HKSAR v. HO SIU MAN

CACC 277/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 277 OF 2003

(ON APPEAL FROM DCCC 93 OF 2003)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against sentence. The applicant appeared in the District Court before HH Judge Chua and was sentenced to a total of 39 months' imprisonment after pleading guilty to three charges of trafficking in dangerous drugs, one of possession of drugs, and one charge of resisting police officers in the execution of their duty.

2. There were seven charges laid against the applicant, but we are concerned only with Charges 3 to 7 inclusive, Charges 1 and 2 having been left on the file.

The facts

3. The facts can be taken from the judge's Reasons for Sentence:

"1. On 12 December 2002, taking part in an anti-drug operation in Yuen Long, an undercover policeman calling himself Ah Kwan rang the defendant on his mobile phone. The defendant drove up to the pre-arranged place in his car, a 1994 Toyota Corolla, and sold the officer to packets of drugs (containing 0.18 grammes of heroin hydrochloride) for $600 (Charge 5).

2. When the police attempted to arrest him, the defendant drove off. The police were able to trace the defendant's registered address through his car registration. They found him tinkering with his car in an open space in Yuen Long. When the police revealed their identities, the defendant dashed into a converted container where the police saw him pick up from a table a packet of drugs (with 0.03 grammes narcotic content). In the ensuing violent struggle with the defendant, an officer suffered minor injuries (Charge 6).

3. In the container the police recovered $16,150 which included the $600 in marked money used to pay the defendant. The defendant, having pleaded to Charges 3, 4, 5, 6 and 7, at the police station he made the following admissions under caution:

	(1)	he had spoken to Ah Kwan who had called to buy drugs;
	(2)	part of the cash seized was drug proceeds;
	(3)	he had bought 20 packets of drugs three or four days before arrest and had already sold some of it to others;
	(4)	he had sold two packets at $250 each on 10 December (Charge 3);
	(5)	he had sold another two packets at the same price on 11 December (Charge 4);"

4. The total quantity of drugs with which we are concerned in the drug offences assuming, as we reasonably may, that the drugs sold on each occasion were of similar quantities, comes to something in the order of 0.57 grammes.

5. There were two offences which were revealed by reason solely of the applicant's own information to the police. They took place on 10 and 11 December 2002 and are reflected by Charges 3 and 4. The third offence, on 12 December, (Charge 5) relates to the supply of drugs to the undercover officer; and Charge 7 to the possession of drugs found in the container where the applicant had made his home, and which were found at the time of his arrest. There is, not surprisingly, no appeal against the sentence of one month imprisonment in relation to resisting arrest, which was Charge 6.

6. The applicant has a record of convictions for drugs offences. There were two offences of trafficking in 1997 for which he was sent to prison for 18 months and two years respectively, and there are three other occasions in respect of which he was sentenced for possession of dangerous drugs and either sentenced to a drug addiction treatment centre or to a short term of imprisonment.

The sentence

7. In respect of Charges 3, 4 and 5, the judge adopted a starting point of two years' imprisonment for each offence and imposed a sentence of 16 months to give effect to a discount for the pleas of guilty; but she ordered in relation to each that eight months would run consecutively to the others, a total for these trafficking offences of 32 months. She then imposed a term of ten months' imprisonment (a starting point of fifteen months) for possession of 0.03 grammes of heroin which was the quantity he dropped when the police apprehended him; six months of that sentence was ordered to run consecutively to the rest, making then a total of 38 months' imprisonment for the drugs offences. The judge imposed a one-month consecutive sentence in relation to the assault. So there was a total of 39 months' imprisonment, after plea. No complaint, as we say, is made against the sentence imposed in relation to Charge 6 or about the fact that that sentence was ordered to run consecutively.

8. The judge also made an order that: "In addition, pursuant to section 4(3)(a) of the Dangerous Drugs Ordinance, he is fined $13,000."

9. This applicant complains about the totality of the prison sentences, and also about the imposition of the fine.

The overall sentence of imprisonment

10. In sentencing the applicant to a term of 38 months' imprisonment for the drug offences, the judge expressly relied on HKSAR v Chow Shun-wah Crim. App. 12 of 1998 in which a court had taken a starting point of two years in respect of a person selling small packets on five occasions over a period of almost four weeks in a particular park and had, after a contested trial, ordered that in relation to each offence the sentences should run consecutively to the extent of nine months. What the judge did was to look at a case in which a defendant had been sentenced after a contested trial and, seeing that that court had made sentences run consecutively to the tune of nine months, ordered that in this instance the sentences for different trafficking acts should run consecutively by a term of eight months, justifying the one-month difference by reference to the fact that in this case the applicant had himself revealed the commission of the offences.

11. That case was an odd one for the judge to choose as one from which to draw assistance. Not only had the applicant there pleaded not guilty, but the judge's reliance on that decision seems to have ignored special aggravating circumstances to which the court there referred, in particular that the drugs were sold at a known drug black spot; and a further distinguishing and highly important feature which is that in this case, unlike that, the revelation or discovery of two of the three trafficking offences was a product solely of the applicant's own information to the police but for which the commission of those offences would not have been revealed. That is a significant mitigating fact to which in our judgment the court below gave far too little weight.

12. The total quantity of drugs in this case on all the trafficking counts, assuming the ones revealed by the applicant involved similar quantities, as it appears they did, was about 0.54 grammes, and the total sum involved in the sales of all three was $1,600. The judge was correct to take two years as a starting point for each of the trafficking offences but, as Ms Remedios in her able submissions has stressed, this is particularly that sort of case where 'feel' and the art which is sentencing must not be permitted to be a slave to a mathematical approach, which then becomes inimical to individual justice. In the assessment of the correct overall sentence to pass, there has to be taken into account the aggravating features that this applicant had previous convictions for similar offences, and that there were repeated offences. As against that, there was the plea of guilty, and the fact that the commission of two of the three offences were volunteered by the applicant. Looking at these facts, and the quantities involved, and the sums involved, we are satisfied that, and the respondent concedes that, on the facts of this particular case the totality adopted by this judge was manifestly excessive.

13. Accordingly, we grant leave to appeal against sentence and, treating this as the hearing of the appeal, we set aside the sentences imposed, save for that imposed in relation to the assault charge (Charge 6), and substitute the following:

On Charge 3 there will be a sentence of twelve months' imprisonment; on Charge 4 a sentence of twelve months' imprisonment; on Charge 5 a sentence of sixteen months' imprisonment; and on Charge 7 a sentence of nine months' imprisonment. The sentence of one-month in relation to Charge 6 stands. The correct totality in our judgment, after plea, for the drug offences as a whole is one of twenty-seven months and, with the sentence for the offence of resisting arrest, one of twenty-eight months.

We effect that result in the following way: that the sentences on Charges 3 and 4 will run concurrently to each other but twelve months of the sentence imposed on Charge 5 will run consecutively to the terms imposed on Charges 3 and 4, the remainder concurrently, a total thus far of twenty-four months. Three months of the sentence on Charge 7 will run consecutively to the sentences on the other charges, the remainder to run concurrently, which takes us to a total thus far of twenty-seven months. The sentence of one-month on Charge 6 will run consecutively to the rest: a total of twenty-eight months.

The fine

14. In relation to the fine, the judge merely said that she was fining the applicant $13,000. She did not specify in respect of which charge or charges that fine was imposed, an error of principle in itself (see Attorney General v Wong Sek Shing [1989] 1 HKLR 192), nor how she arrived at that figure.

15. There had taken place in the course of mitigation an exchange between counsel and the judge. Counsel for the prosecution had not made any application for a confiscation order under the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405, and so the judge was not empowered to make a confiscation order. The judge asked defence counsel what he had to say about the $16,000 and he said that the applicant had saved part of it from his previous earnings. The judge, not surprisingly, was skeptical about that, but counsel for the prosecution then emphasized that the police did not ask for the cash to be seized and that:

"There is nothing in the case to show overtly that this money was proceeds of drugs,"

save for the money which the officers had paid on 12 December 2002 (which was in any event forfeited) and, perhaps, the sum of $1,000 being the two amounts of $500 to which he had confessed when he had volunteered the two earlier offences committed on 10 and 11 December 2002.

16. Whilst a judge is not prohibited in an appropriate case from imposing a fine in conjunction with a custodial sentence where it is shown that an offender has profited from the offence (see HKSAR v Chan Mun-tong HCMA 1350 of 2000 and HKSAR v Yau [1999] 2 HKLRD 633, 641, and the cases at section J1-3 of Vol 1 "Current Sentencing Practice" by Thomas) the judge erred in doing so in this case. It seems clear enough to us that the judge, by adopting the course she did, was seeking to confiscate sums which she assumed to be the proceeds of drug trafficking (and obviously drug trafficking well beyond that covered by the offences to which the applicant had pleaded guilty) in order to circumvent the fact that no application had been made under Cap. 405. The prosecution had made it clear that it was not in a position to establish that the funds found in the possession of the applicant were the proceeds of drug trafficking, save possibly for the sum of $1,000. Yet in the face of this and of the assertion by the applicant that the funds in part were legitimate savings, the judge proceeded to impose a fine without proper evidential foundation; a fine that went well beyond the amount that could possibly have been the proceeds from the crimes with which the applicant had been charged and for which he was to be sentenced. Furthermore, the judge had given no intimation to counsel that, despite the prosecutor's position, she had it in mind not to make a confiscation order but to impose a fine to achieve the same objective. We note as well that the judge failed to observe the requirements of section 113A of the Criminal Procedure Ordinance, in that she did not say what term would follow if the fine were not paid, and it follows that since she did not address her mind to that question, she did not take into account when addressing the totality issue the consequences of a failure to pay a fine. The reason for her failure to specify a term in default of payment of the fine has become clear from our examination of the certificate of sentences dated 11 June 2003 and signed by the judge. That certificate specifies the sentences imposed and then adds in parenthesis the following:

"Defendant was also fined HK$13,000 to be deducted from the money recovered by police and in their custody." (Emphasis added)

The phrase which we have emphasized was not one used when the judge passed sentence and ought not therefore to have been used in the certificate. In any event the phrase used makes the order one in the nature of a confiscation order and not a fine. Whether the judge intended a fine or a confiscation order, neither the order pronounced in court nor the order stated in the certificate of sentence should have been made and, accordingly, we allow the appeal against the fine imposed and set it aside.