HKSAR v. CHIM CHOI LAN

CACC 425/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 425 OF 2012

(ON APPEAL FROM HCCC NO. 204 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  By an affirmation filed with the Court on 17 December 2015, the applicant sought leave to treat as a nullity her Notice of Abandonment of her application for leave to appeal out of time against the sentence of 7 years and 9 months’ imprisonment imposed on her on 11 October 2012, following her conviction on 10 October 2012 after trial by Deputy High Court Judge A Wong, as Wong J was then, and a jury, of unlawful trafficking on 23 December 2011 in dangerous drugs, namely 13.23 grammes of methamphetamine hydrochloride, ‘Ice’, and 0.77 grammes of nimetazepam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The applicant’s application for leave to appeal against conviction was refused by the Court[1] on 27 August 2013.  Reasons for Judgment in the case were handed down on 19 September 2013.  On 6 November 2013, the applicant gave notice of her application for leave to appeal out of time against sentence.  Her application for legal aid in that regard was refused on 21 February 2014.  On her filing with the Court on 8 August 2014 a Notice of Abandonment of that application, the application was dismissed pursuant to rule 39 of the Criminal Appeal Rules, Cap. 221.  The applicant’s application for leave to appeal was dismissed by the Appeal Committee of the Court of Final Appeal on 22 October 2015 pursuant to rule 7 of the Hong Kong Court of Final Appeal Rules, Cap. 484.  The notice issued by the Registrar to that effect does not condescend to describe the nature of the application for leave to appeal, but clearly it was in respect of conviction.  So, it was only after that determination that the applicant sought to resurrect her application for leave to appeal against sentence on 17 December 2015.

The trial

3.  The prosecution case was that at about 13:20 hours on 23 December 2011 the applicant was intercepted by police officers on the staircase of a building.  For her part, the applicant threw away a jacket, which she had been carrying over her left forearm.  A search of a pocket of the jacket revealed the dangerous drugs the subject of the count on the indictment.  Having been arrested and cautioned, the applicant said “I know nothing”.  In a subsequent video record of interview she maintained her assertion that she knew nothing of the dangerous drugs found in the jacket, stating that it was not hers and that she had not thrown it to the ground.  The applicant did not give evidence in the trial.

Reasons for sentence

4.  In his reasons for sentence, the judge noted that the applicant was then a single woman of 35 years of age and of no fixed abode.  Furthermore, he noted that she had a criminal record in particular for offences of possession of dangerous drugs.  On 19 May 2008, she was sentenced to 16 months’ imprisonment for possession of dangerous drugs.  On 23 May 2008, she was sentenced to a total of 9 months’ imprisonment for offences of possessing a dangerous drug, possession of equipment intended for the use of dangerous drugs and doing an act tending and intended to pervert the course of public justice.  Finally, on 20 January 2011 she was sentenced to 4 months’ imprisonment for yet another offence of possession of dangerous drugs.

5.  Having adverted to the judgment of this Court in the Attorney-General v Ching Kwok Hung [2], the judge said that the guidelines for sentencing in respect of Ice provided that unlawful trafficking in amounts of 10 to 70 grammes fall within the range of 7 to 10 years’ imprisonment.

Starting point

6.  The judge said that he saw no reason to depart from the “ tariff ” provided for by those guidelines.  Having noted that the applicant had trafficked unlawfully in two types of dangerous drugs, albeit that nimetazepan was in a small quantity and was a less serious dangerous drug, the judge stipulated a starting point for sentence of 7 years and 9 months’ imprisonment.

Sentence

7.  Having said that there was no justification for any discount on sentence, the judge sentenced the applicant to 7 years and 9 months’ imprisonment.

Nullity

8.  The applicant’s explanation for her application that the Court treat her Notice of Abandonment of her application for leave to appeal against sentence as a nullity was advanced first in an affirmation filed with the Court on 17 December 2015.  There, she stated that she had abandoned her application for leave to appeal against sentence on 8 August 2014 because at the time, with the assistance of a barrister assigned to assist her by the Hong Kong Bar Association, she was appealing against conviction to the Court of Final Appeal.  Of that, she said “that’s why I withdrew my appeal against sentence to the Court of Appeal.”

9.  Of subsequent developments, she said:

“ In mid November 2015, I received a notice from the Court of Final Appeal informing me that I could not appeal against my conviction to the Court of Final Appeal. Now I am discussing with my lawyer and I (wish to) renew my application to appeal against sentence out of time...”

10.  In a letter to the Court dated 16 August 2016, the applicant asserted that she abandoned her application for leave to appeal against sentence “having taken the advice of the barrister”.  Of that, she said “I withdrew the application of appeal on that occasion”.  She asserted that subsequently this year she had discussed the matter with her family, with whose assistance she had sought to search for authorities and documents.  In consequence, she had determined “to apply for leave to appeal.”

The applicant’s oral submissions

11.  During the applicant’s oral submissions we drew her attention to a letter, dated 27 May 2016, from the Hong Kong Bar Association’s Free Legal Service Scheme to the applicant, copied to the Appeals Registry.  There, issue was taken with the statements made by the applicant in her affirmation filed with the Court on 16 December 2015, by which she gave notice of this application that the Court treat her Notice of Abandonment as a nullity.  The letter noted, “...your ground is that when you filed the ‘notice of abandonment’ on 8 August 2014, counsel of our scheme was following up your appeal against conviction to the Court of Appeal, therefore you ‘cancelled the sentence first’.”  The Bar Free Legal Service Scheme asserted that “...we only notified the CFA on 28 January 2015 that we were going to offer assistance to you.  Before that, we were awaiting you to provide the relevant materials for a counsel to consider the feasibility to appeal to the CFA.”

12.  At the hearing, the applicant informed the Court that she accepted responsibility for filing the Notice of Abandonment of application for leave to appeal against sentence.  Furthermore, she acknowledged that not only had she signed a form in English by which that notice was given but also she had written in Chinese characters “I Chim Choi Lam, P-330119, after careful consideration, decide to cancel my appeal out of time (against sentence).”  Nevertheless, she asserted that, not being familiar with the law and procedure, she did not know that if she abandoned the application she could never renew it.

Ground of appeal against sentence

13.  In the letter to the Court dated 16 August 2016, the applicant stipulated various grounds on which she invited the Court to reduce her sentence.  First, she invited the Court to accept, given her criminal convictions for possession of dangerous drugs, that she was addicted to drugs and that a portion of the dangerous drugs in her possession at the time of the offence was for her own consumption.  Secondly, she said that she had been informed that her father’s leukaemia had reached a stage at which his life was in peril.  Thirdly, she contended that whilst in custody she had mended her ways.  She had enrolled in and passed various courses offered by the Emmaus Bible Correspondence School.  Also, she participated regularly in the church activities of the Hong Kong Christian Kun Sun Association.  On her release, she proposed living in that church and devoting herself to serving the community and the church.

The applicant’s oral submissions

14.  In her oral submissions, the applicant said that while she had been detained in prison she had come to learn that, if part of the dangerous drugs in which a person trafficked unlawfully was accepted to be for self-consumption, the Court would have given that person a lesser sentence than that imposed on a person who unlawfully trafficked in all the dangerous drugs.  As a result, she said that she decided “she would give it a try.”

The respondent’s submissions

Nullity

15.  Mr Simon Kwong, for the respondent, submitted that the applicant had advanced no grounds upon which this Court could accept the applicant’s submission that the Court should treat a Notice of Abandonment of her application for leave to appeal against sentence as a nullity.  He suggested that since the applicant now accepted responsibility for filing a Notice of Abandonment of application for leave to appeal against sentence there was no basis for the Court to conclude that she did so other than in full knowledge of the consequences.

Sentence

16.  Mr Kwong invited the Court to note that the first time that the applicant had ever raised the issue of self-consumption with regard to part of the dangerous drugs in which she had trafficked unlawfully was in her letter of 18 August 2016.  At trial, the defence was conducted on the basis that she denied possession of the jacket in which the dangerous drugs had been found and knowledge of any dangerous drugs.  That was the position she had taken in her out-of-court statements.  There was no mention in either of the notices of her application for leave to appeal against sentence, 6 November 2013 and 17 December 2015 respectively, of the issue of self-consumption.  That matter was not canvassed with the judge in mitigation.

17.  Mr Kwong submitted that the starting point taken for sentence by the judge was entirely apposite.  An arithmetic calculation of the starting point to be taken to sentence based on the quantity of Ice only, having regard to the sentencing guidelines in Ching Kwok Hung, produced a sentence of about 7 years and 2 months’ imprisonment.  Having invited the Court to note that the sentencing guidelines articulated by this Court for unlawful trafficking in ketamine and ecstasy applied to nimetazepan [3], Mr Wong submitted that the guidelines for trafficking in ketamine and ecstasy articulated in the judgment of this Court in the Secretary for Justice v Hii Siew Cheng [4] provided that sentencing for unlawful trafficking in amounts of up to 1 gramme fell within the sentencer’s discretion.  The guidelines provided that for unlawful trafficking in amounts over 1 and up to 10 grammes fall with a range of 2 to 4 years’ imprisonment.  In those circumstances he suggested that the appropriate starting point for sentence for unlawfully trafficking in 0.77 grammes of nimetazepan was around 18 months’ imprisonment.  Furthermore, the fact that the applicant was unlawfully trafficking in two different types of dangerous drugs was itself an aggravating factor in the commission of the offence.  Similarly, the applicant’s previous convictions for offences of possession of dangerous drugs was also an aggravating factor.

18.  In the result, Mr Kwong submitted that the starting point for sentence of 7 years and 9 months’ imprisonment was entirely justified.  The judge was correct to say that there was no mitigating factor for which the applicant was entitled to any discount from that sentence.

A consideration of the submissions

Nullity

The law

19.  As this Court has said on many occasions, in order for an earlier abandonment of an application for leave to appeal to be treated as a nullity it is necessary that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in particular that the applicant’s mind did go with his act.

20.  In light of the applicant’s concessions at today’s hearing that she took responsibility for filing the Notice of Abandonment of her application for leave to appeal against sentence and, in particular, her acknowledgement that she had written on the attached document that, after careful consideration, she had decided to “cancel my appeal”, we have no doubt that she was fully aware of the consequences of that notice.

Conclusion

21.  In all the circumstances, we are not satisfied that the applicant has established that her mind did not go with the act of making and filing a Notice of Abandonment of application for leave to appeal against sentence.  In those circumstances, it is not strictly necessary to consider whether or not there are any merits in her application for leave to appeal against sentence.

Sentence

22.  The judge was correct to say that he took account of the fact that the applicant was unlawfully trafficking in “two types of dangerous drugs”.  Although, as he noted, the quantity of nimetazepan was “small” it was, as he also noted, found in 198 tablets and two tablet fragments.

23.  Although the applicant now contends that part of the dangerous drugs were for her own consumption, no such contention was made prior to her letter of 16 August 2016.  As Mr Kwong pointed out, that submission was not made in submissions in mitigation prior to sentencing or in either of the notices of her application for leave to appeal against sentence.  Also, as was pointed out in the course of the hearing, in a video record of interview conducted of the applicant following her arrest, she denied that the jacket was hers and that she had thrown it to the ground.  She did not know what was contained in the jacket.  Although she said that she had taken drugs in the past, when asked when that had occurred she said “I don’t want to talk about it anymore, right.  Can I say nothing?”

24.  It is too late to raise that matter for the first time in this Court.  Although the Court has sympathy for the fact that her father is now gravely ill, that is not a matter that this Court can take into account in determining the appropriateness of the sentence imposed on the applicant.  Whilst the applicant is to be encouraged and congratulated for reforming herself whilst in prison, that is not a matter relevant to the issue of whether or not the sentence imposed by the judge was manifestly excessive.

Conclusion

25.  We are satisfied that the sentence of 7 years and 9 months’ imprisonment imposed on the applicant was entirely appropriate.  For the reasons set out earlier, the application for leave to treat as a nullity the Notice of Abandonment of the application for leave to appeal against sentence is refused.

Loss of time

26.  In the judgment of this Court, similarly constituted, in HKSAR v Mbachu Charles Sunday [5]we found it necessary to issue a warning of the consequences to applicants who try to resuscitate appeals they abandoned years earlier :

“ ...we take this opportunity now to sound a clear warning to others who are disposed to try and resuscitate appeals they have abandoned years after the event without any reason at all, let alone a good one, that this Court has the power under section 83W Criminal Procedure Ordinance, Cap 221 and will use it in appropriate cases to direct that the time, or part of the time, during which an appellant has been in custody pending the determination of his appeal may not be reckoned as part of the term of any sentence to which he is subject.”

That sentiment is apposite to the circumstances of this application.

[1] Lunn JA, Barnes and Macrae JJ.

[2] Attorney-General v Ching Kwok Hung [1991] 2 HKLRD 125.

[3] HKSAR v Wong Kin Kau [2010] 4 HKC 443.

[4] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[5] HKSAR v Mbachu Charles Sunday (CACC307/2009; unreported, 29 June 2016 at paragraph 30).