HKSAR v. CHAN WING, TOBY

CACC 288/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 288 OF 2016

(ON APPEAL FROM HCCC NO 470 OF 2015)

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REASONS FOR JUDGMENT

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

1.  Following her plea of guilty before then Deputy Judge D’Almada Remedios (“the judge”) on 5 September 2016, the applicant was convicted of one count of trafficking in 6.59 grammes of ketamine; 10.21 grammes of cocaine; 12.73 grammes of methamphetamine hydrochloride (commonly known as “Ice”); and 0.33 grammes of nimetazepam (all being the narcotic values of the dangerous drugs concerned), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, the applicant was sentenced to 4 years and 10 months’ imprisonment.

A chronology of the relevant background

2.  The applicant filed a notice of application for leave to appeal (by way of Form XI) on 9 September 2016, seeking to appeal against her sentence.  No grounds of appeal were set out even in general terms in her Form XI.  Legal aid was refused on 7 November 2016 and the matter was set down for hearing before a Single Judge of the Court of Appeal on 16 March 2017.  However, on 9 March 2017, one week before the hearing fixed before the Single Judge, the applicant filed a Notice of Abandonment in respect of her application for leave.  Accordingly, her appeal against sentence was formally dismissed in writing the same day.

3.  On 21 March 2017, the applicant filed an affirmation with the court seeking to treat her previous abandonment as a nullity, and to revive her appeal against sentence.  No particulars were given as to why she had abandoned her appeal, nor were any grounds of appeal set out.  The applicant merely averred: “I … have got new grounds now”.  A further application for legal aid was refused on 19 May 2017.  The matter has now come before two judges of this Court to consider her application to treat her earlier abandonment as a nullity and, if necessary, to consider her appeal against sentence.

4.  On 29 May 2017, the applicant wrote a letter to the court asking for more time to engage a lawyer and for the matter to be adjourned.  On 8 June, the applicant was advised by the court that today’s hearing would remain as listed but that she could renew her application for an adjournment at the hearing.  If the application for an adjournment were to succeed, the hearing would be re-listed: if it were to fail, she would be expected to argue the application to treat her abandonment as a nullity.

Consideration

5.  The applicant has not provided us with any valid reasons justifying an adjournment.  She has, even at the hearing, not articulated or suggested any grounds of appeal at all in respect of sentence, while her wish for further time for her family members to obtain the services of a lawyer is no more than a vague hope, which has no realistic prospect of being fulfilled.  Indeed, none of her family members were present in court at the hearing.  Accordingly, her application for an adjournment was refused.

6.  In respect of the application to treat her abandonment as a nullity, the applicant claims that she was told by a Correctional Services Officer that, since she was not ready for her leave application and wanted an adjournment of that hearing, she could simply “cancel” her appeal and then re-instate it when she was ready.  The same Officer subsequently told her that unfortunately the court had recently changed the system and she could no longer do it “this way”.

7.  We have no hesitation in rejecting this explanation, such as it is.  First, this Court has not recently changed its long-held view about the seriousness and solemnity of the step involved in abandoning an appeal, or the exceptional circumstances which might justify treating such an abandonment as a nullity.  Secondly, we cannot accept that a Correctional Services Officer would give such extraordinary and wrong advice.  Thirdly, the applicant would have known from her fellow inmates the serious legal step she was taking when she abandoned her appeal.

8.  No valid reason has been placed before us in proper form to explain why the applicant’s mind may not have gone with her act of abandonment on 9 March 2017.  We do not accept that the applicant was misled, or did not know, or did not understand the nature of what she was doing, or that for any other reason she did not intend to abandon her appeal. The applicant is a 30-year-old married mother, who is experienced in court procedures, having appeared before the courts on three previous occasions.  We are entirely satisfied that she knew what she was doing when she abandoned her appeal.

9.  That is enough to dispose of this application. However, since the applicant is unrepresented, and since there is an issue as to whether we should order “loss of time”, we have gone on to examine the papers in this appeal in order to ensure that something obvious has not been overlooked in the applicant’s favour, which might have a bearing either on her application to treat her abandonment as a nullity or on her appeal against sentence.

The facts

10.  At shortly before midnight on 6 March 2015, a team of police officers were conducting a dangerous drugs operation at the Noble Hotel, 9-10 Tak Hing Street, Yau Ma Tei, in Kowloon.  They gained entry to Room 530 (“the Room”), where a female with the surname “Hui” and two other males were found.  Upon a search of the Room, a number of items were found, including one paper packet containing one plastic straw segment and 0.07 gramme of a powder containing ketamine; two plastic bags containing a total of 0.58 gramme of a powder containing 0.26 gramme of ketamine; three bottles adapted for inhaling Ice; two lighters and a measuring cup containing a plastic spoon.

11.  The police also found a key to Room 527, placed on a wooden table of the Room.  Police officers therefore decided to search Room 527 as well.  Inside Room 527, the applicant and a man were found sleeping. A large number of items were found on a table next to their bed:

(a) Three plastic bags containing a total of 26.5 grammes of a powder containing 6.33 grammes of ketamine;

(b) Two banknotes, each folded into a packet containing 0.04 gramme of a powder containing ketamine and 0.17 gramme of a powder containing 0.12 gramme of cocaine respectively;

(c) Four foilpacks containing a total of 33 tablets containing 0.33 gramme of nimetazepam;

(d) Twelve plastic bags containing a total of 12.88 grammes of a crystalline solid containing 12.73 grammes of Ice;

(e) Two plastic bags and 28 capsules containing a total of 15.85 grammes of a solid and a powder containing 10.09 grammes of cocaine;

(f) Four cigarettes containing a total of 0.07 gramme of a powder containing cocaine;

(g) Two plastic bags containing a total of 92.6 grammes of soda powder;

(h) One bottle adapted to be used for the inhalation of Ice as well as four glass tubes;

(i) One electronic scale;

(j) One box of empty transparent re-sealable plastic bags; and

(k) Two notebooks containing details of drug transactions.

12.  The applicant was arrested and cautioned, upon which she said the drugs found in Room 527 belonged to her and had nothing to do with anyone else.  At the time of arrest, she was in possession of HK$64 in cash.

13.  In a subsequent video recorded interview, the applicant made full admissions to trafficking in the dangerous drugs.  She claimed ownership of all the drugs found inside Room 527, in which she had been living alone for almost three months.  The applicant further claimed that the bottle seized was used for inhaling Ice; the soda powder was used as a mixing agent in order to add weight to the ketamine for a better price; the empty transparent re-sealable plastic bags were used to pack drugs for sale; and the electronic scale was used to weigh the drugs to the required quantity.  She claimed that she sold one gramme of Ice for HK$200 to HK$300.

14.  The applicant further told the police that Hui, the female found in the Room, was a friend who had been buying ketamine from the applicant.  The applicant had given Hui the key to Room 527 and had sold her the ketamine found inside the Room.  She also told Hui that a man would come and smoke Ice in the Room as well.  The bottles found inside the Room were for customers to consume Ice there.  She further confirmed that the notebooks seized contained details of her drug transactions.  The estimated street value of the seized dangerous drugs was HK$26,961.

15.  By pleading guilty, the applicant admitted that the seized dangerous drugs were in her possession for the purpose of unlawful trafficking.

Mitigation

16.  The applicant was 29 years old at the time of her sentence.  She had three previous convictions for possession of dangerous drugs; on each occasion, she was sentenced to be detained in a Drug Addiction Treatment Centre.

17.  The applicant’s counsel at the sentencing hearing submitted to the court that the applicant had resorted to trafficking in drugs because of her inability to cope with the stresses of life, exacerbated by her gambling debts.  It was further suggested that the applicant was concerned that her 4-year-old son, who appeared to have learning difficulties, might have to leave foster care because he was not able to attend a normal kindergarten.

18.  As for the approach to sentencing for a multiplicity of dangerous drugs, counsel contended that the ‘combined approach’ was appropriate.  It was further submitted, by reference to HKSAR v Wong King Kau[1], that nimetazepam should be equated with ketamine and Ecstasy and notionally added to the quantity of ketamine for sentencing purposes.

19.  It was put on the applicant’s behalf that she was herself a drug abuser.  This was demonstrated by the positive result for amphetamines in the urine test conducted upon the applicant’s admission to Tai Lam Centre for Women upon arrest.  It was also asserted that of the twelve plastic bags seized in Room 527, seven of the smaller bags wrapped in chewing gum wrapper containing 3.46 grammes of Ice[2] were for the applicant’s own consumption.  However, counsel acknowledged that if there was a demand for the Ice that she intended to use for her own consumption, she would consider selling it.

20.  Given that the applicant had been forthcoming with her admissions and had pleaded guilty, and that she only had a record of possession of dangerous drugs rather than trafficking, counsel urged the court to be as lenient as it felt able within the guidelines laid down by the Court of Appeal.

Reasons for sentence

21.  The judge rejected the assertion that some of the drugs were for the applicant’s own consumption.  She did not consider that 27% of the total amount of drugs seized was a significant portion for the applicant’s own consumption, even though she accepted that the applicant was drug dependent and had tested positive for amphetamines.

22.  The judge noted that the applicant not only trafficked in dangerous drugs by selling to customers, but she also provided a place for customers to consume the drugs.  The applicant was providing a “one-stop shop” for both the sale and consumption of dangerous drugs.  Although the judge considered enhancing the sentence in view of this fact, she ultimately decided not to do so.

23.  Of the quantity of dangerous drugs involved, the judge accepted that the guidelines in respect of ketamine and Ecstasy should apply to nimetazepam, thus effectively amounting to a total of 6.92 grammes of ketamine for sentencing purposes[3]. The judge then considered that of the dangerous drugs seized, Ice was the most potent drug; hence, the conversion test should be based on the relevant guidelines relating to Ice.

24.  Having converted the quantities of ketamine and cocaine to their equivalent of Ice, the judge concluded that:

(a) 6.92 grammes of ketamine was equivalent to 1 gramme of Ice;

(b) 10.21 grammes of cocaine was equivalent to 5 grammes of Ice.

25.  The judge held that if all drugs were treated as Ice, the total quantity would be about 18 grammes[4] of Ice, the starting point for which, in accordance with the guidelines in HKSAR v Tam Yi Chun[5], would be 7 years and 3 months’ imprisonment.  Accordingly, the judge adopted a starting point of 7 years and 3 months’ imprisonment, afforded the applicant a discount of one-third for her plea of guilty and sentenced her to 4 years and 10 months’ imprisonment.

Grounds of appeal

26.  As we have already noted, the applicant did not advance any grounds of appeal against sentence in her original Form XI.  Nor did she identify any grounds of appeal in her affirmation of 21 March 2017.

The respondent’s reply

27.  Mr Joe Hui, on behalf of the respondent, submits that the starting point adopted by the judge could not be said to be excessive, since 12.73 grammes of Ice would alone attract a starting point of about 7 years and 2 months’ imprisonment on a strictly arithmetical basis.  The judge also applied the conversion test to cross-check the appropriateness of the starting point she had in mind.  Mr Hui submits that there was an aggravating feature inasmuch as the applicant was trafficking in several different types of drugs, and thus able to cater to a far wider market.  He argues that the judge was lenient in adopting the sentencing approach she did, because the effect was to treat the applicant’s trafficking activities as involving only one type of dangerous drug.

28.  The respondent further submits that the judge was right to refuse any discount for the applicant’s assertion that part of the seized dangerous drugs was for her own consumption.

Further consideration

29.  Having examined the papers in this case, we do not see any basis for treating the applicant’s abandonment of her appeal against sentence as a nullity. Consequently, since we do not have jurisdiction to hear this application, it is not appropriate for us to engage in a detailed consideration of the merits of the applicant’s complaints.  Nevertheless, since, as we have said, the applicant is unrepresented, and an issue arises as to whether a “loss of time” order should be made, we shall, for her benefit, make some comments on the two important steps in any calculation of sentence, namely the determination of an appropriate starting point and the discount to be awarded to an offender to reflect the mitigation advanced on her behalf.

30.  In respect of the former it could be said that the judge was generous to the applicant in not enhancing the starting point.  There were two aggravating features which would have merited such an enhancement.  They are: (i) the applicant was providing not only dangerous drugs to sell but facilities in which to consume them; (ii) the applicant was providing four different kinds of dangerous drugs, thus catering for a wider market of drug consumers: see HKSAR v Wan Lau Mei[6].

31.  As to the discount to reflect the mitigation, the only issue for this applicant was the claim made on her behalf that some of the drugs were for the applicant’s own consumption.  This assertion, however, was being put on the basis that she would sell what she might otherwise have kept for herself if a potential purchaser came along.  As defence counsel explained[7]:

“But, of course, if she had sold the ‘Ice’ of the other five bags and if somebody wanted to buy more, she would, of course, consider selling what she had kept for herself. But the situation was that some of the ‘Ice’ on her, she had intended to be for her own use.”

32.  When a claim of self-consumption is advanced in this way, particularly when it is not supported by evidence, it is difficult to see how a judge can do other than treat all the drugs as available for trafficking.

33.  It follows from what we have said that, had we agreed to treat the applicant’s abandonment of her appeal as a nullity, and had the application proceeded with an attack on the judge’s determination of a starting point or her refusal to award a discount for self-consumption, the application for leave to appeal against sentence would have been refused.

“Loss of time”

34.  The applicant’s conduct in this appeal in pursuing her application for leave to appeal, abandoning that appeal a week before the Single Judge was due to consider it, and then, 6 days after the vacated hearing before the Single Judge, applying to the full Court to treat her abandonment as a nullity without any valid grounds being put forward, has wasted considerable public resources both on the part of the prosecution, which has been required to meet these applications, and on the part of the court which has had to list this matter first before a Single Judge and then before a full Court of Appeal of two judges.  Yet neither her application to treat her abandonment as a nullity nor her application for leave to appeal against sentence have any merit whatsoever.

35.  Quite apart from the waste of public funds involved, the applicant has successfully managed to have her appeal listed before a Court of Appeal of two judges (who have both had to read the papers in this appeal and deliver a considered judgment) without going before a Single Judge on a leave application, when it would undoubtedly have been refused. Whether the applicant intended this result, it is certainly the effect of her manoeuvring.  In these circumstances, we invited the applicant to address us as to why she should not be penalised with a “loss of time” order.

36.  In addressing that issue, the applicant has claimed that she does not know what “loss of time” means.  When it was pointed out that the Court’s power to order “loss of time” is specifically referred to in Note 3 of the Form XI which she signed, and that it would be extremely unlikely that she had not been made aware of the Court’s power, if only from her fellow inmates, she pleaded that she was worried about arrangements for her son who had learning difficulties, and wanted to get out of prison as soon as possible in order to see to them.

Decision

37.  We are satisfied that the applicant has wasted this Court’s time and resources, as well as those of the prosecution, by her attempt to resuscitate her appeal by treating her abandonment as a nullity, in circumstances when there was no merit whatsoever in either her application to treat her abandonment as a nullity or in her substantive appeal against sentence.  Indeed, she must have recognised the latter when she abandoned her appeal, yet for no valid reason whatsoever, subsequently sought to treat that decision as a nullity.  At no stage, until the hearing, did the applicant attempt to explain why her act of abandonment should be nullified, and she has now accepted before us that she never did have any grounds of appeal against sentence.  The effect of her conduct has been to require two judges of this Court, as well as counsel for the respondent, to meet her applications by reading into the case.

38.  Had the applicant pursued her application for leave to appeal before the Single Judge, she would have had her application refused and been warned that if she renewed her application to the Court of Appeal, she risked that Court ordering a “loss of time” of some of the period spent awaiting her appeal for renewing an unmeritorious appeal.  Had she gone ahead to appeal following the Single Judge’s refusal of leave, the Court of Appeal may well have ordered the applicant “loss of time”.  Yet, by the process she has engineered, she has avoided the filtering process of the Single Judge mechanism and required two judges of the Court to hear her application.

39.  In our judgment, the applicant has pursued a wholly unwarranted application before us, which has wasted the time and resources of this Court, as well as of the prosecution.  It has also meant that other perhaps meritorious appellants have had to wait while her unmeritorious application has had to be considered and dealt with by two judges of the Court of Appeal.

40.  In HKSAR v Wong Lin Hung[8], the Court of Final Appeal determined that an unsuccessful applicant who applies for leave to appeal out of time, is still an “appellant” for the purposes of section 83W of the Criminal Procedure Ordinance, Cap 221.  By the same process of reasoning adopted by the Court, we consider that an unsuccessful applicant who abandons her original application for leave to appeal but subsequently applies to treat that abandonment as a nullity and to resuscitate her appeal, is also an “appellant” within the meaning of the section.

41.  We have given long and hard thought as to whether we should order “loss of time” in the applicant’s case.  She should realise that we have come very close to ordering that part of the time she has spent in custody pending determination of her appeal should not be reckoned as part of her sentence, under the provisions of section 83W of the Criminal Procedure Ordinance.  However, we are prepared to accept that concern over the predicament of her young son, who is currently in foster care and evidently having problems, might have clouded the applicant’s judgment in setting in motion the chronology of events to which we have earlier referred.  Accordingly, we shall not make a “loss of time” order.  However, other applicants who are minded to pursue the same course and, by so doing, effectively obviate a determination by the Single Judge procedure, as well as waste the time of this Court, may not be so fortunate.

42.  Accordingly, the application to treat the applicant’s sentence as a nullity is dismissed, which means that the original sentence of 4 years and 10 months’ imprisonment will stand.

[1] [2010] 4 HKC 443.

[2] About 27% of the total quantity of the seized dangerous drugs.

[3] At the sentencing hearing, the judge said that the total quantity of the seized ketamine and nimetazepam was 6.86 grammes (AB, p 82I).  The prosecution having pointed out that the correct total quantity of both nimetazepam and ketamine was 6.92 grammes, the judge confirmed that 6.92 grammes was the correct figure but that it would not have affected the sentence she imposed.

[4] 1 gramme + 5 grammes + 12.73 grammes = 18.73 grammes.

[5] [2014] 3 HKLRD 691.

[6] [2014] 4 HKC 75.

[7] AB, p 89A-C.

[8] (2016) 19 HKCFAR 578.