy and I apply for remission (now).
	(2)	At the early stage, the trial of this case was fixed in Court 4 of Kowloon Magistracy [sic] on 22 April, 2004.  However, it was somehow transferred to District Court all of a sudden, (therefore) a heavier sentence was (imposed on me).  This was very unfair to me.”

12.As for Ground 1, the short answer is that the factual circumstances which constitute these two offences are not covered by any guidelines.

13.And as for Ground 2, the short answer is that there was nothing unfair or otherwise wrong with the case being dealt with in the District Court.

14.There is no proper basis whatsoever for reducing the Applicant’s sentence of 3½ years’ imprisonment in all on these two grounds.

15.In Court today, the Applicant informs us that he has been admitted to Queen Elizabeth Hospital because he is suffering from breast cancer and is presently receiving radiotherapy.  Ms Wan for the Respondent has been able to confirm this.  The fact that the Applicant is suffering from this illness is not a matter which we can take into account on a matter as serious as this.  However, should the Applicant’s condition take a turn for the worse, the Applicant is at liberty to apply to the Chief Executive for clemency.

16.Accordingly the application for leave to appeal against sentence is also dismissed.

Applicant in Person

Ms Polly Wan, SGC of Department of Justice for the Respondent