HKSAR v. LAM MEI CHING, BET

CACC 24/2015

[2018] HKCA 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 24 OF 2015

(ON APPEAL FROM HCCC NO 264 OF 2014)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant was convicted on 19 January 2015 before Bokhary J and a jury of one count of trafficking in 95.19 grammes of a crystalline solid containing 94.54 gammes of methamphetamine hydrochloride (commonly known as “Ice”). She was sentenced on the same day to 11 years’ imprisonment. She now applies for leave to appeal against both conviction and sentence. On 24 May 2018, we reserved our decision on both matters. This is our decision.

The prosecution case

2.  The prosecution case was a straightforward allegation involving a “stop and search” of the applicant in the street, during which dangerous drugs were found.  The applicant had been seen to be acting suspiciously by walking up and down in the same place at about 00:30 hours on 24 January 2014 by two police officers, PW1 and PW2, who were patrolling in the area of Kwai Fong Estate.  Having revealed their identities, they took the applicant to a nearby park, which was a short distance away, where they searched her handbag.  The dangerous drugs, the subject‑matter of the charge, were found in seven transparent re‑sealable plastic bags inside her handbag.

3.  The applicant was arrested and cautioned. Shortly afterwards, two other police officers, PW3 and PW5 (a woman police constable), who were patrolling nearby, were summoned by their colleagues and arrived at the scene.  The applicant was subsequently conveyed to Kwai Chung Police Station.

The defence case

4.  The applicant did not give evidence.  Nevertheless, her case was put to the prosecution witnesses in cross-examination.  It was said on her behalf that she had never been in possession of drugs and that she had been “framed” by the police.  It was suggested that she had been intercepted at a different location by PW3 and PW5 and taken to the park, where they were later joined by PW1 and PW2.  In particular, it was put to the officers that when the officers searched the applicant and found nothing, PW1 and PW2 left the scene and returned shortly thereafter with PW2 holding a black plastic bag, which he claimed the applicant had earlier thrown away.

5.  At trial, the parties agreed by way of a formal set of Admitted Facts, the following matters, inter alia:

“1. That at 01:30 hours on 24^th January 2014 a black plastic bag containing seven re‑sealable plastic packets of suspected Dangerous Drugs were brought to Kwai Chung police station and placed before the Duty Officer. The suspected drugs were weighed in the presence of the Defendant and found to be 100.19 gms. The black plastic bag is produced as Exhibit P2.

2. That from that time onwards the said seven packets of suspected Dangerous Drugs were kept in secure conditions.  This included transportation to and from the Forensic Science Laboratory.  They are brought to court in similarly secure conditions and produced as Exhibit P1.”

6.  It will be seen that no issue as to the chain of evidence was taken by defence counsel (not Mr Cheung or Ms Leung, who appear for the applicant at this appeal) at the trial.  We have further examined the endorsement of the Clerk to the judge in the lower court file and note that the above Admitted Facts were read into the record, as is the invariable practice in trial courts, in order that all parties, but especially the jury and the defendant, are clear as to what is being admitted on his/her behalf, at 15:09 hours on 15 January 2015.

Appeal against conviction

7.  It is now averred by Mr Cheung, on behalf of the applicant, that counsel at trial was flagrantly incompetent in (i) failing to follow the applicant’s instructions as to the time of her interception, which could have been supported by her telephone records, which were never produced; and (ii) failing to act on the applicant’s instructions that she had never seen the dangerous drugs or been present when they were weighed and sealed, by negligently admitting the chain of evidence.  Accordingly, it is said that the applicant did not receive a fair trial.

Discussion

8.  The applicant was represented at trial by an experienced criminal advocate.  That is not to say that experienced criminal advocates do not make mistakes.  However, whether counsel makes a mistake or commits an error of judgment, or whether arguably something should have been done differently at trial, is not the test for flagrant incompetence.  In Chong Ching Yuen v HKSAR[1], the Court of Final Appeal endorsed[2] the judgment of Gleeson CJ (now NPJ) in the Court of Appeal of New South Wales in R v Birks[3], where he held:

“…counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case”.

9.  The Court of Final Appeal concluded, at para 48:

“It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment”.

10.  However, the Court went on to recognise, at para 49, that “in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice” (emphasis added).  The critical question is whether an applicant can show that, as a result of that error, he or she received less than a fair trial.

11.  In respect of the first complaint, we do not accept that the mere fact that two incoming calls, at 00:02 and 00:18 hours on 24 January 2014, were automatically forwarded from one of the applicant’s telephones must have meant that she had already been arrested and was no longer able to access her telephone; thereby indicating that the police witnesses must have been lying when they put the time of interception almost half an hour later.  Without the applicant’s evidence, it is unknown, and would be entirely speculative to suggest, why such calls should have been forwarded: it may simply have been that the applicant was unable, or did not wish, for whatever reason, to answer the call.  Mr Sean, with him Mr Daryanani, for the respondent, has pointed out that a significant number of calls on this particular telephone were similarly forwarded during the course of the previous 12 hours, suggesting that forwarding her calls, for whatever reason, was not unusual for the applicant.

12.  Furthermore, we have only been shown the call records for one of the four mobile telephones found in the applicant’s possession.  We have no idea what the records of the other three telephones might have shown were they available, which it appears they are not.

13.  In any event, the applicant’s counsel at trial did make use of the absence of the call records, but in a different way.  He made the point, in his closing address to the jury, that one of the indicia of drug trafficking is the frequency of telephone calls between the trafficker and his/her customers[4].  Yet here, the prosecution had adduced no such evidence. Counsel said[5]:

“We’ve heard of four telephones. We’ve heard from the officer that he agreed with me that two of them he had discovered belonged to her daughter. What about the other two? The police have at their disposal telephone records, they can requisition it from the telephone companies, all the calls, SMS messages, calls over that period, the relevant period.

If you were to see that, at a certain hour of the night, there was a cluster of regular calls and those connecting calls could be traced to, for example, people who are known addicts, you would be more persuaded that, in fact, this lady had these mobile phones for that purpose. But you’ve received no SMS messages, no telephone call records have been put in front of you to give you any form of idea as to how these records could have helped you determine whether she was in fact a drug trafficker or not.”

14.  In other words, defence counsel chose to make use of the fact that the prosecution had failed to produce the telephone records in order to suggest that his client could not be a drug trafficker.  Whether that was a better or worse point than the one now suggested by Mr Cheung on appeal is neither here nor there.  That was the line of argument trial counsel in his discretion chose to pursue.

15.  An incidental point made by Mr Cheung on this ground is that trial counsel mistakenly put to PW3 that he had first come across the applicant “at about 10 minutes past midnight”[6]; and to PW5 that he had stopped the applicant at “about quarter‑past – 10‑past midnight, quarter‑past midnight”[7]. It is said that the applicant’s written instructions were that she was stopped at about 23:50 hours, or 10 minutes to midnight.  In fact, the applicant’s written instructions were not so precise but we accept that, at least, in those instructions, she claimed she had arrived at the scene by taxi at about 23:45 hours and then made a telephone call to a friend of hers of an unspecified length.  Following that telephone conversation, the friend called her back about two minutes later.  Again, we are not told how long that call lasted.

16.  However, whatever the precise time of interception alleged by the applicant, defence counsel did put to the officers concerned that they had intercepted the applicant well before 00:30 hours.  They both disagreed with this suggestion[8]. Therefore, whether it was put to the witnesses that the interception was at “ten to midnight” or “ten past midnight”, assuming that these descriptions can even be relied on as precise and accurate, is inconsequential.  The telephone call records might, had the applicant decided to give evidence and explain why two calls from one of her telephones were forwarded, possibly have supported some earlier time.  But she did not give evidence.  Nevertheless, the essence of the instruction that she was intercepted much earlier than the police officers claimed was put to the relevant witnesses and refuted.

17.  Moreover, it must be remembered that, in an unfolding trial, written instructions can develop, adapt and change with the evidence.  Here, it was put to PW3 that the interception had been at “10 minutes past midnight”.  The applicant would have heard that question and its answer.  There is no suggestion from Mr Cheung that the applicant ever queried this particular assertion with her solicitors, or with counsel, either before or after more or less the same thing was later put to PW5.  Had it been as serious an error as it is now portrayed, we would have expected her to say something to someone.  She did not.

18.  In our judgment, this complaint is without any substance.  We turn to the other aspect of the complaint of flagrant incompetence, by which it is suggested that trial counsel was negligent in failing to take a point on the chain of evidence, thereby losing the applicant a chance of acquittal.

19.  We have already seen that a formal admission was made at trial that the dangerous drugs in question were weighed “in the presence of the [applicant]” and then kept in secure conditions thereafter.  And, as we have pointed out, those admissions would have been read out in open court in the hearing of the applicant.  Yet again, as Mr Cheung has conceded, no query was raised by the applicant with either her solicitor or her counsel on hearing this particular admission.

20.  In putting forward his complaint on this ground, Mr Cheung has painstakingly referred to various witness statements, notebook entries and pieces of evidence (including evidence in the voir dire), to make the point that, having taken possession of the dangerous drugs at about 00:40 hours, and arrived back at Kwai Chung Police Station at 01:30 hours on 24 January 2014, PW2 did not actually seal the drugs in a tamper-proof envelope until 05:33 hours that day.  Not only was this said to be in breach of the Police General Orders for the handling and custody of dangerous drugs[9], but it left some four hours unaccounted for in respect of the safe‑keeping of the dangerous drugs. Since PW2 has never anywhere explained what he did with the drugs during that four-hour period in his statements or in his evidence, it is submitted that there was a gaping hole in the chain of evidence, which defence counsel at trial should have challenged.

21.  It is submitted that no competent counsel, who had properly studied the depositions and unused material prior to trial, could have made an admission in the Admitted Facts to the effect that from 01:30 hours on 24 January 2014 onwards, the dangerous drugs exhibits were kept in secure conditions.  Nor could he have admitted that the dangerous drugs were weighed in the presence of the applicant; when her clear instructions were that she had never seen the dangerous drugs.

22.  One of the problems with different counsel on appeal looking at statements, notebooks and evidence, following a trial in which he did not participate, is that the exercise of criticising what should or should not have been done at trial can become rather academic, theoretical and divorced from the reality of the forensic and tactical decisions being made as the trial progresses.  When we examined this matter, it became apparent that during the course of the four‑hour period about which complaint is now made, a number of police officers, including PW2, had been on a search of the applicant’s home address and, following a briefing at Kwai Chung Police Station, had staked out an anticipated dangerous drugs transaction in Mongkok area, following some very specific information supplied by the applicant herself.  We cannot conceive that any defence counsel would have wanted to risk one of the officers he was cross‑examining blurting out that the reason he was not at the police station attending to the dangerous drugs was that he was following up on information about an imminent dangerous drugs transaction given by the defendant who had just been arrested.

23.  There can be no doubt that defence counsel at trial knew perfectly well about this operation in Mongkok as a result of the applicant’s information, because it had emerged, much it would seem to the surprise of prosecuting counsel, in examination-in‑chief from Sergeant 53816 during the voir dire[10]. This witness was not called again at the trial before the jury.  In reality, any defence counsel would have wished to keep this damaging piece of evidence from the jury.  The safest way to do so was not to mount an attack on police officers for not appearing to act expeditiously in respect of the packaging of the dangerous drugs seized, but to agree to the chain of evidence.

24.  Moreover, we do not accept that agreeing to the chain of evidence was inconsistent with the defence case that the applicant had been “framed” for the offence.  After all, even assuming the dangerous drugs had been planted on the applicant by police officers in a park in Kwai Fong Estate, they were still going to bring her and the drugs before the Duty Officer at Kwai Chung Police Station, and weigh and place the drugs in a tamper-proof envelope.  Had the prosecution been able to provide positive proof, by reference to other witnesses or detailed documents or police logs, that the dangerous drugs were placed before the Duty Officer, and were weighed in the applicant’s presence, the general defence that the applicant had been “framed” might have been seriously undermined.  As it was, counsel’s admissions by way of Admitted Facts as to what, in any event, would be the normal formalities of police investigation and procedure did not undermine the case he was putting, namely that the applicant was being falsely accused of having dangerous drugs in her handbag for the purposes of trafficking.  Again, such a tactic would have been within defence counsel’s discretion in defending his client.

25.  Mr Cheung has now sought to show, by a microscopic examination of police witness statements and other material, that there was a breach in the chain of evidence in relation to the storage of the dangerous drugs.  We do not agree that that is the inevitable interpretation of this material.  Nor are we prepared to accept that this is an exercise this Court should entertain, in the light of the clear admissions of the parties in the Admitted Facts.  The fact is that PW2 did not say in evidence what he did to secure the dangerous drugs when he left for a search of the applicant’s home address and for the operation in Mongkok, because he was not asked.  And he was not asked, because defence counsel at trial decided that the chain of evidence was not in issue.  It was for defence counsel to decide whether to embark on a detailed analysis of this aspect of the prosecution witnesses’ statements and other documents, with the attendant risks we have described, or simply to agree that the formalities had been followed, in circumstances which did not undermine the defence.  Given the reading into the record of the Admitted Facts, he appears to have adopted the latter course, with the knowledge and consent of his lay client.

26.  It was indeed the applicant’s written instructions (assuming they remained intact and unchanged) that the dangerous drugs were not weighed in her presence at Kwai Chung Police Station.  But it was also put on her behalf to PW1 that, when the applicant arrived at the Police Station, she was “very emotional … crying, shouting and she had to be given water”[11]; while, to PW2, it was put that she was “in a hysterical condition, yelling and emotional, crying”[12].  Assuming the applicant was aware of what was happening around her at that time, it could still be argued that the admission that the drugs were weighed in her presence was contrary to her written instructions.

27.  However, as Mr Cheung accepts, the rest of the Admitted Facts were not incompatible with the applicant’s written instructions: the only part that could be said to be inconsistent was the qualification “in the presence of the [applicant]”.  Nevertheless, even if we were to assume that defence counsel at trial made a mistake in agreeing to the inclusion of those words in the Admitted Facts in light of her written instructions, it was simply a mistake.  We cannot see how this translates into flagrant incompetence such that the applicant was deprived of a fair trial.  Her essential case that she was “framed” by the police with possession of dangerous drugs that were never found in her handbag was fully and competently put by her counsel at trial.  Whether or not she saw the drugs, whether or not they were weighed in her presence and whether or not she was taken before the Duty Officer, did not ultimately impact on her essential defence that she had been “framed” by the police.  As we have said, the applicant was still going to be taken to Kwai Chung Police Station, her arrest was still going to be brought to the attention of the Duty Officer and the drugs were still going to be weighed, whether she was “framed” for the offence of trafficking or not.

28.  The judge properly summarised the applicant’s case, as it was put to the prosecution witnesses, and instructed the jury in stark terms that[13]:

“If you do not feel sure that the accused had these dangerous drugs in her possession, you will acquit her, and that will be the end of the case”.

In the result, the jury convicted the applicant.

29.  In HKSAR v Tsang Man Kit[14], this Court observed, at para 33:

“In Hong Kong, unlike perhaps other jurisdictions, counsel on appeal is very often not the same as counsel at trial. It is therefore rather easier for appellate counsel to look at the evidence and trial process on paper and argue that something should or should not have been done or said by trial counsel, without a full appreciation of the tactical and forensic decisions which are being made by trial counsel (in some cases experienced criminal practitioners) as the evidence is unfolding. Looked at another way, the fact that counsel did or did not do or say something at trial for tactical or forensic reasons should not readily assist an appellant, simply because his new counsel on appeal thinks that things should have been done differently.”

The italicised part of the above passage was recently cited with approval by the Appeal Committee of the Court of Final Appeal in HKSAR v Fok Lap Yin, Ian Lee Christoffer[15].

30.  What appears to have happened in this case, with respect, is that Mr Cheung has indulged in a minute dissection of the witness statements, notebooks and evidence of the prosecution witnesses and formed the view that the chain of evidence should have been attacked, and not agreed.  In effect, he is saying that, as a result of perceived discrepancies in the material, he would have done things differently from trial counsel.  However, Mr Cheung was not trial counsel and the conduct of the defence was not his discretion to exercise.  In order to try and satisfy the very rigorous criteria which must be satisfied before this Court will entertain such arguments, he has sought to suggest that trial counsel was flagrantly incompetent.  With respect, we see no justification whatsoever for him to have done so.

31.  The Appeal Committee of the Court of Final Appeal have on three separate occasions within the space of barely 6 months, criticised the practice of making wholly unwarranted allegations of flagrant incompetence against trial counsel on appeal: see HKSAR v Chow Wing Wai[16]; HKSAR v Cheng Yim Fung, Flora[17]; and HKSAR v Li Xiaoxiang[18]. We cannot help but observe that, in all three cases, Mr Cheung was appellate counsel, albeit that he was led by Senior Counsel in the most recent case, acting on the instructions of the same set of solicitors.  This repeated and undiscerning practice of impugning the conduct of trial counsel as flagrantly incompetent is evidently of as much concern to the Court of Final Appeal as it is to this Court.

32.  We thoroughly endorse the emphatic remarks of the Appeal Committee in its most recent determination in HKSAR v Li Xiaoxiang, at para’s 27‑32, which we respectfully set out in full:

“27. This Court has on a number of occasions, most recently in HKSAR v Cheng Yim Fung, Flora[19], deprecated the fact and trend of misconceived and inappropriate charges of flagrant incompetence levelled at counsel appearing at trial. It seems that the message has not been understood and that some elaboration is warranted.

28. What appears not to be understood is the number and difficulty of decisions which trial counsel have to make and the wide discretion which must be accorded them in the conduct of criminal (and civil) litigation but for which the machinery of timely advice and efficient but fair litigation would be undermined. Without understanding this, the legal adviser who is engaged to advise upon possible grounds of appeal will inevitably fail to appreciate the limits of counsel error as a ground of appeal. It is precisely to illustrate the limits of that concept that in Chong Ching Yuen v HKSAR, Sir Thomas Eichelbaum NPJ took pains to explain the authority of counsel in regard to the conduct of a trial[20]. By reference to R v Birks[21], he itemised many of the decisions which counsel in the conduct of proceedings is called upon to make: for example, “what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon … all matters within the discretion of counsel and frequently [involving] difficult problems of judgment, including judgment as to tactics”[22] and that “[u]nless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”[23]

29. The point then made by Sir Thomas Eichelbaum was that:

‘48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.

49. Nevertheless, the courts have recognised that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. To describe this ground, the expression “flagrant incompetence” has generally been used … .’ (emphasis added).

30. If these principles and this reality were sufficiently understood, this Court and others in this jurisdiction would be troubled less frequently by unmeritorious assertions of flagrant incompetence by counsel. This is not to derogate from the duty of legal advisers to advance such a ground where there is a sound basis for doing so. But what is happening too frequently is of an altogether different order, namely, an exercise in dissecting the minutiae of first instance trials to uncover inconsistencies, to find questions asked which should not have been or questions not asked which should have been and to examine advice given as to the benefits or disadvantages of testifying, from which exercise is then constructed an alternative approach which might have been taken, and that alternative approach is then artificially elevated to the only acceptable approach with a blindness to the realities of trials and the latitude which must be accorded competent practitioners to exercise professional judgment.

31. Furthermore, if these principles and realities were sufficiently understood, the unnecessary exertions and anxieties imposed upon counsel against whom unwarranted allegations are made would be avoided. Any allegation of this kind inevitably requires trial counsel to forage for his or her contemporaneous notes and advice, to write letters and to swear affidavits or make affirmations and then, often, to subject himself or herself to cross-examination. Where there is substantial cause for asserting flagrant incompetence, this type of pressure and anxiety cannot be avoided for the assurance of a fair trial is paramount. But the Court of Appeal has had occasion to remark that a culture has developed in this jurisdiction “whereby allegations against other counsel are too easily made with insufficient regard, unless one has been at the receiving end, to the burden that is placed on counsel (or solicitor, as the case may be) against whom the attack is launched, and to the heavy anxiety suffered by a person whose competence and integrity is thereby placed under scrutiny.” We would endorse the advice of that Court that: “It is incumbent on appellate counsel never to advance such allegations unless there is a palpably sound basis to do so … .”[24].

32. This determination is substantially longer than usual because we have thought it desirable to dispel in detail the unwarranted allegation of flagrant incompetence persisted in against counsel and to emphasise the need for great care to be exercised before such an accusation can responsibly be levelled at the counsel or solicitors involved.”

33.  With respect to Mr Cheung, the complaints of flagrant incompetence he has levelled against trial counsel in this appeal betray a misunderstanding of the authorities and their application.  In our judgment, there was no basis at all for the making of such complaints in this case.

34.  We wish to add that this Court has the power to order loss of time in appropriate cases under section 83W of the Criminal Procedure Ordinance, Cap 221.  If such grounds are mounted in future and are found to be, as we have found them to be in this case, totally bereft of merit, we shall use that power; whether or not counsel have approved and argued such grounds.  We respectfully remind practitioners of the Practice Note (Crime: Sentence: Loss of Time) issued on 9 October 2013[25].  Having noted, at para 9, that the fact that an applicant is acting under legal advice is not of itself a bar to an order for loss of time, the Practice Note continues:

“10. The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.” (emphasis added)

35.  The application for leave to appeal against conviction is refused.  The applicant should consider herself very fortunate that we propose simply to refuse her leave to appeal against conviction and dismiss the appeal.

Appeal against sentence

36.  The applicant received a sentence of 11 years’ imprisonment.  Mr Cheung submits that an arithmetical application of the relevant guidelines in Attorney General v Ching Kwok Hung[26] to a quantity of 94.54 grammes of “Ice” narcotic would have merited a starting point of 10 years and 5 months’ imprisonment.  Since the judge said she found no aggravating features, the sentence is thus said to be 7 months too long.

37.  However, we note that following 13 previous convictions for possession of dangerous drugs, the applicant was convicted in the High Court in April 2009 of trafficking in dangerous drugs and sent to prison for 6 years.  Yet some 15 months after her release, she committed exactly the same, but a much more serious, offence.  Plainly, the applicant does not learn from experience.

38.  The applicant’s previous conviction for trafficking was, on clear authority, an aggravating factor, which should have caused the judge to enhance her sentence for this repeated offence: see HKSAR v Abdallah[27]; HKSAR v Chau Hon Kwong[28]. The fact that the judge did not apparently enhance the sentence for the applicant’s similar record of trafficking in dangerous drugs does not mean that this Court cannot have regard to it on an appeal against sentence, when deciding whether the sentence was manifestly excessive and/or wrong in principle.  If we did not, it would encourage complaints of inconsistency and unfairness from other appellants, whose sentences have been properly enhanced because of a similar offence (or offences) of trafficking in dangerous drugs.

39.  We wish to say that if a judge is minded for any particular reason not to enhance a sentence for trafficking in dangerous drugs, when there is a similar and significant previous conviction, he or she should say so and explain why.  This Court can then evaluate whether the reason given was a proper one within the judge’s discretion.

40.  In the present case, the judge simply said “there is no aggravation calling for an increase nor any mitigation calling for a decrease”[29]; which, in light of the applicant’s criminal record, was not, with respect, correct.  In our judgment, the sentence of 11 years’ imprisonment for trafficking in this quantity of “Ice”, where the applicant had a relevant and recent previous conviction for exactly the same offence was amply justified.

41.  The application for leave to appeal against sentence is likewise refused and the appeal dismissed.

[1] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126.

[2] Ibid., at para 47.

[3] R v Birks (1990) 48 A Crim R 385.

[4] AB, p 163G.

[5] AB, p 165F-L.

[6] AB, p 133I-J.

[7] AB, p 143S-T.

[8] AB, p 133I-K (PW3); p 143S-U (PW5).

[9] Police General Orders, Chapter 32-04.

[10] AB, p 172M-S.

[11] AB, p 96J-K.

[12] AB, p 127O-P.

[13] AB, p 10K-M.

[14] HKSAR v Tsang Man Kit [2015] 2 HKLRD 287.

[15] HKSAR v Fok Lap Yin, Ian Lee Christoffer (unrep., FAMC No 14 of 2017, 22 August 2017).

[16] HKSAR v Chow Wing Wai (unrep., FAMC 29 of 2017, 6 November 2017).

[17] HKSAR v Cheng Yim Fung, Flora (unrep., FAMC 35 of 2017, 9 February 2018).

[18] HKSAR v Li Xiaoxiang (unrep., FAMC 65 of 2017, 21 May 2018).

[19] HKSAR v Cheng Yim Fung, Flora (unrep., FAMC No 35 of 2017, 9 February 2018). See also Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126; Chan Fat Chu v HKSAR (2009) 12 HKCFAR 775; HKSAR v Leung Shing Chi (2014) 17 HKCFAR 889; and HKSAR v Chow Wing Wai (unrep., FAMC No 29 of 2017, 6 November 2017).

[20] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, at para’s 46-49.

[21] R v Birks (1990) 48 A Crim R 385.

[22] Ibid., at 390-391.

[23] Ibid., at 391, citing Halsbury’s Laws of England (4^th ed) Vol 3(1), para 518 at p 420.

[24] HKSAR v Ou Jiejing [2013] 2 HKLRD 258, at para 95.

[25] Practice Note (Crime: Sentence: Loss of Time) [2013] 6 HKC 300.

[26] Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

[27] HKSAR v Abdallah [2009] 2 HKLRD 437, at para 32.

[28] HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630, at para 33.

[29] AB, p 26P-Q.