HKSAR v. CHUNG HO YIN

CACC 75/2020

[2021] HKCA 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 75 OF 2020

(ON APPEAL FROM DCCC NO 558 OF 2019)

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REASONS FOR JUDGMENT

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1.  The applicant pleaded guilty to 2 sets of traffic offences: Dangerous Driving, Driving whilst disqualified; Using a motor vehicle without 3^rd party insurance (Charges 1-3); Driving whilst disqualified; Using a motor vehicle without 3^rd party insurance (Charges 5 and 6); and 2 offences of trafficking in dangerous drugs (Charges 7 and 8).

2.  He was sentenced by HH Judge K Lo (“the Judge”) to the following terms of imprisonment:

Charge 1:  20 months imprisonment;

Charge 2:  4 months;

Charge 3:  6 months;

Charge 5:  4 months;

Charge 6:  4 months;

Charge 7:  2 years 6 months;

Charge 8:  31 months

3.  It was ordered that the sentences in respect of charges 1 to 3 and charges 5 and 6 each to run concurrently; with 1 month and 10 days out of the sentences in respect of charges 5 and 6 to run consecutively, making that a total of 21 months and 10 days.  The Judge then ordered 6 months and 20 days out of the sentence in charge 7 to run consecutively to the sentence for charge 8, making that a total of 37 months and 20 days. The Judge then ordered the total sentence in respect of charges 1 to 6 to run consecutively to the total sentence in respect of charges 7 and 8, which resulted in 58 months and 30 days imprisonment.

4.  The Judge also imposed a disqualification order for the traffic offences which is not the subject matter of the present application.

5.  The applicant takes no issue with the individual starting point and the final sentence of each charge.  I am not going to recite the facts in great details, suffice it to say that the 2^nd set of traffic offences were committed 3 weeks after the first.  On that occasion he was seen to have alighted from a car, which was later found to have been lent to him, with a male passenger and walked towards Kwai Shing West Estate Shopping Centre while the male passenger went to the bus terminus.  The applicant was intercepted outside a shop.  Upon search, drugs the subject matter of the 7^th charge were found:

(1)  3 plastic bags with 1.22 grammes of a powder containing 1.03 grammes of ketamine; and

(2)  7.3 grammes of a solid containing 4.92 grammes of cocaine. 

The applicant was also in possession of two mobile phones, two notebooks and cash of $7,750.

6.  Applicant’s place of residence in Kwai Shing West Estate, Kwai Chung was searched and in the living room, 18 plastic bags containing the following drugs were found:

(1)  8.39 grammes of a solid containing 6.26 grammes of ketamine;

(2)  1.34 grammes of a powder containing 1.09 grammes ketamine;

(3)  0.5 grammes of a solid containing 0.37 grammes of cocaine; and

(4)  0.86 grammes of a solid containing 0.82 grammes of ‘Ice’.

(8^th charge)

An electronic scale, two notebooks, and 20 SIM cards were also found.

7.  At a video recorded interview, the applicant claimed that all the drugs seized were for his own consumption. However, during mitigation, whilst accepting all the drugs in the 7^th charge were for trafficking, it was advanced on his behalf that about 40% out of the total weight of the narcotics of the drugs in the 8^th charge were for his self-consumption.

8.  Two grounds were advanced. The first ground which complained about the insufficiency of the discount for self-consumption was abandoned at the leave hearing.  The second ground concerns whether the judge, by imposing a total eventual sentence of 58 months and 30 days with a notional starting point exceeding the jurisdictional limit of 7 years, has sufficiently taken into account the totality principle and whether the overall sentence was manifestly excessive.

9.  The respondent, represented by Miss Hermina Ng, SPP, opposed the present application. She submitted that the judge had already taken into account the totality principle. The ultimate overall sentence has properly reflected the culpability of the applicant and the grounds advanced by the applicant is not reasonably arguable.

Discussion

10.  The present case involves 3 separate categories of offences:  the first two related to driving offences which took place 21 days apart; the third relates to 2 parcels of drugs of different nature which the applicant claims that part of the drugs in charge 8 was for his own consumption.  It is clear from the facts, and accepted by counsel at the hearing, that the applicant committed the second set of traffic offences whilst on his way to deliver the drugs, so he was an “actual (or direct) trafficker” and not just a courier or a storekeeper[1], and there is a link between charges 5 and 6, and charges 7 and 8.

11.  In considering individual sentence for the 7^th and 8^th charge, what the judge did was this.  For charge 7, she took the starting point of 3 years and 7 months as suggested by counsel, enhanced 2 months for the “cocktail drugs” factor, and sentenced him to 2 years and 6 months imprisonment on his plea.

12.  For the 8^th charge, the judge accepted the applicant’s claim that about 40% out of the total weight of the narcotics was for self- consumption.  She adopted 52 months as the starting point as suggested by counsel, enhanced 3 months for the “cocktail” nature of the drugs, reduced by one-third for his plea to 36 months and 20 days’ imprisonment.  The judge then discounted a further 5 months and 20 days, having found that his claim of self-consumption constituted a significant proportion of the drugs.  The applicant was sentenced to 31 months’ imprisonment.

13.  The judge then considered the aggregate amount of drugs in respect of the 7^th and 8^th charge, namely, applied the three tests, i.e. the absurdity test, conversion test and ratio test to counter check, concluded the appropriate starting point should be 57 months’ imprisonment.  That was enhanced for 4 months to take account of the ‘cocktail’ factor, reduced one-third by his plea, and then the judge found the portion claimed for self- consumption did not constitute a significant proportion of the total drug seized, only afforded him 3 months’ discount by reason of his self-consumption bringing the total sentence to 37 months’ and 20 days’ imprisonment.

14.  Macrae VP, in Herry Jane Yusuph, supra, laid out the 6 steps process in sentencing for drug trafficking.  In particular, the judgment in HKSAR v Manalo[2] was said to have laid down a seemingly discretionless approach once the label of ‘courier’ is applied to a defendant and was thus said to have been made per incuriam[3].  The role and culpability of the defendant based on the evidence before the court has to be assessed after identifying the relevant guideline band applicable to the quantity of drugs involved.[4]

15.  In the present case, as mentioned above in paragraph 10, given how the drugs in charges 7 and 8 were found and the circumstances of the applicant’s arrest, there was clear evidence that he was an actual or direct trafficker.

16.  However, nowhere in the reasons for sentence could be seen that the judge has assessed the applicant’s role and culpability.  All that was done was to mechanically identify a starting point, enhanced it for aggravating feature and then discounted for his plea and self-consumption.

17.  The judge, whilst stating that she had taken into consideration the totality principle, ordered that the aggregate sentence in respect of charges 1 to 6 to run consecutively to the aggregate sentence of charges 7 and 8.  The fact that the drugs offences were part and parcel of the 2^nd set of traffic offences was not reflected in the sentences, thus the sentences did not show “whether the sentence for one offence comprehends and reflects the criminality for the other offence[5]. The methodology adopted by the judge may have an impact on the overall sentence and I am of the view that this ground is reasonably arguable.

18.  I am concerned about the sentence being expressed in days.  The strict discretionless arithmetic approach was criticized in paragraph 82 of Herry Jane Yusuph, supra:

“82. … The arithmetical approach is at its most obvious and extreme where sentences are arrived at with such precision that they are expressed in years, months, weeks and even days. If a judge of the High Court or District Court (different considerations may apply in a magistrate’s court) finds himself or herself resorting to quantifying a starting point or an eventual sentence for trafficking in a term that involves weeks or days, then he or she is almost certainly adopting a discretionless approach to sentencing based on arithmetic alone, rather than a discretionary approach based on the gravity of the offence (as reflected principally in the nature and quantity of the dangerous drugs concerned) and the role and culpability of the defendant.”

19.  The present case, in my view, is such a case.  Therefore, I grant leave for the applicant to argue his 2^nd ground and should the applicant find it necessary to amend those to take account of my judgment, he is given 14 days to do so after the date of handing down of this judgment.