HKSAR v. CHONG CHO-KIT

CACC 363/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 363 OF 2005

(ON APPEAL FROM DCCC NO. 656 & 659 OF 2005)

---------------------------

---------------------------

------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------

Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1. The applicant was convicted on his own plea in the District Court before Judge Longley of two charges of trafficking unlawfully in dangerous drugs (charges 1 and 4) and one charge of managing a divan (charge 2).  On 10 August 2005, the judge passed an overall sentence of 6 years’ imprisonment on him.  Charge 1 involved 10.88 grammes of heroin, whereas charge 4 involved 5.9 grammes.  Charges 1 and 2 took place on the same occasion of 17 April 2005 whereas charge 4 occurred on 10 May 2005 when the applicant was on police bail for charges 1 and 2.

2. The applicant has sought leave to appeal against sentence.  After hearing him this morning, we refused to grant leave.  Our reasons appear below.

Grounds of appeal

3. The applicant relies upon the following grounds:

(1)    He originally did not intend to plead guilty to charge 4, but he was misled by his incompetent legal adviser to plead guilty.  The advice provided by his legal adviser was that if he pleaded guilty, the judge would probably pass sentences with just a small portion running consecutively, if not all concurrently.

(2)    The trafficking in charge 1 and the keeping of a divan in charge 2 took place at the same time and place, thus either it was unnecessary to bring the two separate charges against him or the sentences on the two charges should be concurrent.

(3)    In 1991 and 1996 the applicant was involved in two cases of unlawful trafficking in heroin, respectively SC 16 of 1992 and HC 87 of 1997.  The second offence was committed after the applicant had absconded whilst on bail for the first offence.  In February 1997 the applicant was sentenced to six years’ and eight months imprisonment for the first case.  In August 1997 in sentencing the applicant in respect of the second case the judge imposed sentence having had regard to the total quantity of dangerous drugs involved in the two separate cases, namely 275.25 grammes of heroin.  The judge stated that an appropriate starting point for that total amount of heroin was 13½ years’ imprisonment which, discounted in light of the pleas of guilty, would attract a sentence of nine years’ imprisonment.  Thus, the overall sentence in the present case of six years’ imprisonment following guilty pleas involving a total of 16.78 g of heroin is excessive.

Facts

4. The facts relating to the charges as well as the judge’s reasons for sentencing were succinctly set out in the Reasons for Sentence in which he addressed the applicant in the second person, as follows:

“2.    The offences to which Charges 1 and 2 relate came to light as a result of a police raid on a flat in Portland Street in Mongkok on 17 April this year.  That flat was being used as a divan.  Paraphernalia used for taking drugs was found on the premises as well as a notebook recording sales of drugs.

3    Apart from the 2^nd defendant, who was the tenant of the premises, three other males were present.

4.    On you were found 20 packets which contained 15.68 grammes of a mixture containing 10.88 grammes of heroin hydrochloride, in other words, the drugs which are the subject of Charge 1.

5.    You admitted to the police that you were responsible for the daily operation of the divan, that the packets found on you were to be sold by you in the premises, and that of the money found on you $1,100 was the proceeds of the sale of drugs.

6.    That same day, 17 April, you were arrested and placed on police bail pending analysis of the drugs that had been seized.

7.    Despite your arrest for these very serious offences, just over three weeks later on 10 May this year you were stopped by the police in Castle Peak Road.  On that occasion, you were found to have 30 packets on you containing the drugs referred to in the 4^th charge, 7.60 grammes of a mixture containing 5.90 grammes of heroin hydrochloride.

8.    You admitted carrying the drugs for others in order to earn money.

9.    These are very serious offences indeed, aggravated by the fact that you committed the offence in Charge 4 while on bail in respect of the offences to which Charges 1 and 2 relate.

10.    In my view, the appropriate starting points for the offences are as follows: for Charge 1, 5 years’ imprisonment; for Charge 2, 2 years’ imprisonment; and for Charge 4, 4 years’ imprisonment.  In my view, an overall starting point of 9 years’ imprisonment is appropriate to represent the totality of your criminality in this case.

11.    You cannot claim in mitigation that you are a man of previous good character.  You have an extremely poor record.  You have been sentenced on three previous occasions to long terms of imprisonment for trafficking offences.  You have, however, pleaded guilty and are entitled therefore to the usual discount of one-third to reflect that fact.

12.    On Charge 1, I sentence you to 40 month’s imprisonment.  On Charge 2, I sentence you to 16 months’ imprisonment 6 months of which are to run consecutively to the sentence on Charge 1.  On Charge 4, I sentence you to 32 months’ imprisonment, 26 months of which are to run consecutively to the sentences on Charges 1 and 2.  That means a total sentence of 72 months’ imprisonment – 6 years.”

Ground (1)

5. Ground (1) raised by the applicant, as we understand it, is not complaining about his mistakenly pleaded guilty to charge 4; in reality he complains that only a small portion of the sentence for charge 4 was made concurrent with that for charge 1. 

6. We note that the applicant was not a novice in drug trafficking.  Apart from the trafficking offences in SC 16 of 1992 and HC 87 of 1997 that he admittedly committed years ago, he was involved in peddling drugs and managing a divan for drug-users on 17 April 2005, with 20 packets of drugs found on him, and he further committed charge 4 a few weeks later on 10 May of trafficking in 30 packets of drugs, whilst on bail in respect of the offences committed on 17 April.  These are aggravating factors, on which we shall elaborate later.

7. In our judgment, in those circumstances, the judge was fully entitled to make the order that he made, namely that 26 months out of the total sentence of 32 months on charge 4 was to run consecutively to the sentence imposed on charge 1.  Ground (1) has no substance.

Ground (2)

8. Ground (2) is also without merit.

9. Trafficking in a dangerous drug and managing a divan are two distinct offences.  Although in the present case, these two offences were committed at the same time on 17 April 2005 and at the same place, in a flat in Portland Street, on the facts and on principle, it is appropriate for separate sentences to be imposed on them.  The applicant’s involvement was quite different from that of his co-accused who was only charged with the offence of permitting the flat to be used as a divan and was not charged with trafficking, because it was the applicant alone who possessed and peddled the dangerous drugs to customers in the flat. 

10. The sentence of 2 years’ imprisonment adopted by the judge as the starting point for charge 2 is consistent with authorities: see HKSAR v Lam Lai-chu Patsy, CACC 56 of 2003 (6 Aug 2003, unreported), para 8, HKSAR v Law Chi Hung [2005] 1 HKC 275, para 3, and HKSAR v Ng Ka-wing, Kevin, CACC 563 of 1999 (23 Feb 2000, unreported).  In the latter case, the Court of Appeal agreed with the following observations made by Pang J in HKSAR v Ho Sai-chak, HCMA 780/1999:

“… Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters.  One activity does not necessarily include the other.  The appellant was prepared, in addition to providing drugs, to offer the convenience of a divan to drug addicts.  As such, the two charges cannot be said to be arising out of the same set of facts.

           The order for the sentences to run consecutively cannot be criticised as being wrong in principle.  However, one must not lose sight of the totality principle. …”

11. Moreover, the judge did take into account the fact that the two offences under charges 1 and 2 were committed at the same time and place in making only 6 months of the sentence for the managing of a divan consecutive to the sentence for the trafficking.

12. Ground (2) fails.

Ground (3)

13. In this ground, the applicant’s complaint is that the judge did not take the total quantity of the drugs under charge 1 and charge 4 as the basis for calculating and in passing sentence, so that he did not have the benefit of grouping the quantities together that had been available to him in his former cases in the High Court.

14. It is only in respect of trafficking offences that arose from the same incident that the aggregated total amount of drugs would be taken for fixing the starting point: see HKSAR v Yip Pik-kwai, CACC 593 of 1998, HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 832E-H, HKSAR v Tsoi Yik Fai, CACC 89 of 2005[1] and HKSAR v Tse Shek-wai, CACC 46 of 2006.  The rationale is obvious because it would be unfair, for example, to treat two lots of drugs, one lot found on the accused when he was stopped when coming out of his home and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence.  Where two different transactions not arising out of the same incident were involved, especially when they took place on different dates, there would be little justification in aggregating the quantities of drugs involved in sentencing.

15. It is plain from the Reasons for Sentence that the judge gave consideration to two important factors that aggravated sentence, namely, the applicant was re-offending and he committed charge 4 while he was on bail for charges 1 and 2.  These factors are aggravating features in accordance with sentencing principles.

16. Before dealing with these sentencing principles, we need only refer to the sentencing guidelines for trafficking in heroin hydrochloride laid down in R v Lau Tak-ming [1990] 2 HKLR 370 to examine if the starting points adopted by the judge for the trafficking offences were appropriate.  The tariffs of sentences that are relevant to our consideration can be found at p 387 of the report, as follows:

(a)    Up to 10 grammes of narcotic : 2 to 5 years imprisonment.

(b)    Between 10 grammes and 50 grammes : 5 to 8 years.

(c)    Between 50 grammes and 200 grammes : 8 to 12 years.

(d)    Between 200 grammes and 400 grammes : 12 to 15 years.

17. For the 10.88 grammes of heroin in charge 1, the judge adopted 5 years as the starting point and for the 5.90 grammes in charge 4, he adopted 4 years as the starting point.  The applicant does not challenge these starting points.  What he complains about is that had the quantities particularised in the two charges been taken together, an overall quantity of 16.78 grammes would have resulted and the appropriate starting point would have been somewhere in the region of 6 years’ imprisonment.  That was the approach taken by the judge in sentencing the applicant in August 1997 in respect of HC 87 of 1997, where the judge added the quantities of heroin particularised in that case to the quantities of heroin particularised in SC 16 of 1992, achieving an aggregate of 275.25 grammes of heroin.  From that aggregate he calculated a starting point of 13½ years’ imprisonment, reduced it by one-third for the applicant’s pleas of guilty, resulting in an overall sentence of nine years’ imprisonment for his offences of unlawful trafficking in dangerous drugs in both cases. 

18. Given that the offences reflected in the two cases are separated by five years in time and that the second case was committed after the applicant had absconded whilst on bail, clearly the judge’s stated approach to sentence, namely to aggregate the amount of heroin involved in the two separate cases to calculate an overall starting point, was flawed. Nevertheless, it is to be noted that the judge stated that he had regard to the principle of totality in determining to what extent the sentences that he imposed would be ordered to be served consecutively to the sentences imposed earlier.  In the result, he ordered that the sentences that he imposed commence after half the term of imprisonment imposed earlier.  However, we are not dealing with the former cases; our task is to consider whether the sentences in the present case are proper or otherwise manifestly excessive.

19. This morning the applicant produced two decisions in Chinese on sentence for our consideration, namely DCCC 657/2005 and HCCC 211/2005, to say that the sentences meted out in those two cases were much lighter than that imposed on him by the judge.  While we accept that the sentences in those two decisions were very lenient, as this Court has frequently said, sentences in other cases cannot be used as the true basis for comparison and each case must be considered and decided upon in its own facts and circumstances.

20. It is clear that the judge in the present case had adopted the overall starting point of 9 years partly because of the applicant’s previous similar criminal records.  This is well justified. 

21. In Chan Pui Chi, referred to above, this Court, differently constituted, explained at pp 833C-834B:

       “Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned.  The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

       …

       … more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

       … the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned.  This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. …”

22. The judge also took into account the fact that applicant committed charge 4 on 10 May 2005 while he was on bail in respect of charges 1 and 2 that were committed on 17 April 2005, less than a month later.  This again is in accordance with well-settled sentencing principles. 

23. In R v Lui Chun-hei [1989] 1 HKLR 611, at 613 the Court of Appeal observed:

“The individual sentences imposed could have been higher.  They were properly ordered to be served consecutive to the sentences imposed for the offences which the applicant committed while he was on bail, given the overall period to be spent in prison and having in mind the persistent course of conduct engaged in by the applicant.”

24. In HKSAR v Tsang Kwok Keung, CACC 401/2002 (30 January 2003, unreported), the Court of Appeal stated:

“11.        Returning to the present case, we are in no doubt that the judge was, as to the first ground of appeal, entitled to impose a wholly consecutive overall sentence to the term of imprisonment which the Applicant was already serving.  He had committed these offences whilst on bail for trafficking in dangerous drugs and we can see no merit in the argument that the judge fell into error in this regard.”

25. The judge gave full credit to the applicant for his guilty plea by discounting the starting points by one-third, resulting in the sentences of 40 months, 16 months and 32 months for charges 1, 2 and 4 respectively.  He also took into account the totality principle when making 6 months out of the sentence for charge 2 and 26 months of that for charge 4 consecutive to the 40 months for charge 1.  He did not pass a wholly consecutive sentence on charge 4.

26. In all the circumstances, while the overall sentence of 6 years’ imprisonment may be said to be slightly on the high side, we do not consider that it is manifestly excessive so as to justify our intervention. 

Conclusion

27. For the above reasons, the application for leave to appeal against sentence was dismissed.

[1] Judgment in Chinese on 11 August 2005, unreported