HKSAR v. Au Kwok Chai

CACC 255/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 255 OF 2005

(ON APPEAL FROM DCCC No. 377 of 2005)

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BETWEEN

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Before: Hon Stuart-Moore, VP and Beeson, J in Court

Date of Hearing: 21 September 2005

Date of Judgment: 21 September 2005

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J U D G M E N T

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Beeson, J (giving the judgment of the court):

1.On 12 May 2005, the Applicant was convicted after plea on three charges by Deputy Judge Andrew Chan in the District Court.  Charges 1 and 2 were each of Trafficking in Dangerous Drugs.  The first involved 0.19 grammes and the second 6.44 grammes of heroin hydrochloride.  The third charge was Managing a Divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

2.On Charge 1, the Applicant was sentenced to 16 months imprisonment, from a starting point of 24 months. On Charge 2, the Applicant was sentenced to 30 months imprisonment, from a starting point of 45 months. On Charge 3, the Applicant was sentenced to 16 months imprisonment from a starting point of 24 months.  1 month of the sentence on Charge 1 was ordered to run consecutively to that on Charge 2, and 9 months of the sentence on Charge 3 was ordered to run consecutively to the sentence on Charges 1 and 2, making a total of 40 months’ imprisonment for all 3 charges.  The Applicant appealed against sentence.

Grounds of Appeal

3.The perfected grounds of appeal were that :

(1)	the sentences for Charges 1 and 2 ought properly to have been considered together, per Woo VP, HKSAR v Tsang Hin Chung CACC 113/2004;
(2)	the 24 months’ starting point taken by the Judge for Charge 3 was in all the circumstances, manifestly excessive;
(3)	the Judge erred in respect of totality, in that the sentence imposed for Charge 3 ought to have had a greater portion made concurrent with the sentences imposed for Charges 1 and 2.

4.Mr. Surman, who appeared for the Applicant, clarified the grounds of appeal by submitting that the total sentence should be 35 months imprisonment and that 50% of the sentence on Charge 3 should have been made concurrent with the sentences on Charges 1 and 2.

Facts

5.The facts, which were admitted, showed that the police conducted an anti-narcotics operation, keeping a flat under observation.  An undercover police officer gained entry by posing as a customer who wanted to buy “stuff”.

6.Inside the premises, the officer saw a number of syringes and a box of aluminium foil on a table.  The Applicant told him that large packets cost $200 and small packets cost $100.  The officer bought one large packet and paid $200 in police marked money.  He received a packet of dangerous drugs (the subject of Charge 2) and was told he could use the equipment on the table to consume them.  The officer declared his identity, arrested the Applicant and searched him.

7.39 pellets of dangerous drugs (the subject of Charge 1) were found on the Applicant’s person, together with $1700 in cash including the marked money.  A search of the premises revealed 30 syringes, a packet of aluminium foil and minor articles of consumption paraphernalia.  Under caution, the Applicant admitted he had opened the divan for people to consume drugs on the premises.  He kept dangerous drugs for sale and made about $500 profit per day.  The divan had been open for 3 days and the $1500 found on him was 3 days’ profit.

8.The Applicant’s criminal record, which began in 1974, included 6 trafficking convictions and 3 convictions for keeping a divan.  He had received sentences of 16 months for each of two divan offences in April 2002, and 8 months for one in May 2005.  All those offences had been dealt with in the Magistracy.

Ground 1

9.On the first ground counsel for the Applicant submitted that the Judge should have considered the quantities of narcotic in Charges 1 and 2 together and that if he had done so the sentence for the two charges would have been 30 months’ imprisonment.  It is true the Judge, ideally, should have combined the narcotic quantities of Charges 1 and 2 to fix the proper starting point and then ordered the sentences to run concurrently, so as to avoid what was referred to as the “unfair result of consecutive sentencing”, in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

10.Counsel for the Applicant relied on HKSAR v Tsang Hin Chung CACC 113/2004, which approves the principle in HKSAR v Chow Yu Chi, CACC 359/2000, although ultimately Tsang Hin Chung does not assist his argument.  In Chow Yu Chi, although the judge’s approach to computing the sentence was flawed, the court ruled that because he imposed the right sentence overall, it would not disturb the way in which it was assessed.  The facts in Tsang Hin Chung were almost identical to those in the present case.

11.The Judge considered that the guideline sentence for Charge 2 was clear; 6.44 grammes of heroin should attract a prison sentence of 45 months.  He gave the usual one-third discount for plea, that being the only mitigation.  For Charge 1 the Judge took a starting point of 24 months and after discount imposed a 16 months’ sentence, one month of which was ordered to run consecutively to that on Charge 2.  The total sentence for both trafficking charges was 31 months.  The Lau Tak Ming guideline (Lau Tak Ming [1990] 2 HKLR 370) suggests that a quantity of heroin up to 10 grammes merits a sentence, after trial, of 2 to 5 years.  Here the combined narcotic quantity was 6.63 grammes.  A starting point of 45 months is not inappropriate for that quantity.  Indeed, a starting point up to 4 years could be justified, taking into account the repetition by the Applicant of these offences and the need for deterrence.

12.Although the Judge may not have followed the recommended approach in assessing sentence it is difficult to see why such failure should benefit the Applicant, when the sentence cannot be considered excessive, or wrong in principle in the circumstances of this case.  Accordingly the first ground of appeal must fail.

Ground 2

13.Counsel’s second ground was that the starting point adopted by the Judge on Charge 3 was manifestly excessive, because the operation was unsophisticated; only a small amount of paraphernalia was found; there was no drug packaging material found; the sum of money seized was small; no other persons were in the divan at the time and there was no attempt to destroy evidence.  It is difficult to see how the authorities relied on by counsel assist this submission.  In HKSAR v Tsang Hin Chun CACC 113/2004 and HKSAR v LAM Lai Chiu CACC 56/2003, both cases cited by Counsel for the Applicant, the range of sentence for keeping a divan seems to have been one to two years imprisonment. 

14.Starting points of 27 months and as high as 3 years have been approved in similar cases in the Magistracy.  (HKSAR v Chow Kit Heung HCMA 710/2003, HKSAR v Mosquiana Antony HCMA 716/2003.)

15.Given this Applicant’s previous, recent, convictions for this offence, which indicate that the sentences imposed have had little or no deterrent effect the Judge cannot be criticised for adopting a 24 months’ starting point.  It may be that, on these facts the starting points could have been higher.  There is no substance in this ground of appeal.

Ground 3

16.Counsel for the Applicant submitted that the Judge erred when considering totality by failing to order that a greater portion of the sentence on Charge 3 should run concurrently with the sentences imposed for Charges 1 and 2.  He refers this court to Tsang Hin Chung where 50% was ordered to run concurrently in respect of a pattern of charges that were similar.  However that case does not appear to lay down any principle in that regard.  It is a matter for a Judge to assess when he considers totality as a whole.  His Reasons for Sentence show that the Judge did consider totality when sentencing, by ordering 9 months only of the 16 months to run consecutively to the other sentences.  He treated Charge 3, correctly, as meriting a separate sentence because it was distinct from the other two charges.

17.The Applicant’s criminal record shows that the sentence for keeping a divan imposed immediately before the present cases was 8 months, a sentence tailored, apparently, to achieve totality with sentences he was serving for earlier similar offences.  An effective sentence of 9 months in the present case cannot be faulted, particularly as this Applicant, unlike the appellant in HKSAR v Ng Ka Wing, Kevin, CACC 563/1999 is not young, was a seasoned offender and had committed these offences almost immediately after his release from prison.  As a starting point of 24 months was not beyond the usual range and as the Judge did consider totality, there is no justification for ordering a greater portion of the sentence to run concurrently.

18.In all the circumstances, the overall sentence of 40 months is not excessive. This application for leave to appeal against sentence is dismissed.

Mr Giles Surman, instructed by Legal Aid Department, for the Applicant 

Mr David Leung, SADPP (Ag), of Department of Justice, for Respondent