HKSAR v. TAI CHEUK KIN

CACC 194 /2023, [2024] HKCA 674

On Appeal From [2023] HKCFI 2747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 194 OF 2023

(ON APPEAL FROM HCCC NO 169 OF 2023)

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J U D G M E N T

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1.  The applicant pleaded guilty before a magistrate to four charges and confirmed his pleas following his committal to the High Court. On 18 October 2023, he was sentenced by Deputy Judge Eric Kwok SC (“the judge”) to a term of imprisonment for 7 years and 2 months. The four charges were:

(a)  Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 (Charge 1);

(b)  Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374 (Charge 2);

(c)  Possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap 200 (Charge 3); and

(d)  Trafficking in dangerous drugs, namely 8.22 grammes of a solid containing 7.69 grammes of cocaine and 3.97 grammes of a crystalline solid containing 3.78 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 4).

2.  By a Form XI Notice filed on 2 November 2023, the applicant applies for leave to appeal against his sentence.

Facts accepted by the applicant

3.  At about 1:40 am on 20 June 2021, the applicant drove a private vehicle (“Vehicle A”) along Austin Avenue, Kowloon and was stopped by a police officer (“PW1”) because the headlights were not illuminated.  The applicant appeared at that stage to be cooperative and alighted from Vehicle A.  When asked to produce his identification document, the applicant gave PW1 an Acknowledgement of Application for a Hong Kong permanent identity card, which bore his photograph but the particulars of one Chan Yin Lam (“Chan”), as well as Chan’s driving licence.  The acknowledgment document was subsequently confirmed to be a false instrument, which constituted the subject matter of Charge 1.

4.  While checking his identity, the police officer instructed the applicant to park the vehicle on the pavement, so as not to obstruct the two-lane carriageway.  After returning to Vehicle A, the applicant suddenly drove it out into Austin Avenue in the opposite direction.  PW1 immediately boarded the police vehicle in pursuit.  The applicant drove Vehicle A in a dangerous manner; dashing out from the junction in the opposite direction and subsequently crashing into another vehicle (“Vehicle B”).  As a result of the collision, the front bumper of Vehicle A was completely destroyed, whilst the nearside bodywork of Vehicle B was deformed.  Fortuitously, the driver of Vehicle B did not suffer any injury.  The applicant exited Vehicle A and disappeared.  These facts constituted Charge 2.

5.  Upon police investigation, the identity of the applicant became known but he could not be located at his home address.  The police subsequently discovered that the applicant had been staying at the Cordis Hotel, Mongkok from 25 June 2021.  Accordingly, police officers placed the main lobby of the hotel under observation and in due course intercepted the applicant at 12:50 pm the same day.  At the time, he was carrying a handbag in which the following items were found:

(a)  Another Acknowledgement of Application for a Hong Kong permanent identity card, which bore his photograph and the particulars of Yeung Ka Chun (Charge 3).

(b)  A plastic bag containing two further bags of cocaine; and

(c)  Two plastic bags containing “Ice”.  (The cocaine and Ice formed the subject matter of Charge 4, and had a street value of $11,132.)

6.  The applicant was duly arrested and took part in two video-recorded interviews, in which he said, inter alia, that:

(a)  Chan was his friend, from whom he borrowed Vehicle A, in which he also found Chan’s driving licence;

(b)  He knew he was a wanted person and therefore carried with him the subject matter of Charge 1;

(c)  He fled upon returning to Vehicle A in case the police discovered that the subject matter of Charge 1 was a forged document; he also accidentally collided with another vehicle when he was parking Vehicle A on the pavement as instructed by the police;

(d)  He did not know the person named in the forged document of Charge 3.  He simply provided his own photograph to a friend in order to make that forged document; and

(e)  The dangerous drugs were for his own consumption (but when pleading guilty, he accepted that they were for trafficking).

Mitigation (and aggravating factors)

7.  The applicant was 34 years of age and single at the time of sentence.  He worked as a part-time lorry driver’s assistant with a daily salary of $500.  It was submitted on his behalf that he was merely a courier of the dangerous drugs. 

8.  Since two types of drugs were involved in Charge 4, the parties were invited by the court to submit their calculations in accordance with the three tests set out in HKSAR v Chan Yuk Leong^[1]. The judge said that the calculations tallied with his own^[2], which were as follows^[3]:

(a)  under the ‘absurdity test’: 5.1 years (if all drugs are converted into cocaine), or 7.1 years (if all drugs are converted into “Ice”);

(b)  under the ‘conversion test’: 5.8 years; and

(c)  under the ‘ratio test’: 5.76 years.

Mr Kong, on behalf of the respondent, has suggested today that the figures were not in fact accurate, but the inaccuracy was advantageous to the applicant; nevertheless, everyone including the court proceeded for sentencing purposes on the basis that they were correct.

9.  In relation to his criminal record^[4], the applicant had 10 previous court appearances in respect of 15 offences: four of trafficking in dangerous drugs and four of possession of dangerous drugs; one of possession of a forged document; and other offences contrary to the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272, and the Road Traffic Ordinance, Cap 374. 

10.  In addition, the present offences were committed whilst the applicant was on a 1-year suspension of a 4-month sentence of imprisonment, imposed upon him on 30 September 2020 in the case of FLCC 1423/2020^[5]. However, the suspended sentence had not been activated when the applicant was sentenced on two subsequent occasions on 13 July 2021 and 22 July 2021^[6].

11.  Furthermore, the present offences were committed when the applicant was disqualified from driving.  A disqualification order of 12 months was first made on 30 September 2020^[7] in the case of FLCC 1423/2020 (it was made again on 13 July 2021^[8] when the applicant was convicted of driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374 and using a motor vehicle on a road against third party risks, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272).

12.  Finally, the applicant was a wanted person at the time of these offences: he had jumped bail on 10 April 2021^[9] and was not arrested until his commission of Charges 3 and 4 on 25 June 2021.

Sentencing

13.  In respect of Charge 1, the judge noted that the applicant used a forged document to conceal his identity as a wanted person and drove whilst disqualified, passing a sentence of 15 months’ imprisonment after plea^[10].

14.  For Charge 2, the judge considered that the applicant drove dangerously in order to avoid being investigated by the police^[11]. The judge also said that although the applicant’s previous traffic record would not justify an increase of his sentence, it did mean that no mercy could be extended to him^[12]. The judge adopted a starting point of 2 years’ imprisonment and reduced it to 16 months’ after giving the applicant a one-third discount.  (The disqualification order for a period of 2 years, which the judge directed would not start to run until the applicant finished serving the present term of imprisonment, as well as the order that he should attend a driving improvement course, are not the subject of appeal.)

15.  In respect of Charge 3, the judge adopted 15 months’ imprisonment as the base sentence, which was the same sentence in respect of Charge 1, but enhanced it by 2 months since the applicant repeated the same offence five days later with a different identity^[13].  The resulting sentence was 17 months’ imprisonment.

16.  For Charge 4, the judge accepted that the applicant played the role of a courier.  He took an initial starting point of 6 years’ imprisonment and enhanced it by 6 months in light of the applicant’s previous convictions and his commission of the present offence whilst on bail^[14]. This made a sentence of 6 years and 6 months’ imprisonment, which the judge reduced by one third to 4 years and 4 months’ imprisonment.

17.  The judge also examined the question of totality and considered an overall sentence of 7 years’ imprisonment appropriate in respect of all four charges.  To achieve that result, the judge effectively ordered the sentences of imprisonment on Charge 1 (15 months), Charge 3 (17 months) and Charge 4 (4 years and 4 months) to run wholly consecutively to each other, but the sentence on Charge 2 to run concurrently with the total sentence^[15].

18.  The judge also activated 2 months of the suspended sentence in relation to FLCC 1423/2020, ordering it to run consecutively to the present 7-year sentence^[16].

Ground of appeal

19.  The applicant has advanced no specific argument to substantiate the present application.  In essence, his complaint is that the total sentence is manifestly excessive by virtue of the ordering of consecutive sentences. 

Respondent’s submission

20.  Mr Kong submits that the applicant has failed to make out any specific grounds of appeal against his sentence; the judge’s reasoning for sentence cannot be criticised; and the ultimate sentence is not manifestly excessive, bearing in mind the applicant’s appalling criminal record, his repetition of offences and his wanton disregard of various court orders.

Discussion

21.  It is obvious to me that the applicant is a persistent offender in respect of both dangerous drugs and traffic offences. Regarding the dangerous drugs offences, he has been sentenced to lengthy terms of imprisonment and it is now the fifth time he has been convicted of trafficking. It should be noted that he committed the first three trafficking offences on 30 May 2011, 11 July 2011 and 14 July 2011 respectively: on each occasion he had sold “Ice” to an undercover police officer and was thereafter arrested; on the second and third occasions, he also engaged the services of a second defendant, who was a minor, to be his courier^[17]. In the result, he received a total sentence of 28 months’ imprisonment upon his pleas.  On 24 March 2014, he trafficked, for a fourth time, in 128.35 grammes of ketamine and was sentenced to 52 months’ imprisonment, again upon his own plea^[18]. That said, he was evidently not deterred by those sentences and re-offended by committing the present Charge 4, which involved a combination of two types of dangerous drugs.  The Courts have held that dealing in more than one type of dangerous drug will justify an enhancement of the starting point for the offence^[19]. It was also pointed out in HKSAR v Lee Ming Ho^[20]that a previous similar record is a specific aggravating feature.  In my judgment, there can be no valid criticism of the enhanced starting point of 6½ years’ imprisonment and the resultant sentence of 4 years and 4 months’ imprisonment for that charge.  Indeed, I consider that the enhancement could have been greater, given the presence of more than one aggravating feature.

22.  For the sake of completeness, I should point out that, notwithstanding his previous admission to a Drug Addiction Treatment Centre and the claim in the video-recorded interview that the drugs in question were for his own consumption, the applicant never sought a Newton hearing in order to testify in support of such a claim.  There was accordingly nothing to show that “a significant proportion of the drugs”^[21] was for his own consumption, so as to justify a reduction in his sentence.

23.  Charge 2 is another significant offence committed by the applicant, although it may be regarded as comparatively less serious than Charge 4.  Its significance lay in the fact that the applicant fled after he was stopped for investigation by the police, and failed to control Vehicle A properly; thereby falling well below the standard expected of a competent and careful driver when he collided with Vehicle B causing substantial damage to both vehicles. In addition, he was driving at the time when he was subject to a disqualification order, which he accepted when agreeing the Summary of Facts^[22]. The applicant is perhaps fortunate that he was not further charged with driving whilst disqualified.  Had such an additional charge been laid against him in the Magistrate’s Court, it would inevitably have required the passing of another partly consecutive sentence, which in turn would have led to an increase in his overall sentence.

24.  Regarding the use and possession of a forged document (Charges 1 and 3), these could be regarded as similar to the offences in FLCC 1423/2020, namely forgery of documents, contrary to section 111(1) of the Road Traffic Ordinance, Cap 374, for which he was, on 30 September 2020, fined $10,000 and sentenced to 4 months’ imprisonment suspended for one year.  The fact that the applicant committed a similar offence on 20 June 2021, and repeated it on 25 June 2021, both dates falling within the period of suspension, is a relevant factor, which should not have been ignored in the sentencing process. 

25.  I should further point out that it is a very serious aggravating feature that the applicant committed each of the present offences whilst on court bail.  In fact, after jumping police bail on 10 April 2020 (in the case of FLCC 1423/2020), he has committed a further seven offences on no less than four different occasions^[23], until his arrest on 25 June 2021.  Since the present offences arose from two separate incidents, that would be a weighty factor in favour of making the individual sentences consecutive, subject to the application of the totality principle.

26.  Leaving aside the mechanics by which the judge came to the ultimate sentence of 7 years’ imprisonment, the real question falling to be considered, and what the Court of Appeal will always ask itself, is whether the overall sentence of 7 years’ imprisonment is manifestly excessive or wrong in principle in the above circumstances.  Given the applicant’s appalling record and his blatant disregard of the orders of the court, there can be no reasonably arguable complaint about his sentence. 

27.  There is no merit in this application for leave to appeal against sentence, which is accordingly refused.

28.  I advise the applicant that he has the right to renew his application to the Court of Appeal but he should be warned that if that Court were to come to the conclusion that there was no justification for the renewal of the application, it has the power to order the loss of any time which the applicant has spent in custody pending his appeal.

[1]     HKSAR v Chan Yuk Leong (Unrep., CACC 318/2013, 8 April 2014)

[2]     Appeal Bundle (“AB”), p 29E-F.

[3]     AB, p 19.

[4]     The applicant’s Criminal Record Summary – Part A, AB, pp 31-34.

[5]     The applicant’s Criminal Record Summary – Part A, item 8: AB, p 32; Mitigation submission, at [10]: AB, p 16.

[6]     The applicant’s Criminal Record Summary – Part A, items 9-10: AB, pp 32-33.

[7]     The applicant’s Criminal Record Summary – Part A, item 8: AB, p 32.

[8]     The applicant’s Criminal Record Summary – Part A, item 10, AB, p 33.

[9]     The applicant’s Criminal Record Summary – Part B, items 2, 4 and 5: AB, p 35.

[10]   AB, p 27O-T.

[11]   AB, p 28A-B.

[12]   AB, p 28L-N.

[13]   AB, p 29A-D.

[14]   AB, p 29H-J.

[15]   AB, p 29Q-S.

[16]   AB, p 29T-U.

[17]   HKSAR v Tai Cheuk Kin and Anor (Unrep., DCCC 1252/2011, 2 March 2012), at [9].

[18]   HKSAR v Tai Cheuk Kin (Unrep., DCCC 620/2014, 17 October 2014).

[19]   HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, at [71].

[20]   HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, at [70].

[21]   HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69, at [34].

[22]   Summary of Facts, at [8]: AB, p 9.

[23]   Namely, (i) possession of dangerous drugs in FLCC 1967/2020, (ii) driving whilst disqualified and using a motor vehicle on a road against third party risks in STCC 1526/2021, (iii) the present Charges 1 and 2 committed on 20 June 2021 and (iv) the present Charges 3 and 4 committed on 25 June 2021.