HKSAR v. MA CHEUK SHING

CACC 507/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 507 OF 2012

(ON APPEAL FROM DCCC 1375 of 2011)

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J U D G M E N T

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Hon Macrae J (giving the judgment of the court):

1.  The applicant pleaded guilty to 2 charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 28 February 2012, he was sentenced to concurrent terms of 16 months’ imprisonment on Charge 1 and 4 years’ imprisonment on Charge 2, making an overall sentence of 4 years’ imprisonment.

2.  On 20 December 2012, the applicant filed notice of his intention to seek leave to appeal against sentence out of time; by which time, of course, he was almost 9 months out of time.  The reason given for the delay in filing any notice of appeal was, according to an affirmation sworn by the applicant on 26 April 2013, that immediately after the hearing on 28 February 2012, he had received advice from the solicitor who had acted for him in the lower court that the sentence was not manifestly excessive and, accordingly, there were no grounds of appeal.  As a result of this advice, he was hesitant about appealing in case the appeal court imposed a heavier sentence upon him should his appeal fail.  A letter from the solicitor concerned dated 13 May 2013, confirming that prior to the hearing in the District Court he had advised the applicant that the starting point for sentence should be about 5½ years and that after the hearing he advised that the sentence was not manifestly excessive and there were no grounds for appeal, has been appended to a further affirmation sworn by the applicant on 4 June 2013.

3.  It is reasonably clear, therefore, that the applicant’s initial decision not to appeal may well have been influenced by the advice given to him by his then solicitor immediately after his sentence.  However, he made no approach to the Legal Aid Department until he was prompted to do so several months later by enquiries he had made of other inmates at the institution where he is currently serving his sentence, which led him to believe that his sentence was too harsh. 

4.  We are not impressed by the reasons for the lateness of filing notice of appeal.  Time limits are important statutory requirements and are there for a purpose, so that cases can be expediently dealt with and finality achieved while the matter is relatively fresh in the minds of all parties involved in a particular case.  If, having made a conscious decision not to appeal, an appellant changes his mind, resulting in a successful appeal and the matter having to go back for reconsideration or retrial by a trial court, unfairness might well result to parties involved in the case; for example, witnesses who have to recall events once again in a case which they thought was over several years ago.  That may not be the concern in this case since the applicant pleaded guilty to the charges and his appeal is against sentence only.  Nevertheless, he maintains that he received and acted upon legal advice, the propriety of which we shall examine, and even his solicitor at the time will have had, by virtue of the delay in the applicant’s decision to appeal, to recall oral advice he rendered some 15 months ago.

5.  The burden on the applicant is therefore an onerous one, which becomes more onerous the longer the delay: see R v Wong Kai Kong[1]. Although we would not, of course, refuse leave if we thought we were “shutting out a substantial and plainly arguable ground of appeal” (see R v Ip Chung Hang[2]), the onus on the applicant is a high one and it is necessary to examine, amongst other things, whether the advice which he received in the lower court was advice which no legal adviser could sensibly have given; and that, by accepting it, the applicant acted to his disadvantage.  To answer that question, we turn to the arguments put forward by Mr Hung who appears for the applicant today, although he did not of course appear for the applicant at his original sentence.

The facts

6.  The applicant was arrested on 21 October 2011 at about 9:30 pm loitering around the bus terminus of a housing estate in Tsing Yi. When approached by police officers, he was found to be clutching a transparent plastic bag containing ketamine, the subject matter of Charge 1.  Also found in his possession was $1490 in cash.  The applicant was arrested and cautioned, to which he replied: “Ah Sir, this packet of K-chai belongs to me, I’m going to take it to sell to another person.” The operative amount of narcotic for sentencing purposes in respect of Charge 1 was 0.76 grammes of ketamine.

7.  The applicant was then taken to his home in the same estate where further drugs and packaging paraphernalia were found in his bedroom.  These included 35 resealable transparent plastic bags containing either ketamine or cocaine, 6 resealable transparent plastic bags with traces of ketamine, a weighing scale, a lighter and a plastic box containing a spoon.  The applicant was again arrested and cautioned, to which he answered: “The Coke and K-chai belong to me.  I am thinking of selling them to earn a living.  Ah Sir, give me a chance.  I know that I was wrong.” The operative amounts of narcotic for sentencing purposes in respect of Charge 2 were 29.51 grammes of ketamine and 3.21 grammes of cocaine.

8.  After being taken to a police station, the applicant was questioned by way of video recorded interview.  In the course of that interview, he disclosed that he had been given the drugs by his supplier, who would then give the applicant the customer’s telephone number, the type and amount of drug required, and the price to be paid.  The applicant would then make the transaction with the customer.

9.  Save to the extent of $300, which had been given to him by his mother, the applicant further accepted that the money found on him when he was intercepted was the proceeds of selling drugs.  The market value of all of the drugs seized was $10,156.32.

10.  The applicant, who was 16 years of age at the time of the offence, had a clear record.

The judge’s sentencing approach

11.  The judge considered that the starting point in respect of Charge 1 should be 2 years’ imprisonment, which he reduced to 16 months’ for the timely plea of guilty.  So far as Charge 2 was concerned, he considered that the ketamine component, as the largest component of the mix of drugs, would have merited a starting point of 5 years’ imprisonment, while the cocaine component would have merited a starting point of “approximately 3 years’ imprisonment”.  However, bearing in mind the totality of drugs in this combination of drugs, he adopted a starting point of 6 years’ imprisonment which he reduced to 4 years’ for plea.  He ordered the sentences on Charges 1 and 2 to run concurrently with each other.

The grounds of appeal

12.  Mr Hung takes two points on the applicant’s behalf.  Firstly, he argues that the starting point in respect of Charge 1 should not have been 2 years’ imprisonment.  A starting point of between 2 and 4 years’ imprisonment would have been appropriate for trafficking between 1 and 10 grammes of ketamine under the guidelines in Secretary for Justice v Hii Siew Cheng[3]; therefore, since the amount of narcotic was below the lower threshold, he submits that the starting point for trafficking in 0.79 grammes of ketamine lay within the sentencer’s discretion.

13.  Secondly, he says that the range of sentence for trafficking in 3.21 grammes of cocaine should have been between 2 and 2½ years’ imprisonment and not “approximately 3 years”.  This led the judge to adopt too high a starting point in respect of Charge 2 for the combination of ketamine and cocaine.

14.  Mr Hung rightly makes no criticism of the decision to make the sentences on both charges concurrent.  However, he submits that the effect of the judge’s approach to these individual starting points in each charge meant that he adopted an overall starting point which was manifestly excessive.

Discussion

15.  On a strictly arithmetical approach, counsel’s first point would have some force.  However, the applicant admitted upon his arrest that he was at the bus terminus in order to take the packet of dangerous drugs, which he was actually holding in his hand, to sell to a customer; and on his person at the time, on his own admission, was $1190 in cash which were the proceeds of earlier trafficking.  On these facts, either he was about to deliver the packet of ketamine or he was waiting for his customer to meet him. Either way, he was intercepted when he was about to traffic in dangerous drugs. The judge was perfectly entitled in his discretion to consider that the starting point on such facts should have been 2 years’ imprisonment.

16.  In any event, the sentence on this charge was made concurrent with the more serious offence, so the argument, even if it were correct, would be academic.

17.  As for counsel’s second point, the more serious quantity of dangerous drug for sentencing purposes was the 29.51 grammes of ketamine.  Leaving aside the cocaine component of the charge, such a quantity of ketamine would, as the judge found under the guidelines in Hii Siew Cheng, have properly merited a starting point of 5 years’ imprisonment.  However, the trafficking in 3.21 grammes of cocaine was hardly a negligible amount of a very serious and much more potent drug.  Accordingly, the judge was right to adopt what has come to be known as “the combined approach” where more than one dangerous drug is found, and to enhance the starting point to reflect the additional cocaine component of the charge whilst bearing in mind the principle of totality. 

18.  In our judgment, the judge cannot be faulted for adopting a starting point of 6 years’ imprisonment in respect of Charge 2.  To have adopted, as Mr Hung submits, a starting point of 5 years’ imprisonment would have been to ignore completely the fact that the applicant was also trafficking in a very much more serious drug, albeit in a smaller quantity.  In arriving at 6 years’ imprisonment, and by making the sentences on Charge 1 and Charge 2 concurrent, the judge clearly had the principle of totality firmly in his mind.

19.  We find no merit in the grounds put forward by Mr Hung on the applicant’s behalf.

Conclusion

20.  We return to the question of the advice which was given to the applicant by his solicitor when he was sentenced in the court below.  In our view, that advice cannot be impugned.  Although the solicitor concerned had said that he thought the overall starting point should be about 5 and a half years’ imprisonment, he would have known, and the applicant would have understood, that sentencing is an art and not an exact science.  Even in cases where there are sentencing guidelines, a sentencing judge has an ambit of discretion in determining the specific sentence to be imposed.  Hence his entirely correct advice to the applicant after the hearing “that the sentence was not manifestly excessive and there was no ground of appeal”; advice which the applicant was originally prepared to accept.

21.  No good grounds for entertaining the application for leave to appeal against sentence out of time have been shown and the application is therefore refused.

[1] [1990] 1 HKC 279

[2] (unrep) CACC 345/1988

[3] [2009] 1 HKLRD 1