HKSAR v. CHAN SAI PIU

CACC 196/2024, [2025] HKCA 228

On Appeal From [2024] HKDC 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 196 OF 2024

(ON APPEAL FROM DCCC NO 1309 OF 2023)

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BETWEEN

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J U D G M E N T

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1.  On 13 September 2024, the applicant pleaded guilty to one count of possession of a dangerous drug, namely traces of a solid containing ketamine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1), and one count of trafficking in dangerous drugs, namely 5.69 grammes of cocaine and 2.83 grammes of ketamine, contrary to section 4(l)(a) and (3) of the same ordinance (Charge 2); as a result of which he was sentenced to 38 months’ imprisonment by HH Judge Tam (“the judge”). On 25 September 2024, the applicant filed a notice of application for leave to appeal against the sentence on Charge 2.

Facts

2.  The facts admitted by the applicant can be briefly stated as follows. On 5 September 2023, the applicant was intercepted by police outside a public housing estate in Wong Tai Sin in Kowloon. On the applicant were found the ketamine particularised in Charge 1, an ignition key for a private car registration number UX6098 and two mobile telephones. He was arrested for possession of dangerous drugs. Under caution, he claimed that the ketamine was for his own consumption.

3.  The applicant further disclosed that UX6098 was his car. Upon searching the vehicle, a black zipper bag containing the cocaine and ketamine particularised in Charge 2, was found underneath the carpet of the driver’s seat. Cash amounting to HK$26,260 was also found inside two zipper bags in the storage area of the door on the driver’s side of the vehicle. Another mobile telephone was found on the driver’s seat. Accordingly, he was arrested for trafficking in dangerous drugs. Under caution, the applicant claimed that he was forced to traffic in dangerous drugs because he was in debt.

4.  In a subsequent video-recorded interview, he admitted that he had purchased the ketamine in Charge 1 for HK$350 on 5 September 2023 for his own consumption. The street value of the cocaine (HK$8,313) and ketamine (HK$1,698) seized in Charge 2 amounted to HK$10,011 in total^[1]. The street value of the ketamine in Charge 1 was not stated in the admitted facts.

Mitigation

5.  Counsel for the applicant filed an eight-page written submission in mitigation^[2], together with seven Annexes (A to G)^[3], in which he set out the background of the applicant and his family, and the events leading to the present offences, including the financial pressures faced by the applicant as a delivery driver during the COVID pandemic, which had caused him to borrow HK$100,000 from a colleague and to resume abusing ketamine. He had been arrested for possession of dangerous drugs in or around April 2023 (in respect of case number WKCC 1727/2023) and had been granted bail, during which period his wife miscarried and suffered from depression, while his colleague demanded full repayment of his outstanding loan and continued harassing his family. Annexes A and C contained the relevant messages and photographs proving the harassment to the applicant’s wife^[4]. In these circumstances, it was said the applicant was enticed back into trafficking in dangerous drugs.

6.  The applicant had begun receiving counselling for his drug addiction on 31 August 2023 but this had stopped upon his arrest for the current offences (Annex B). The applicant was eventually sentenced to a Drug Addiction Treatment Centre (“DATC”) in WKCC 1727/2023 on 25 September 2023. Mitigation letters written by the applicant (Annex D), his wife (Annex E), his stepson (Annex F) and a former employer (Annex G) were also submitted to the court.

7.  Upon the court’s enquiry regarding the cash found in the car, counsel tendered an explanation stating that the money belonged to the employer of the applicant’s wife, who was a sales officer for a food retailer responsible for collecting payments from customers, and that the money had only been placed in the car temporarily as a matter of convenience^[5]. The judge indicated that the applicant and his wife might have to give evidence on the matter if the court was being asked to accept the explanation and stood the case down for counsel to take instructions^[6]. Counsel subsequently informed the court that the applicant would not give or call evidence in relation to the money^[7].

Reasons for sentence

8.  The judge noted that the applicant had 14 previous convictions, 3 of which were for possession of dangerous drugs. He had last been sentenced to DATC on 25 September 2023.

9.  In respect of Charge 2, the judge adopted a starting point of 49 months’ imprisonment, based on the ‘combined approach’ for sentencing two different dangerous drugs, which he then enhanced by 3 months to reflect the applicant’s role and culpability.

10.  The judge did not accept that the applicant was a mere courier of dangerous drugs, since he “could not explain the presence of the large amount of cash of HK$26,260 in the car” and went on to find that the applicant was using his car for trafficking^[8].

11.  The judge further enhanced the sentence by 5 months to reflect the fact that the applicant had committed the present offences whilst on bail for WKCC 1727/2023 and was trafficking in two different kinds of dangerous drugs. The resulting notional starting point thus became 57 months’ imprisonment.

12.  For Charge 1, the judge adopted a notional starting point of 3 months’ imprisonment in view of the small quantity involved and the fact that the offence was committed whilst on bail. He gave a full one-third sentencing discount for the applicant’s early pleas, considering that there were no other mitigating factors, resulting in sentences of 2 months’ imprisonment on Charge 1 and 38 months’ imprisonment on Charge 2. He then ordered both sentences to run concurrently with each other, making an overall sentence of 38 months’ imprisonment.

Grounds of appeal against sentence

13.  In his Form XI Notice, the applicant claims that his legal representative did not bring to court certain “materials and arguments for mitigation” provided by the applicant, so as to explain the origins of the cash found in his car, thus resulting in a manifestly excessive sentence.

14.  In his letter dated 18 December 2024, the applicant complains that his sentence was excessive, given that he had been remanded for a long time before sentencing and had served 6 months in DATC for his last conviction for possession of dangerous drugs in WKCC 1727/2023. He further argues that had WKCC 1727/2023 and the present case been consolidated and sentenced together, he would have received a lighter sentence. Secondly, he complains the judge wrongly treated the unexplained cash found in his car as an aggravating factor. He explains that he chose not to give evidence on the matter because his lawyers, upon consideration, did not tender his explanation. Furthermore, the applicant did not object to the forfeiture of the money. He cited four District Court cases in Chinese (DCCC 598/2023, DCCC 1058/2023, DCCC 1178/2023 and DCCC 303/2023) for the court’s reference. Finally, he asks for a discretionary reduction in his sentence, as he was forced by circumstances to commit the present offences, and he is remorseful.

15.  In his letter dated 26 January 2025, the applicant in essence complains that the enhancement of the sentence due to his commission of the offences whilst on bail and the cash found in his car (which the judge took into account when considering his role and culpability) was excessive. He further claims that he had sent a letter to police offering to testify against the person who had threatened and enticed him to traffic in dangerous drugs but never received a response from them.

16.  Before me today, the applicant produced various receipts to suggest that there was an innocent reason for the presence of the money in his vehicle. These documents were not produced in the court below.

Respondent’s reply

17.  Mr Wilson Choi, for the respondent, submits that there are no reasonable arguable grounds of appeal. The sentence imposed was neither wrong in principle nor manifestly excessive. The complaint concerning the cash was unfounded because there was no evidence from the applicant to rebut the irresistible inference, which the judge inevitably drew from the available evidence. The reason the applicant was remanded in custody after his release from DATC was that he was not granted bail for the present offences, bearing in mind his previous convictions and the strength of evidence against him.

Consideration

18.  My function upon a leave application is not to pass sentence but to examine the reasons why the judge passed the sentence he did and consider whether there are any reasonably arguable grounds of appeal against that sentence. I do not think the judge’s reasoning can be impugned. He was entitled to regard the applicant in the circumstances as someone who was actually in the throes of trafficking, rather than someone who was simply in unexplained possession of dangerous drugs, and to enhance the starting point accordingly for the applicant’s role and culpability. The drugs, the telephones and the substantial quantity of money in close proximity to each other inside the vehicle were redolent of a drug trafficking operation in progress.

19.  As for the two aggravating features, namely, that the offence had been committed whilst on bail and it was concerned two types of dangerous drugs are well-accepted reasons for enhancing sentence.

20.  In relation to the consolidation of the two sets of proceedings, these were wholly distinct sets of offences and the commission of a similar offence whilst on bail for another offence is a very serious matter, justifying a significantly longer sentence for the second set of offences.

21.  The sentence of 38 months’ imprisonment was within the appropriate range. There are no reasonably arguable grounds of appeal. The application for leave to appeal against sentence must be refused.

Loss of time warning

22.  Having refused the applicant leave to appeal against sentence, I remind him that he has the right to renew his application for leave to the Court of Appeal, but he is also warned that if that Court comes to the conclusion that there was no justification for the renewal of the application, it has the power to order the loss of any time which the applicant has spent in custody pending his appeal.