HKSAR v. CHOW TAK FUK

CACC 428/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 428 OF 2004

(ON APPEAL FROM HCCC NO. 266 OF 1992)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.  On 21 September 2004, the applicant pleaded guilty before Mr Recorder Lok SC to three counts of possession of dangerous drugs (Counts 1, 3 and 4) and to one count of trafficking in dangerous drugs (Count 2).

2. The offences took place on 29 May 1992.  The applicant was seen in a car park and apprehended there by customs officers.  In his trouser pocket was found a plastic bag with drugs, namely 27.42 grammes of a mixture containing 15.06 grammes of salts of esters of morphine (Count 1).  In the boot of the vehicle to which he had the keys were found several slabs of dangerous drugs, some bags of dangerous drugs, and some implements associated with trafficking in drugs.  These drugs formed the subject of Count 2 on the indictment, namely, trafficking in 1847.70 grammes of a mixture containing 918.41 grammes of salts of esters of morphine.  He said that these drugs belonged to him.  He was then taken to an address in Amoy Gardens where other drugs were found.  These drugs were the subject of Counts 3 and 4 on the indictment: as to Count 3, there were 5.31 grammes of a mixture containing 0.89 grammes of salts of esters of morphine; and as to Count 4, there were 17 tablets containing a total of 0.17 grammes of dipipanone hydrochloride, 15 tablets containing 0.07 grammes of methadone hydrochloride, and 4 tablets containing 0.01 grammes of flunitrazepam.

3. It was put forward in mitigation that the drugs belonged to the applicant’s brother who trafficked in dangerous drugs and for whom the applicant worked in order to feed the applicant’s drug addiction.  The applicant’s brother was indeed indicted and sentenced in July 1993, in relation to the same quantity as specified in Count 2, to a term of 15 years’ imprisonment after trial.  The applicant was however not then arraigned because he had absconded to the Mainland.  He stayed away for some years and in March 2004 he returned to Hong Kong, and was intercepted at Lok Ma Chau.  He said that the purpose of his surrender was to obtain documents here in order to legitimize his marriage on the Mainland so as to enable his son there to obtain benefits.

4. The applicant was aged 39 years at the date of the offences and 51 years at the date of sentence.  He has an appalling criminal record for a wide variety of offences including some for possession of dangerous drugs in 1986, 1987 and 1989.

5. On Count 1, the Recorder took a starting point of two years and allowing a discount of 25%, sentenced the applicant to a term of 18 months’ imprisonment.  For the offence reflected by the second count, he took a starting point of 21 years and reduced that to a term of 15 years and 9 months’ imprisonment – again a 25% discount – with further credit of nine months for cooperation with the customs officers and “for the fact that you had voluntarily chosen to return to Hong Kong”; a resulting sentence in relation to Count 2 of 15 years’ imprisonment.  Counts 3 and 4 attracted sentences of one month and three months imprisonment respectively.  The Recorder ordered all these terms to run concurrently, making a total of 15 years imprisonment.

6. The applicant, who appears today in person, complains that whereas he pleaded guilty, his sentence is the same as that imposed upon his brother who had pleaded not guilty.  This is an obvious disparity, but it is well-established that where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused is proper.  It seems to us that the applicant’s brother was the beneficiary of an extraordinarily light sentence and what this applicant now seeks is the benefit of the same windfall.  According to established principle, he is not entitled to that windfall.

7. The applicant then complains that he was not given full credit for his plea of guilty, namely the one-third discount that normally follows such a plea.  In this regard the Recorder denied the full discount because the applicant had absconded.  The Recorder was correct in viewing that fact as one that will normally cut into the discount that might otherwise be expected.  That said, surrender to the authorities is a mitigating feature but the extent of the mitigating effect is always a contextual question.  Thus, for example, surrender by a person whose participation in an offence may not otherwise have come to light would be a significant mitigating factor indeed; much more so than surrender of an arrested person after he has absconded, and even in the latter case the circumstances behind that surrender will vary from case to case.  Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.

8. In this case, the Recorder did recognize the fact of surrender, and gave some credit for it, though not such as to result in a full one-third reduction for the plea.  That was an appropriate course to take, and in the circumstances he did not err in principle or in the amount of credit given.

9. Accordingly, the application for leave to appeal is dismissed.