HKSAR v. CHEUNG HOI PUN

CACC 8/2022

[2024] HKCA 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 8 OF 2022

(ON APPEAL FROM HCCC NO 264 OF 2020)

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REASONS FOR JUDGMENT

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1.  The applicant faced an indictment containing three counts: two joint counts, together with Chan Ying Hong (“Chan”) of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Counts 1 and 3), to which the applicant pleaded not guilty; and one individual count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance (Count 2), to which he pleaded guilty. His co-accused Chan pleaded guilty to Counts 1 and 3[1] and gave evidence as a prosecution witness at the applicant’s trial in the High Court before Campbell-Moffat J (“the judge”) and a jury. The applicant was convicted after trial of Counts 1 and 3. On 31 December 2021, he was sentenced by the judge to a total of 17 years and 9 months’ imprisonment.

2.  The applicant initially applied by way of a Form XI Notice, signed on 12 January 2022, for leave to appeal against conviction only. It is worth noting that the option of an appeal against sentence was specifically crossed through on the Notice by the applicant. Subsequently, his appeal against conviction proceeded on the basis of a question of law, for which leave was not required. On 21 August 2023, the Court of Appeal dismissed his appeal, with full reasons for its decision given at the time[2].

3.  On 28 May 2024, the applicant signed a further Form XI Notice, by which he sought leave to appeal against sentence out of time. In his affirmation, the applicant explained that he was out of time by 2 years and 4 months in launching his application in relation to sentence because he wished to “seek more legal advice to consider” applying for leave. At the hearing of his application for leave before me, he explained that he thought his application for leave to appeal against sentence might be viewed as inconsistent with his intention to appeal against his conviction; accordingly, he had only decided to appeal against conviction. He claimed that it had always been his intention to appeal against sentence but, at the hearing of his appeal against conviction when he brought the subject up with his lawyers, his counsel said he was only concerned with the appeal against conviction and had not be instructed to appeal sentence. The applicant has since been refused legal aid for his appeal against sentence.

4.  Having heard from the applicant and the respondent on 13 November 2024, I refused leave to appeal against sentence out of time and said I would hand down my reasons for so doing in due course.

The facts

5.  By the unanimous verdict of the jury, it must have been accepted that Chan had dealt with the dangerous drugs in question on the instructions of the applicant: that was essentially the prosecution case. In the morning of 2 October 2019, Chan was instructed by the applicant to collect a carton box containing some 3 kilogrammes of ketamine (which was further concealed in milk powder boxes) from a GoGoVan, check into a room at Winland 800 Hotel (“Winland Hotel”) on Tsing Yi at noon, and then go to the applicant’s residence in Tin Shui Wai, where he subsequently spent the night. The applicant gave Chan HK$1,000 in order to settle the charges for the delivery and the hotel room. On 3 October 2019, Chan and the applicant each took some equipment from the applicant’s home to Winland Hotel, which equipment included electronic scales, a sealing machine, plastic bags, empty pet food foil bags and a rice cooker, all for the purpose of dealing with the dangerous drugs.

6.  When they were unable to extend their stay at Winland Hotel, they moved to the nearby Rambler Garden Hotel (“Rambler Hotel”) where the applicant booked a room (“Room 2355”) for three days using his own credit card but under Chan’s name. Having done so, they left Room 2355 several times in order to buy food and other equipment, such as Ziploc bags, paper plates and gloves. They then took the drugs out of three of the six milk powder boxes, divided them into smaller quantities, weighed them and placed them in Ziploc bags, marking their respective weights on the bags. The applicant took photographs of the Ziploc bags and sent them to another person to check if the packaging had been done correctly. The Ziploc bags were further concealed within pet food foil bags and sealed.

7.  At 8:23 pm, Chan and the applicant were arrested in the vicinity of the Rambler Hotel. At the time, Chan was carrying a bag which contained 499 grammes of a solid containing 381 grammes of ketamine, concealed inside a packet of cat food. The retail value of the ketamine was about $246,007. These facts formed the basis of Count 1.

8.  The applicant was then taken to Room 2355, where he was further searched and 0.26 grammes of a solid containing 0.23 grammes of ketamine was found in his wallet. These drugs formed the subject matter of Count 2.

9.  Inside Room 2355, there was also found a total of 1,179 grammes of a solid containing 1,493 grammes of ketamine, the retail value of which was some $847,467. These drugs formed the subject matter of Count 3.

Mitigation

10.  The applicant had three previous criminal convictions, the last of which was trafficking in dangerous drugs in 2014, for which he had been sentenced on his plea of guilty in the High Court to 4 years and 8 months’ imprisonment. His counsel submitted that the applicant should be given some discount for having agreed much of the prosecution case, thus saving much of the Court’s time[3]. Counsel confirmed that the applicant had pleaded guilty to Count 2 at a case management hearing following committal.

11.  While counsel was addressing the guidelines for simple possession of dangerous drug, contending that there was no need to consider latent risk, the judge indicated that she was “thinking (of) no separate penalty” in respect of Count 2; and that “a little bit of common sense goes a long way”[4].

Reasons for sentence

12.  The judge considered that all three offences arose out of the same course of conduct. She also observed that the trafficking in Counts 1 and 3 was a commercial operation involved dangerous drugs worth more than HK$1 million, while the amount found in his possession was of “negligible” value[5].

13.  Having regard to the sentencing guidelines in HKSAR v Hii Siew Cheng[6], HKSAR v Sin Chun Kin[7] and HKSAR v Chan Ka Yiu[8], the judge determined that the appropriate starting point for trafficking in a total of 1,874 grammes of ketamine was 17 years and 9 months’ imprisonment. She went on to state[9]:

“As it is, I must sentence you for each offence. The starting point I adopt for Count 1, which concerns 381 grammes of ketamine, is that of 9 years and 9 months’ imprisonment. On Count 2, for possession, there will be no separate penalty. And under Count 3, for 1,493 grammes of ketamine, a starting point of 16 years’ imprisonment is appropriate. That would make a total sentence of imprisonment of 25 years and 9 months which does not reflect your culpability when compared to the starting point of 17 years 9 months’ sentence if these drugs were just part of one count.”

14.  The judge found there were no mitigating factors and accordingly gave no discount for what she considered to be the appropriate sentence after trial. It appears that the judge must have rejected the mitigation that the applicant had saved the court’s time, given her view that “the extent to which [the applicant] lied about the events was marked”[10].

15.  Finally, taking totality into account, the judge said[11],

“On Count 1, you will go to prison for 9 years and 9 months. On Count 2, there will be no separate penalty. On Count 3, you will go to prison for 16 years; 21 months of the sentence under Count 1 to run consecutively to your sentence on Count 3.

You will go to prison for a total of 17 years and 9 months.”

16.  The judge also sentenced Chan at the same hearing. He had pleaded guilty to Counts 1 and 3. Accordingly, the judge imposed the same starting points as she did on the applicant, namely, 9 years and 9 months’ imprisonment on Count 1, and 16 years’ imprisonment on Count 3. The judge also imposed “no separate penalty” on a separate count of possession of a dangerous drug (also in a “negligible” amount of ketamine in terms of value[12]). Taking into account Chan’s plea of guilty at committal and his giving evidence against the applicant, whilst expressing certain reservations about Chan’s evidence, the judge accorded Chan an overall discount of about 47%[13]:

“On Count 1, you will go to prison for 5 years and 2 months. On Count 2, there will be no separate penalty. On Count 3, you will go to prison for 8 years and 6 months; 11 months of the sentence under Count 1 to run consecutively to your sentence on Count 3.

You will go to prison for a total of 9 years and 5 months.”

Grounds of appeal

17.  By his Form XI Notice, the applicant complained about the disparity between his sentence and Chan’s sentence:

“… That defendant was sentenced to 5 years (of imprisonment) on count one (while) I was (sentenced to) 9 years (and) 9 months (of imprisonment). The sentence imposed on that defendant on count two was 16 years (of imprisonment) which was the same as (the sentence imposed on) me. However, the sentences (imposed on) on that defendant for the two offences were ordered to run concurrently while two years of the sentences (imposed on) me were ordered to run consecutively (one wrong character). In short, I have to serve two more years in (my) sentence because of (the order). I think there was unfairness in the sentences themselves …”

The respondent’s submissions

18.  Mr Ira Lui and Mr Ivan Tan, for the respondent, opposed the granting of leave to appeal out of time. Mr Lui submitted that the applicant had failed to provide any proper justification for the substantial and inordinate delay in applying for leave to appeal against sentence, particularly when he had timeously applied for leave to appeal against conviction.

19.  Of the sentences imposed on Counts 1 and 3, Mr Lui submitted that, on a purely arithmetical approach, the individual starting points of 9 years and 9 months’ imprisonment for trafficking in 381 grammes of ketamine, and 16 years’ imprisonment for trafficking in 1,493 grammes of ketamine, were entirely proper. As to trafficking in the total amount of 1,874 grammes of ketamine, pure arithmetic would result in a sentence of 17 years and 6 months’ imprisonment; a mere 3 months less than the starting point identified by the judge. This difference, Mr Lui said, could hardly be said to warrant an argument that the overall sentence was manifestly excessive.

20.  Furthermore, in accordance with the guidance given in HKSAR v Herry Jane Yusuph[14], the judge would have been fully entitled to enhance the starting point for two reasons. Firstly, the applicant’s role and culpability was more significant than that of Chan since it was Chan’s evidence that the applicant had given him instructions to carry out various trafficking activities. Mr Lui nevertheless acknowledged that the judge had surprisingly found the roles of the applicant and Chan to be “on a par”[15]. Secondly, the applicant had been sentenced in the High Court for trafficking in a dangerous drug in 2014. The judge could have properly enhanced the sentence for this aggravating factor, yet she did not.

21.  Mr Lui reminded the Court that it had been established that if the Court of Appeal is asked effectively to tinker with a sentence, it will be much less disposed to consider granting leave out of time in the absence of cogent and compelling reasons for the delay in filing a Notice of appeal: see HKSAR v Nkwo Nnaemeka Darlington[16]; HKSAR v Fundi Furaha Giles[17].

22.  As to the applicant’s complaint of disparity, Mr Lui suggested that it was likely based on a misunderstanding of the judge’s Reasons for Sentence. He pointed out that but for Chan’s timely pleas and assistance to the authorities, the starting point in his case would have been the same as that of the applicant.

23.  Regarding the judge’s order of “no separate penalty” on Count 2, Mr Lui submitted that it was highly unusual. There were only five other cases in which judges had imposed such an order. Mr Lui identified HKSAR v Chan Kim Chung Nelson[18] (a money laundering case where the defendant was also charged with the predicate offence) as the possible genesis of that approach, although Stock VP did not say in that case on what basis the Court might make such an order.

24.  Mr Lui suggested that the order imposed on Count 2 by the judge was in effect an unconditional discharge of the applicant. However, the judge did not have the power to make such an order under section 107(1) of Criminal Procedure Ordinance, Cap 221[19], or under section 36 of Magistrates Ordinance, Cap 227. It has been confirmed with the judge’s clerk that the applicant was not required by the court to enter into any form of recognizance.

25.  Accordingly, Mr Lui argued that should the Court ultimately be minded to grant leave, the Court should impose an appropriate sentence on Count 2.

Consideration

26.  The applicant has given no credible or satisfactory reason for the delay in pursuing his appeal against sentence. He was represented by experienced counsel at his appeal against conviction, yet there was no mention of any challenge to the sentence until some 9 months after the judgment on conviction was handed down. It seems clear that this application is a late after-thought, his appeal against conviction having failed. By reason of the inordinate delay alone, I would refuse leave to appeal against sentence out of time.

27.  I have nevertheless gone on to consider if there are any merits in his application for leave to appeal sentence. However, I find no reasonably arguable grounds of appeal against sentence. Even if the starting point was 3 months longer than it might have been, when viewed strictly arithmetically, this could be justified by the applicant’s more significant role and by his previous similar conviction for trafficking in dangerous drugs in the High Court.

28.  Moreover, if this matter were to come before the Court of Appeal, the Court may well feel, subject to receiving full argument on the point, that a specific sentence should have been passed on Count 2. If so, the Court would then have to consider passing an appropriate sentence for the offence.

29.  Accordingly, I refused leave to appeal against sentence out of time. However, I should warn the applicant of the power of the Court of Appeal, in appropriate circumstances, to order the loss of any time which an applicant has spent in custody pending his/her appeal, if it were to come to the conclusion that the application for leave to appeal should not have been renewed, and there was no merit in the appeal. That may be particularly so where the lower court has failed to pass a sentence (on Count 2) it should otherwise have passed in accordance with law, and when the application for leave to appeal is so far out of time.