HKSAR v. Wong Pik Fung

CACC 228/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 228 OF 2005 

(ON APPEAL FROM DCCC NO. 333 of 2005 )

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Before: Hon Yeung & Tang JJA in Court

Date of Hearing:  7 October 2005 

Date of Judgment:  7 October 2005

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.On 10 December 2004, the police, armed with a search warrant, raided a heroin divan on 2/F, No. 315A Reclamation Street (the 1^st premises). There were 29 people – 24 males and 5 females inside. The applicant – Wong Pik Fung was one of them.

2.The police searched and found on the applicant’s person cash of $440 and 2.97 grammes of mixture containing 1.68 grammes of heroin in 12 packets, 8 blue, 3 red and 1 white in colour.

3.The police also found other smoking apparatus and paraphernalia inside the 1^st premises.

4.The applicant admitted that he was the keeper of the divan and claimed to be selling heroin for his boss for $700 a day. He, however, refused to disclose the name of his boss to the police.

5.The applicant was then put on police bail.

6.On 29 January 2005, the police raided another premises on 3/F, No. 313A Reclamation Street (the 2^nd premises) of which the applicant was again in charge. Inside there were 21 people – 16 males and 5 females, and there were also smoking apparatus and paraphernalia.

7.The police found, on the applicant’s person, cash of $2,580 and 3.70 grammes of a mixture containing 3.24 grammes of heroin in 12 packets, 4 blue, 4 red and 4 white in colour.

8.The applicant admitted to be the keeper of the divan and said he was paid $800 a day by his boss, selling heroin to customers. Again, the applicant refused to disclose the name of his boss to the police.

9.The aforesaid incidents resulted in the applicant’s prosecution on two sets of drug trafficking and divan keeping charges, the 1^st set related to the incident on 10 December 2004 and the 2^nd set related to the incident on 29 January 2005.

10.The applicant appeared before Judge E Toh in the District Court on 11 May 2005. He pleaded guilty to all four charges and was sentenced to a total term of 4 years’ imprisonment.

11.In respect of the 1^st set of drug trafficking and divan-keeping charges, the judge sentenced the applicant to 8 months and 12 months’ imprisonment respectively to run consecutively, making a total of 20 months. In respect of the 2^nd set, the judge sentenced the applicant to 20 months and 14 months respectively to run consecutively making a total of 34 months.

12.The judge ordered 28 months of the 34 months on the 2^nd set of charges to run consecutively to the 20 months imposed on the 1^st set of charges making a total sentence of 48 months’ imprisonment.

13.The applicant now seeks leave to appeal against sentence.

14.Mr Percy, on behalf of the applicant, does not challenge the individual sentences on the four charges. He does not even complain about the consecutive terms on the drug trafficking and divan keeping charges.

15.Mr Percy’s only complain is that the overall sentence of 4 years is manifestly excessive. He suggests that of the 34 months in respect of the 2^nd set of charges, a period of much shorter than 28 months should have been ordered to run consecutively to the 20 months in respect of the 1^st set of charges.

16.Mr Percy emphasizes that the applicant, a young addict of 26 years old, worked as a keeper because of his drug dependency. The fact that the applicant committed the 2^nd set of offences while on bail in respect of the 1^st set was explained on the basis, “the applicant was desperate for money to feed his addiction and that he was controlled by that addiction regardless of the consequences”.

17.Mr Percy suggests that keeping a divan and providing drugs to customers in the divan were part of the same criminality and if the judge had given sufficient weight to the applicant’s criminality and his background, including the probable motivation for committing the offences, she should have imposed a total sentence of significantly less than 4 years’ imprisonment.

18.We have considered Mr Percy’s submission carefully.

19.At the outset, we must say this is indeed a very bad case of drug trafficking. The applicant was supplying packets of drug in different colours, obviously indicating their different quantities, to customers in two separate divans that he controlled and managed, no doubt permitting and expecting them to consume the drugs there and then.

20.The presence of a large number of customers at the time of the police raids indicates not only that they were large-scale operations, but also that the visits by the customers and therefore the supplies of drugs to them were continuous in nature. When the applicant had exhausted the packets of drugs on his person, he no doubt would have obtained fresh supplies to feed the needs of his many customers.

21.Even then and according to the guidelines laid down in R v Lau Tak-ming & Ors [1990] 2 HKLR 370, each of the drug trafficking charges would attract, despite the relatively small quantities of 1.68 grammes and 3.24 grammes of heroin respectively, a tariff of 2 – 5 years’ imprisonment.

22.The striking feature of the case, a feature that Mr Percy fails to trivialize, is that the applicant committed the two sets of identical offences within a period of less than six weeks and that the 2^nd set was committed whilst he was on bail in respect of the 1^st set.

23.The raid on the 1^st premises and his arrest appeared to have no impact on the applicant whatsoever. He continued with the same operation, albeit at a different address, and provided packets of drugs of different quantities, to a large number of customers to consume as well as the facilities for such consumption.

24.What the applicant did was an affront to the law and certainly not excusable or made less serious by the suggestion that he was in desperate need for money to feed his addiction. In the circumstances, a significant part of the sentences on the two sets of offences must be served consecutively.

25.Although the judge ordered 28 months of the 34 months on the 2^nd set of charges to run consecutively to the 20 months on the 1^st set, its effect is the same as ordering 14 months of the 20 months on the 1^st set of charges to run consecutively to the 34 months on the 2^nd set.

26.We do not agree that the judge was wrong to do so.

27.The applicant’s previous convictions and his persistent refusal to divulge the identity of his “boss” may not be aggravating factors; but they are certainly not factors that can be put forward in mitigation.

28.The applicant had failed to avail himself the opportunity of minimizing his criminality, and thus his sentence by assisting the police to bring his “boss” to justice.

29.We have considered each and every points put forward ably by Mr Percy. On the facts of the case, we are not persuaded that the individual sentences or the total sentence of 4 years’ imprisonment are manifestly excessive.

30.The application for leave to appeal against sentence is therefore refused.

Ms Ho May Yu, Lily, SGC of the Department of Justice for the Respondent.

Mr Duncan Percy instructed by Messrs Hampton, Winter & Glynn assigned by the Director of Legal Aid for the Applicant.