HKSAR v. YEUNG KAM CHUN

CACC427/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.427 OF 2004

(ON APPEAL FROM HCCC 177 OF 2004)

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J U D G M E N T

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Tong J (giving the judgment of the Court) :

The background

1. The applicant was charged with a total of three counts.  The first two were offences of trafficking in dangerous drugs (ice) and the 3^rd count was possession of dangerous drugs (cannabis and resin).  The amount of drugs involved in the first two counts were 1.59 grammes and 21.39 grammes respectively.  The 3^rd count involved 1.67 grammes of cannabis resin and 0.07 grammes of cannabis.

2. The applicant pleaded guilty to the 3^rd count but denied trafficking in respect of the first two counts.  He did not dispute possession of the drugs but he said that they were for his own consumption.

3. At the end of the case, the jury found the applicant guilty of the 1^st count as charged and guilty of the lesser offence of possession for the 2^nd count.

4. Having heard the mitigation, Deputy Judge Fung imposed a total sentence of 46 months.  This was based on the following calculation : two years on the 1^st count, 20 months on the 2^nd count and four months on the 3^rd count.  It was further ordered that the first two terms were to run consecutively, and two months from the 3^rd count were to run consecutively with the other terms.

5. The applicant is now seeking leave to appeal against sentence.  Mr Wong, for the applicant, and Mr Tam, for the respondent, had both prepared comprehensive written submissions for and against the application. 

The applicant’s case

6. Mr Wong commented that in view of the fair direction by the Deputy Judge, the conviction of the 1^st count and acquittal of the 2^nd count was somewhat surprising.

7. We note that the applicant is not applying for leave to appeal against the conviction so the consistency of the verdicts is not really a relevant matter.  In any case, we do not think that there is anything surprising about the verdicts.  Apparently the jury did not believe the applicant that he had intended to consume the two packets of ice during his mahjong game but they gave him the benefit of the doubt regarding the drugs found at his home.    

8. In terms of the individual sentences, Mr Wong did not quarrel with the sentence of two years’ imprisonment for the 1^st count.  However, in relation to the 2^nd count, he submitted that although the starting point of 18 months was acceptable in view of the authority (see HKSAR v. Mok Cho Tik, CACC165/2000), the enhancement of the sentence by a further 12 months to reflect the factor of “latent risk” was too high.  Mr Wong stated that the proper period of enhancement should not be more than six months.  He further contended that part of the sentence for the 2^nd count should have been allowed to run concurrently with the term for the 1^st count.

9. As to the sentence in the 3^rd count, Mr Wong raised a similar point.  He submitted that the sentence should be allowed to run concurrently with the other terms.

10. In support of his argument regarding the issue of enhancement, Mr Wong referred us to the cases of HKSAR v. Lai Kam Sang CACC578/1998 and the above-mentioned Mok Cho Tik (supra).  Mr Wong did not dispute the principle as enunciated in Mok Cho Tik that the full circumstances of the risk must be assessed, such as whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course, the quantity of drugs.  Mr Wong argued that in our case there was no evidence to support any of these factors such as the sharing of drugs with friends.  He submitted that the 12 months enhancement for the 15.724 grammes of ice was justified in Mok Cho Tik because in that case the risk factors were self-evident.

11. As to the other case of Lai Kam Sang where the Court of Appeal also endorsed a 12 months enhancement, Mr Wong sought to distinguish it and pointed out that the Court of Appeal did not seem to have considered other relevant factors in that case except the amount, which was 26.61 grammes of ice.

12.  However, in the present case, it cannot be ignored that the two packets of ice in the 1^st count, which were found to be for trafficking purpose, had come from the drugs found at the applicant’s home.  It showed that the risk factor was not just latent but to some extent actual.  The applicant had indeed used part of it, and, apparently, given the chance, he might use more of it for the purpose of trafficking.  If the Court of Appeal in Lai Kam Sang had endorsed 12 months of enhancement on the amount alone, then the same period of enhancement in the present case where the amount of drugs was slightly less, but the degree of the risk was higher could not be said to be excessive or wrong in principle.

13. The issue of whether there should have been a partial concurrent order in the circumstances is more debatable.  On one hand, one may think that the principle of enhancement may be inconsistent with the idea of concurrent sentences.  If the applicant deserved an enhanced sentence because of the latent risk, then there was no point to dilute the effect of the enhancement by any concurrent order.  On the other hand, one may argue that if the defendant was convicted of both trafficking offences, he would most likely be given a partly concurrent sentence.  But if he would receive partly concurrent sentence when he was convicted of two trafficking offences, it might seem odd if he was denied a similar adjustment when one of the convictions was actually a lesser offence.  We agreed, in the final analysis, that the principle stated in HKSAR v. Chow Yu Chi, CACC359/2000[1] cited by Mr Wong should apply.

14. In the premises, we came to the conclusion that there should be a partial concurrent order of six months for the terms imposed on the 1^st and 2^nd counts.  Hence, the sentence for the first two counts would therefore be 38 months.

15. In relation to the 3^rd count, the amount of cannabis involved was relatively small.  And as Mr Wong pointed out, the drugs in the 2^nd and 3^rd counts were all found inside the flat at the same time.  As it was stated in the case of HKSAR v. Amnuaychoke Nopporn, CACC441/2001, if the additional amount of drugs in question did not materially alter the sentence imposed for the other drugs, then no further term of imprisonment should have been imposed.  Although the circumstances in that case was somewhat different, we respectively agreed with the principle stated therein and we believed the four months’ imprisonment for the 3^rd count should run concurrently with the other term of sentence.  In any event, Mr Tam appeared to share the view that the starting point for this offence might well be too high and a wholly concurrent order would not be inappropriate. 

The prosecution’s main objection

16. Mr Tam had sought to raise a particular point in respect of the 1^st count.  He said that the starting point of two years adopted by the Deputy Judge was too generous and it should have been three years instead.  He argued that even if there could be fine tuning for the other terms, this court should look at the overall sentence in deciding whether it was really manifestly excessive, and in the process, the court may wish to make an upward adjustment to bring the two years starting point to three years in line with the authority.

17. According to Attorney General v. Ching Kwok Hung [1991] 2 HKLR 124, the tariff for the trafficking of ice is, for the quantity of “up to 12 grammes”, three to seven years.  In this case, for the 1^st count, the amount was 1.59 grammes.

18. Mr Tam submitted that based on Ching Kwok Hung, three years should be taken as the minimum starting point for any particular amount of ice.  He pointed out that there should not be a further refinement of the tariff to cater for the smaller amounts.  We do not read Ching Kwok Hung in that way.  For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.

Conclusion

19.  For the reasons given, we would accordingly grant the applicant leave to appeal against sentence, and treating the hearing of this application as the appeal, we would allow the appeal and substitute a total sentence of 38 months to reflect our decision as set out in paragraphs 14 and 15 hereof.

[1]    "In circumstances such as these, when both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive a total weight."