HKSAR v. CHAN KAM HUNG, DANNY

CAC C 92/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 92 OF 2011

(ON APPEAL FROM HCCC NO. 241 OF 2010)

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1. On 15 February 2011, the applicant pleaded guilty in the Court of First Instance before Deputy Judge Patrick Li to a charge of trafficking in a dangerous drug, namely, 491.1 grammes of a powder containing 412.25 grammes of ketamine.  The applicant was sentenced to a term of six years and nine months’ imprisonment.

2. At the time of his arrest, in addition to the dangerous drug, the applicant was found to be in possession of $13,100 in cash and six mobile telephones.  Upon the application of the prosecution, these were forfeited.

3. The applicant sought leave to appeal his sentence on the basis that it was wrong in principle and/or manifestly excessive.  In addition, he sought to challenge the order of forfeiture on the basis that, if it was not for the incompetence of his counsel, an order returning the cash and the telephones to him may have been made.

4. Having received the evidence of the applicant’s trial counsel Mr Chan Wing Ho, and having heard submissions from the applicant himself, we dismissed the application saying that we would give our reasons later.  We do so now.

The facts

5. The facts are simple enough.  On the morning of 10 May 2010, the police came upon the applicant who was seated in the driver’s seat of a parked car.  The applicant had a plastic bag on his lap.  The dangerous drug was found in the bag.  When cautioned, the applicant admitted that he had been caught “red-handed”.

6. The cash of $13,100 was found on his person, the six mobile telephones were found with him in the vehicle.  The applicant later admitted that the car belonged to him.

Sentence

7. The judge assessed sentence in accordance with the guidelines set down by this Court in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  In so doing, he took as his starting point a sentence of 10 years and two months’ imprisonment.  In light of the various matters of mitigation put before him and the fact that the applicant had pleaded guilty, that starting point was reduced by one-third to six years and nine months’ imprisonment.

8. Understandably, the applicant made no complaint as to the correctness of the starting point.  His single complaint was that the judge failed to take into account as a material matter of mitigation evidence that prior to his arrest the applicant had made regular donations to a children’s charity, the sum of those donations exceeding $4,000.

9. Evidence that the donations had been made was put before the judge.  He was aware of it just as he was aware of other matters of mitigation advocated on the applicant’s behalf, for example, the fact that the applicant supported an aged mother and that he deeply regretted his commission of the offence.  While the applicant’s support of a charitable cause was laudable, having regard to the seriousness of the crime, it was not a matter capable of weighing heavily in the balance.  This, and the other matters of mitigation advanced on behalf of the applicant, were all properly subsumed into the one-third discount granted to the applicant upon his plea of guilty.

10. The sentence was not wrong in principle nor was it manifestly excessive.

Forfeiture

11. After conviction, the prosecution made an application for the forfeiture of the cash and the mobile telephones found in the possession of the applicant at the time of his arrest.  The basis of the application was not stated.  However, various observations by the judge make it clear that the application was determined pursuant to s. 102(1)(c) of the Criminal Procedure Ordinance, Cap 221.

12. S. 102(1)(c), read with102(2)(b)(ii), provides that, where it appears to the court that any property has been used in the commission of an offence, the court may make an order for the forfeiture of that property.

13. The evidence supporting an order for forfeiture was cogent.  According to the applicant, he was at the time unemployed and living with his family.  It was said on his behalf that he committed the offence because of financial hardship.  However, despite his protestations of poverty he was found in possession of a sum of over $13,000.  In respect of this money, it was said on his behalf that part of it represented pay he had received when earlier employed, part of it represented ‘red packet’ money and part of it was money entrusted to him by people with whom he used to work.  There was however no answer to the very obvious question: if what he said was true, why was he carrying that money at that time?  As for the six mobile telephones, it was said on behalf of the applicant that he used his telephones when working from time to time in the parallel export market, taking goods across the border.  Again, however, there was no answer to the very obvious question: why was it necessary to have all the telephones on him at that time?

14. It is to be remembered that the applicant, when apprehended, was seated in his own car in some manner going about the business of trafficking in the dangerous drug in his possession.  In such circumstances, the entirely justifiable inference could be – and was – drawn that not only was the applicant coming into possession of large amounts of cash by way of dealing in the drug but that – the exercise of trafficking being a dangerous criminal enterprise – security no doubt required that he use different telephones to contact different customers.

15. The applicant’s complaint was that, notwithstanding the strength of the case against him, he was so poorly represented by his counsel that any opportunity by way of a coherent set of submissions to raise a doubt in the mind of the court was lost to him.  The applicant said that he was not given enough time to be able to give full and proper instructions and that, in the result, what was said on his behalf was equivocal, sometimes contradictory and rushed.

16. Mr Chan, his trial counsel, assisted us by submitting an affidavit and by giving testimony under oath at the hearing.  Mr Chan accepted that he had been unable to take instructions from the applicant at the remand prison but said that on the morning of the hearing he spent more than half an hour with the applicant.  One of the difficulties he faced, said Mr Chan, was that the instructions given to him tended to shift.

17. We have had the benefit of being able to read the transcript of the forfeiture proceedings.  A detailed analysis of what was said and done will not advance matters.  Suffice to say that, in our view, counsel was not incompetent in his representation of the applicant.  The applicant was adequately represented.

18. The true point in issue, we think, is that, in light of the evidence that was placed before the court, whether or not opposition to the application may have been more coherently advocated, an order for forfeiture was inevitable.