HKSAR v. TSANG CHUN HIN

CACC 174/2021

[2021] HKCA 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 174 OF 2021

(ON APPEAL FROM DCCC NO 181 OF 2021)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant pleaded guilty to 4 charges:

(1)  Trafficking in dangerous drugs;

(2)  Possession of dangerous drugs;

(3)  Driving while disqualified;

(4)  Using a vehicle without third party insurance.

2.  On 2 August, 2021 he was sentenced by HH Judge Casewell (“the Judge”) to the following terms of imprisonment:

     Charge 1:  34 months’ imprisonment;

     Charge 2:  8 months;

     Charge 3:  6 months;

     Charge 4:  6 months.

3.  It was ordered that 2 months out of the sentence in respect of Charge 2 and 4 months out of the concurrent sentences of Charges 3 and 4 to be served consecutively, resulting in an overall total sentence of 40 months’ imprisonment. A disqualification order of 3 years was imposed on Charge 3 and Charge 4, to be served concurrently to one another.

4.  On 5 August 2021 the applicant filed a Notice of application for leave to appeal against his sentence.

5.  I refused to grant leave and I now state my reasons.

Facts admitted by the applicant

6.  The applicant was seen by police officers alighting from the driver’s seat of a vehicle and he admitted not to have a driving licence upon interception.  A car key in his possession opened the vehicle that he alighted from, and upon search of the car and his person, the drugs which are the subject matter of Charges 1 and 2 were found:

(1)  Charge 1: 6.67 grammes of ketamine and 6.55 grammes of fluorodeschloroketamine which the applicant admitted to be in possession for trafficking. There were other paraphernalia such as one electronic scale and one metal spoon found;

(2)  Charge 2:  1.2 grammes of “Ice” and 0.14 grammes of cocaine which the applicant admitted was for his own consumption.

7.  The total value of the ketamine and ketamine-derived products was HK$9,318.

8.  In relation to Charges 3 and 4, the applicant was disqualified as a result of a court order on 9 October 2017 for a period of 3 years.  On the day in question, i.e. 1 August 2020, he was still the disqualification order and his driving of the vehicle at that material time was not covered by any third party insurance.

9.  In his record of interview, the applicant said that the car belonged to his father and he had been driving it prior to the time of his arrest.

Mitigation

10.  The applicant was aged 33, single, he has a 15 year old son with his girlfriend who serving sentence in the Drug Addiction Treatment Centre at that time. It was advanced that the applicant, a tattoo artist earning $10,000 per month[1], was the sole bread-winner of the family. He had recently been baptized and promised to turn over a new leaf.  He urged for a lenient sentence in order to be able to take care of his father who just had a surgery.[2]

11.  It was accepted that fluorodeschloroketamine in the first charge was in the same class of the dangerous drugs[3] as ketamine.  The court was urged to adopt a starting point close to 4 years’ imprisonment taking into account that part of the drugs was for his own consumption.[4]

12.  It was urged that a short term imprisonment to be imposed in respect of Charge 2 to run concurrently with the sentence of Charge 1.[5]

13.  For Charges 3 and 4, it was stressed that the offence was committed 2 months before the expiry of the disqualification period.[6]  A short sentence to run concurrently with the sentences of Charge 1 and Charge 2 was urged for. [7] 

14.  For disqualification period, it was conceded that there were no special circumstances to reduce the length of the disqualification period.[8]

Reasons for sentence

15.  The judge noted the applicant’s 11 previous appearances in court which included offences relating both to dangerous drugs and driving.[9]  He was sentenced to 40 months’ imprisonment in 2008 for “trafficking in a dangerous drug”. His last conviction relating to the possession of dangerous drugs resulted in 4 months’ imprisonment.  He had a number of driving offences similar in nature to the present charges between 2012 and 2017 and had received sentences of imprisonment and disqualification.  In 2017, he was sentenced to 4 months’ imprisonment on each of those offences with periods of disqualification.

16.  The judge added up the quantity of ketamine and fluorodeschloroketamine which resulted in an aggregate amount of 13.22 grammes of narcotics.  He applies the sentencing tariff laid out in Secretary for Justice v Hii Siew Cheng[10]. Taking into account his allegation of self-consumption the judge was of the view of that the starting point should be 48 months’ imprisonment.[11]  It was enhanced by 3 months to 51 months to reflect the applicant‘s similar previous conviction.  With the one-third discount for his plea the applicant was sentenced to 34 months’ imprisonment on Charge 1.

17.  For Charge 2, the judge noted the range of sentence for possession of dangerous drugs was between 12 to 18 months’ imprisonment.  He adopted 12 months as the starting point, reduced to 8 months’ imprisonment for the applicant’s plea of guilty.[12]

18.  The judge viewed Charges 3 and 4 were repeated offences.  For each offence, 9 months was adopted as the starting point, reduced to 6 months for the applicant’s plea.  The judge also made a disqualification order from driving of 3 years for each count but consecutive to any existing disqualification order, if any.[13]

19.  Having taken into account the totality principle, the judge noted that these were largely separate and distinct offences and should be reflected in partially consecutive sentences.[14]

Grounds of appeal against sentence

20.  The applicant did not put forward any grounds of appeal in his Form XI.  At the leave hearing, he expressed dissatisfaction with the sentences.  He submits that it was wrong to enhance his sentence in respect of Charge 1 as his previous similar record was over 10 years ago. Charges 2 and 3 arose out of the same transaction and should be ordered to run concurrently.  As he was already sentenced to a rather lengthy sentence for Charge 1, the order of 4 months out of the sentences out of Charges 3 and 4 to be served consecutively was excessive in the circumstances.

Respondent’s submissions

21.  The respondent submits that in relation to trafficking in 13.22 grammes of ketamine, the starting point should be 4 years and 2 months on a purely arithmetic approach.  With the presence of both aggravating and mitigating factors, the ultimate starting point adopted by the Judge could not be faulted. [15]

22.  Charge 2 involved two different types of drugs, the starting point adopted by the Judge was already the lowest in the usual range and as the drugs involved were different from Charge 1.  It is submitted that consecutive sentence of 2 months’ imprisonment to that of Charge 1 was a lenient one.[16]

23.  The respondent submits that the applicant had a poor driving record.  9 months’ imprisonment adopted by the Judge in the present case for Charge 3 and Charge 4 was appropriate[17]:  HKSAR v Chung Ho Yin[18].  Since these were offences distinct from the drugs offences, having taken into account totality, by ordering 4 months of Charge 3 and Charge 4 to run consecutive to the sentences of Charge 1 and Charge 2 was not wrong in principle[19] and the overall sentence was not manifestly excessive.

24.  In the circumstances, it is submitted that there is no merit in the present appeal against sentence.[20]

Discussion

25.  The applicant has an appalling criminal record.  A previous conviction for trafficking in dangerous drugs is an aggravating factor: HKSAR v Herry Jane Yusuph[21].  Although the age of the previous similar offence in the distant past may make a sentencing court more inclined to view it as an isolated offence, in the present case, the applicant continued to commit a number of drug related offences in between.  This is clearly not a case where the applicant can rely on the previous similar conviction as an isolated offence to claim that had successfully kept himself out of trouble in leading a significantly reformed life.  Even taking into account the discount given for self-consumption of an insubstantial amount, the starting point of 4 years and 2 months adopted by the judge was within range.  The starting point of 12 months for the possession charge with the order of 2 months to run consecutively cannot be faulted: the drugs involved are different from that of the first charge and although the drugs were uncovered at the same time, this was a distinct offence.

26.  The driving offences show a flagrant disregard of the law by the applicant.  It is clear that previous sentences of imprisonment could not deter him from reoffending: Chung Ho Yin[22], supra. For similar driving offences he had been sentenced to 4 months’ imprisonment. He is a recidivist and a peril to other road users.  The 9 months starting point with an order of 4 months out of the discounted sentence to run consecutive to the other sentence has already taking into account the totality principle and is in no sense disproportionate.

27.  The appeal is not reasonably arguable and I refuse leave.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal.  He is informed of the consequences of doing so, which may attract a direction of any loss of time spent in custody pending his appeal, the court come to the view that there is no justification for renewal.

[1] Appeal Bundle page 26, at para.1

[2] Appeal Bundle page 21T 

[3] Appeal Bundle page 22M

[4] Appeal Bundle pages 23L-24H; page 27 at para.6

[5] Appeal Bundle page 28 at para.8

[6] Appeal Bundle page 28, at para.11

[7] Appeal Bundle page 28, at para.12

[8] Appeal Bundle page 29, at para.14

[9] Appeal Bundle pages 16-17, at para.10; pages 31-35; similar convictions could also be seen in 2012 [Appeal Bundle page 32]

[10] [2009] 1 HKLRD 1

[11] Appeal Bundle page 18, at para.17

[12] Appeal Bundle pages 18-19, at para.20

[13] Appeal Bundle pages 19-20, at para.21 and 25

[14] Appeal Bundle page 19, at para.22

[15] Written submissions of the Respondent, page 6, at paras.28-29

[16] Written submissions of the Respondent, page 7, at para.30

[17] Written submissions of the Respondent, page 7, at paras.31-33

[18] [2021] HKCA 1265

[19] Written submissions of the Respondent, page 8, at para.35

[20] Written submissions of the Respondent, page 8, at para.36

[21] [2020] HKCA 974 at paragraph 71

[22] At paragraph 41