HKSAR v. SUM KA WA

CACC 144/2023, [2024] HKCA 208

On Appeal From [2023] HKCFI 2275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 144 OF 2023

(ON APPEAL FROM HCCC NO 199 OF 2020)

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BETWEEN

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J U D G M E N T

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1.  The applicant pleaded guilty to three charges before a magistrate, on 24 August 2020, as a result of which he was committed to the High Court for sentence. On 23 February 2023, he confirmed his pleas of guilty before Toh J (“the judge”) to one count of Trafficking in dangerous drugs ^[1](“Count 2”) and one count of Manufacturing a dangerous drug^[2] (“Count 4”); as well as a joint count with Cheng Ke-fung (“D1”) of Trafficking in dangerous drugs (“Count 3”). The applicant was sentenced to a total sentence of 26 years and 10 months’ imprisonment.

2.  The present offences arose out of events on 19 October 2018, on which date D1 was intercepted by police officers when leaving a residential flat in Yuen Long (“the Flat”). A substantial amount of cocaine and cocaine hydrochloride was found in the possession of D1 as he was leaving the Flat; these drugs formed the basis of individual counts against D1 (Count 1) and the applicant (Count 2). Subsequently, the applicant was arrested inside the Flat, where an even more substantial quantity of dangerous drugs was found, including cocaine, cocaine hydrochloride, heroin hydrochloride, ketamine and methamphetamine hydrochloride (commonly known as “Ice”), which together formed the subject-matter of Count 3. Also found in the premises were an abundance of paraphernalia and containers used for manufacturing and packaging cocaine, some of which carried the applicant’s thumbprints and DNA. This formed the basis for Count 4, which alleged that the applicant had unlawfully manufactured an unspecified quantity of cocaine at the Flat on the day of offence.

3.  In passing sentence on 13 July 2023, the judge said this was not a “one-off” event[3], but a “fairly large” manufacturing operation^[4]. She further found that the applicant, though not the mastermind, was “a custodian of the whole operation”^[5]. The judge arrived at her sentence by ordering 4 years of the 22 years’ imprisonment on Count 3 to run partly consecutively to the 16 years and 10 months’ imprisonment on Count 2, giving a combined sentence of 20 years and 10 months. She then ordered 6 years of the 22 years’ imprisonment passed on Count 4 to run partly consecutively to the combined sentences on Counts 2 and 3; thus making an overall sentence of 26 years and 10 months’ imprisonment.

4.  In support of the two general grounds of appeal, namely that the final sentence was too high (“Ground 1”), and was either wrong in principle and/or manifestly excessive (“Ground 4”), Mr Percy, on behalf of the applicant, argues that the judge erred in not ordering the sentences on Counts 2 and 3 to run wholly concurrently with each other, contrary to the approach adopted in such cases as HKSAR v Lam Chi Wa^[6] and HKSAR v Wan Lau Mei^[7] (“Ground 2”); and in not ordering the sentence on Count 4 to run wholly concurrently with the sentences on Counts 2 and 3 in all the circumstances of the case: see HKSAR v Kwok Shiu To^[8] (“Ground 3”). Mr Percy further questions the correctness of the notional starting point on Count 4, and whether the judge had properly considered the factors set out in R v Cheung Wai Kwong^[9] and HKSAR v Kan Kong Fai^[10], other than as to the applicant’s role.

5.  Ms Lee, on behalf of the respondent, concedes that Ground 2 is reasonably arguable and that the ordering of part of the sentence on Count 3 to run consecutively to Count 2 was wrong in principle^[11]. However, in response to Ground 3, she submits that since Manufacturing of dangerous drugs is a more serious offence than Trafficking in dangerous drugs, the applicant’s role and criminality justified part of the sentence on Count 4 being ordered to run consecutively to the total sentence on Counts 2 and 3. Finally, Ms Lee accepts that while the overall sentence “might be on the high side”, it was “by no means manifestly excessive on the facts and circumstances of the case”^[12]. Accordingly, the respondent’s position will be that, despite the judge’s erroneous methodology, the overall sentence should not be disturbed.

Consideration

6.  These were, as the judge remarked, “extremely serious charges”^[13], which involved not only the manufacturing of cocaine, but also the trafficking in multiple types of dangerous drugs, namely, cocaine, cocaine hydrochloride, heroin hydrochloride, ketamine and “Ice”. The total estimated street value of all the drugs seized, leaving aside the manufacturing capacity of the operation concerned, was, as the judge described it, a “staggering” HK$38,181,941.45[14]. Moreover, the applicant had a previous conviction recorded in the High Court in 2009 for trafficking in dangerous drugs[15]. There were, therefore, some significant aggravating features to be considered in sentence, yet the judge does not appear to have mentioned in her reasons either the multiplicity of dangerous drugs involved or the applicant’s previous conviction for a similar offence.

7.  On the other hand, as Mr Percy points out, the resulting sentence of 26 years and 10 months’ imprisonment following a timely plea of guilty would suggest a starting point of over 40 years’ imprisonment, which would be one of the longest ever contemplated in this jurisdiction.

8.  In view of the respondent’s concession as to the way in which the sentence was reached, the applicant’s grounds of appeal are reasonably arguable. Whether and, if so, to what extent the ultimate sentence may be affected will be a matter for the Court of Appeal in due course.

9.  Leave to appeal is accordingly granted on all grounds of appeal.

10.  Finally, I draw the applicant’s attention to Practice Direction 5.5 concerning the Submission of Authorities before the Court of Appeal, among other courts, which came into effect on 1 January 2018:

“For the removal of doubt, practitioners are reminded that the Law Reports themselves only should be cited when the case to which reference is intended to be made is published in them. Only if that case does not appear in the Law Reports should other law reports or publications be cited…”

One of the reasons for this practice is that there is often a benefit to all parties (including the Court) to be derived from reading the headnote to a particular authority, which has, in the case of the Hong Kong Law Reports & Digest, been approved by the issuing Court itself. All seven of the authorities cited in the applicant’s List of Authorities have been reported in either the Hong Kong Law Reports & Digest or the Hong Kong Cases, yet only the unreported decisions have been cited and furnished to the Court. The breach of the Practice Direction should be remedied by the time of the appeal.