HKSAR v. CHAN CHEUK HONG

CACC 5/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 5 OF 2016

(ON APPEAL FROM DCCC 396 OF 2014)

------------------------

------------------------

________________

J U D G M E N T

________________

1. The applicant pleaded guilty in the District Court before District Judge A Kwok (“the judge”) on 28 December 2015 to 7 charges.

2. The charges were “Claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap 151; two counts of “Blackmail”, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 and, in respect of the monies obtained from the each of the blackmail offences, two counts of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210; one charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one charge of “Failing to surrender to custody without reasonable cause”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

3. On 28 December 2015, he was sentenced by the judge to a total period of 4 years and 6 months’ imprisonment.  He now seeks leave to appeal against those sentences. 

The charges

4. The charges reflect four separate incidents involving five areas of criminal culpability.  The first incident involved conduct of claiming to be a member of a triad society which was accompanied by a blackmail demand in response to which $100 was handed over.  Hence, this first incident gave rise to three charges.  The second incident was also a blackmail demand and it was similarly reflected in charges of blackmail and theft.  The third incident was a trafficking in dangerous drugs, involving 2.63 grammes of a solid containing 2.01 grammes of cocaine.  The final area of criminal conduct occurred when the applicant failed to surrender to the District Court after being granted bail in the magistracy. 

The background to the offences

5. In June 2011 the police launched an undercover operation targeting triad and drug trafficking activities in Sheung Shui, New Territories.  In this operation a police officer disguised himself as a casual transportation worker and drug addict and was deployed to collect evidence against the “Wo Shing Wo” triad society which was active in the Sheung Shui area.

6. On 4 August 2011 the undercover police officer was with a number of other persons outside the Shek Wu Hui Jockey Club Clinic at Sheung Shui.  They were gambling at cards.  Four males, amongst whom was the applicant, approached the group.  The applicant said he was “Cheuk Si Hong” and claimed to be of “Sheung Shui Wo Shing Wo”, line of “Big Nose”.  The applicant then said to the undercover police officer that there were rules for playing cards in this area and that the players had to pay money to his followers.  The police officer took out a HK$100 banknote and gave it to one of the three followers. The group of four then left together.

7. On 16 September 2011 a similar incident happened again.  On this occasion the applicant approached the undercover police officer and asked him if he had paid the protection money, saying that he had to pay HK$100 if he wanted to play cards there.  The police officer gave the applicant a HK$100 banknote and the applicant then left with this money.

8. On 13 October 2011 the undercover police officer received a call from a person claiming to be “Ah Wai” and asking him if he needed anything today saying that he had some “hei sui” which was a code name for cocaine.  The undercover police officer agreed to purchase 10 drops of “hei sui” for HK$5,000.  In the evening of that day the transaction was completed by the undercover police officer receiving the drugs from the applicant and paying him HK$5,000. The drugs received from the applicant were subsequently examined by the government chemist and found to be 2.63 grammes of a solid containing 2.01 grammes of cocaine.

9. The undercover operation was turned overt on 14 November 2011.  However, it was not until 17 January 2014 that the applicant was arrested by the police.

10. The applicant was granted court bail on 2 June 2014 and was told to attend the District Court on 20 August 2014.  However, on that day he failed to surrender to the court.  On 3 August 2015, the applicant was arrested during a stop-and-search investigation in the street.

The mitigation

11. The applicant’s counsel informed the court that the applicant was 23 years of age and had completed Form 1 education but because of academic difficulties had left school.  It was said on his behalf that he committed these offences because of peer influence and that he had been involved in triad activities for a period of approximately two to three years.  His counsel said that he had followed a “Big Brother” in the “Wo Shing Wo” triad society in Sheung Shui and that he was used by his triad brother to commit the offences. 

12. His counsel claimed that in the almost four months that he had been in custody after his arrest he had done a lot of reflection and was now very remorseful for his conduct and he was looking for a chance to get back onto the right track.

13. His explanation for his failure to attend the court which was the subject of the seventh charge was simply that he did not have the courage to face the consequences of his actions.

14. His counsel asked the court to consider calling for a Detention Centre Report but that was rejected by the judge who said that the offences were far too serious for such a sentencing option.  The judge was referred to a number of sentencing authorities which related to the appropriate penalties for the offences that he was facing. 

15. The applicant had one prior conviction dating back to 2009 for assault occasioning actual bodily harm for which he had received an 80 hour community service order. 

The Judge’s Reasons for Sentence

16. In his Reasons for Sentence the judge adopted the following sentences for each of the offences:

Charge	Starting Point	Final Sentence
1: Claiming MOTS	15 months’ imprisonment	10 months’ imprisonment
2: Blackmail	3 years’ imprisonment	2 years’ imprisonment
3: Theft	9 months’ imprisonment	6 months’ imprisonment
4: Second blackmail	3 years’ imprisonment	2 years’ imprisonment
5: Second theft	9 months’ imprisonment	6 months’ imprisonment
6: Trafficking in a dangerous drug	2 years’ imprisonment	16 months’ imprisonment
7: Absconding	6 months’ imprisonment	4 months’ imprisonment

17. The judge recognized that it would be in order to impose concurrent sentences in respect of the blackmail and theft charges in relation to the first and second incidents but in relation to the first incident he said that 2 months of the sentence for the claiming to be MOTS charge should be served consecutively to the blackmail and theft charges.  Thus, in respect of the three charges arising from that first incident he imposed a total of sentence of 26 months’ imprisonment.  The second blackmail incident involved only two charges of blackmail and theft and he ordered them to run concurrently with each other, thus making a total of 24 months’ imprisonment.  However, he said that because it was a separate incident of blackmail, part of the 24 months’ sentence should be served consecutively to the first blackmail incident and decided that a period of 8 months’ imprisonment was appropriate.  So for the first two incidents of criminal conduct he imposed a total sentence of 34 months’ imprisonment. 

18. He then turned his attention to the other two areas of criminal liability, namely the trafficking in dangerous drugs and the absconding charge.  He recognized these were quite separate and distinct in nature and that as a matter of law he was entitled to order that they run wholly consecutively to the sentences for the other offences.  However, he said he would still have regard to the principle of totality but nevertheless decided that the appropriate order was that wholly consecutive sentences should be imposed. By this route he arrived at a total sentence of 4 years and 6 months’ imprisonment.

The grounds of appeal

19. In a submission attached to his Form XI the applicant merely states that he challenges the sentence.  He is unrepresented and so there are no perfected grounds of appeal and nor has he filed with the court any further submissions in support of his application.

Discussion

20. I can detect no error in the starting points and final sentences adopted by the judge in respect of each of the charges.  The only issue is whether the totality of the sentences is excessive for these offences and this offender. The judge was referred to appropriate cases and has correctly directed himself on these guideline cases and the application of the totality principle.  In considering whether it is reasonably arguable that the overall sentence is manifestly excessive I note that the sentence of 54 months’ imprisonment represents a sentence of 81 months, or 6 years 9 months’ imprisonment, after trial.  That, it seems to me, would be quite a heavy sentence for these offences, given that they were committed by a young man who has not previously suffered a sentence of imprisonment.

21. In respect of the first grouping of three offences relating to the first blackmail incident the judge was correct to order that 2 months of the “Claiming to be MOTS” sentence should run consecutively to the sentences for the blackmail and theft offences.[1]  I cannot therefore, see any error in his sentence of 26 months’ imprisonment for this incident of criminal conduct. 

22. Nor can I find any error in the judge’s assessment that 24 months’ imprisonment is appropriate for the second incident of blackmail.  However, a question arises of whether, taking account of the totality principal and the amount of money involved, an order that 8 months of that sentence be served consecutively is merely on the high side or whether it is reasonably arguable that it is manifestly excessive.  I incline to the latter.

23. In respect of the sentence for trafficking in a dangerous drug I can see nothing wrong with the sentence of the judge but do accept that it is reasonably arguable that having regard to the principle of totality and the totality of the sentences imposed on the other offences, part of this sentence should have been ordered to be served concurrently. 

24. In respect of the absconding charge I can find no error in relation to the starting point or in the order that it be served wholly consecutively to the other sentences.

Conclusion

25. For these reasons I grant the applicant leave to appeal.

[1] See HKSAR v Tse Yiu Ming CACC75/2007, unreported, 5 March 2008 at paragraph 29.