HKSAR v. SUN CHI MAN

CACC 417/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 417 OF 2015

(ON APPEAL FROM DCCC NO. 611 OF 2015)

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J U D G M E N T

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1. The applicant faced three charges on the charge sheet, namely one charge of Possession of a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1), one charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 2), and one charge of Trafficking unlawfully in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 3). She pleaded guilty to all three charges before HH Judge Casewell (“the judge”) in the District Court on 15 October 2015, and was sentenced to a total of 48 months’ imprisonment on 7 December 2015.

2. On 15 December 2015, the applicant filed a Notice of application for leave to appeal against her sentence (Form XI).

The facts

3. The applicant agreed to the following facts.  On 18 March 2015, a plain clothes police officer was patrolling near the junction of Nathan Road and Pak Hoi Street in Yau Ma Tei.  The officer noticed the applicant looking around and pressing her shoulder bag as she walked into a department store, and he accordingly intercepted her for inquiry.  Upon a search of her bag, a re-sealable plastic bag containing 40 plastic wrapped pellets containing suspected dangerous drugs was found.  The applicant was arrested and, under caution, she claimed that they were for her own consumption. The pellets were later examined and found to contain a total of 7.48 grammes of a mixture containing 5.23 grammes of heroin hydrochloride.  The estimated street value of the drugs was HK$3,425.65.  These facts constituted Charge 1.

4. The applicant was subsequently released on police bail.  On 3 May 2015, another plain clothes police officer on patrol in the vicinity of a shop called “Mini So” in Nathan Road saw the applicant appearing to peep into the shop.  The officer followed the applicant as she went into and then hurriedly left the shop, going first into Waterloo Road and then into Portland Street.  The applicant was stopped by the officer at Portland Street for enquiry, whereupon a search of her cosmetics bag revealed 5 re-sealable plastic bags containing a total of 164 plastic wrapped pellets suspected to contain dangerous drugs.  She was arrested and, under caution, the applicant again claimed that the drugs were for her own consumption.  The pellets were later found to contain a total of 30.82 grammes of a mixture containing 19.74 grammes of heroin hydrochloride, with an estimated street value of HK$12,929.70.  Upon her plea, the applicant accepted that she had all of the heroin particularised in Charge 3 for the purpose of unlawful trafficking.  These facts constituted Charge 3.

5. The applicant was then asked why she had walked out of “Mini So” in such a hurry, and the applicant took out a number of accessories and cosmetic items from her trouser pockets.  The applicant said she had stolen the items from the shop.  The items were later confirmed by a sales assistant to be unsold goods belonging to the shop, valued at HK$95.  The applicant was then further arrested for theft.  Under caution, she admitted stealing the items and asked for a chance.  These constituted the facts of Charge 2.

6. Police enquiries revealed that the applicant was receiving Comprehensive Social Security Assistance payments of $5,565 per month for the period between 15 January 2012 and 18 June 2015.

Mitigation

7. In mitigation at the first hearing on 15 October 2015, counsel acting on the applicant’s behalf submitted that she had started abusing heroin at the age of 17, which had affected her mental and physical state.  The case was accordingly adjourned to 7 December 2015 for a background report and for the defence to prepare medical reports.

8. On 7 December 2015, counsel submitted medical reports from West Kowloon Psychiatric Centre and the Lo Wu Correctional Institution detailing the applicant’s medical history, which included polysubstance dependence syndrome, borderline personality disorder, and the fact that she was undergoing a hysterectomy operation for uterine fibroid.  She also had a history of deep vein thrombosis.  The background report described her drug abuse[1] and past failed attempts at withdrawal.  It was submitted by counsel that she had tragically lost three family members within a short period of time whilst she was in prison, one of them being her elder brother who had died from a drugs overdose.  She had striven for a new life and gained qualifications whilst in prison, and worked as a care worker until her medical condition forced her to resign.  Her addiction to drugs was also due to the influence of her peers, with whom she would take drugs together, coupled with her own weak self-control.  Mitigation letters written by the applicant were also submitted to the court.

9. Counsel invited the judge to accept that the applicant was a chronic drug addict with a deep-rooted problem, and that she had possessed a significant proportion of the drugs in Charge 3 for her own consumption. Accordingly, he invited the judge to discount the starting point on Charge 3 by 25%.  He further suggested starting points of 2 years’ imprisonment in respect of Charge 1, and 3 months’ imprisonment in respect of Charge 2.  As for Charge 3, counsel suggested that an appropriate starting point would be 6 years’ imprisonment.  Taking into account the totality principle, counsel submitted that the total sentence should be in the region of 4½ years’ imprisonment.[2]

Reasons for Sentence

10. In sentencing the applicant, the judge took into account her background, criminal record and her medical history as reflected in the various reports produced.  He commented that “[i]t is a deeply saddening state of affairs, clearly her addiction is a medical and psychiatric problem.”[3] However, the judge said that the tools available to the court in such situations were limited and that he could only impose a custodial sentence to deter the applicant’s addiction and protect the public.[4]  In relation to Charge 1, the judge took a starting point of 18 months’ imprisonment, which he enhanced by a further 6 months to reflect the latent risk of distribution and the applicant’s poor criminal record, resulting in a sentence after trial of 2 years’ imprisonment.  This was reduced to 16 months for her plea of guilty.  In respect of Charge 2, the judge adopted a starting point of 3 months’ imprisonment, which he reduced to 2 months for plea.

11. As for Charge 3, the most serious of the charges, the judge accepted that the applicant was likely to consume a substantial quantity of the drugs in question.[5] He adopted a starting point of 6 years’ imprisonment, which he then discounted by 25% to reflect the fact of her own consumption of some of the drugs, thus bringing the appropriate sentence after trial down to 4 years and 6 months’ imprisonment.  According the applicant a further one-third discount for her plea of guilty, he passed a sentence in respect of Charge 3 of 3 years’ imprisonment.

12. The judge then proceeded to consider the question of totality.  He noted that the three charges were distinct and separate offences.  However, wholly consecutive sentences would result in a sentence which was too long.  Accordingly, the sentences on Charges 1 and 2 were ordered to be served concurrently with each other, but with 12 months of those sentences to be served consecutively to the sentence on Charge 3.  In the result, an overall sentence of 4 years’ imprisonment was imposed.

Grounds of Appeal

13. In her Form XI, the applicant states that she sought leave to appeal against her sentence in respect of Charge 1 only, yet has not provided any substantive grounds for her appeal against sentence.  Before me this morning, the applicant initially applied for an adjournment of this hearing so that her family members could raise funds for her appeal, her applications for assistance from the Department of Legal Aid and the Bar Free Legal Advice Scheme having been rejected.  She also requested that the appeal bundle be translated into Chinese.

14. I refused her application, pointing out that she has not to date articulated any grounds of appeal against sentence nor seen fit to provide any submissions in writing in support of her application.  As for the translation of the appeal bundle, the applicant has already been provided well in advance of these proceedings with a comprehensive written summary in Chinese of the respondent’s written submissions.

15. In her oral arguments this morning on the substantive application, the applicant has referred to two authorities, one a magisterial appeal decision of Deputy Judge Pang (as he then was) in 2009, namely HKSAR v Chow Yu Shing (unrep., HCMA 151/2009), and a first instance decision from Kowloon City magistracy, in support of her contention that her sentences on Charges 1 and 3 were manifestly excessive.

The respondent’s submissions

16. Ms Audrey Parwani SPP (Ag), on behalf of the respondent, correctly submits that, although the applicant has indicated an intention to appeal against her sentence on Charge 1 only, her application for leave to appeal should be deemed as extending to all of the sentences, by virtue of section 83I(2) of the Criminal Procedure Ordinance, Cap 221.

17. In respect of Charge 1, it was submitted that a starting point for simple possession of dangerous drugs would normally be in the range of 12 to 18 months’ imprisonment, so that a starting point of 18 months’ imprisonment was well within the judge’s discretion: see HKSAR v Mo Cho Tik.[6]  The respondent also contended that the applicant had a poor criminal record with similar drug-related convictions, the latent risk of redistribution was high and the applicant was unemployed, so that the enhancement of 6 months was justified.  The overall sentence of 16 months’ imprisonment after plea was also neither wrong in principle nor manifestly excessive: see HKSAR v Chan Tai Wah.[7]

18. In relation to Charge 2, it was submitted that there was no general approach to sentencing for theft cases.  However, the court would be fully justified in imposing an enhanced sentence to deter repeat offenders: see HKSAR v Yang Yan Yun.[8] The respondent submits that the applicant was from her criminal record a persistent offender, so that her sentence for this offence was justified.  In any event, any complaint about the individual sentence on Charge 2 was redundant since the sentence was made wholly concurrent with the sentence on Charge 1.

19. With regard to Charge 3, Ms Parwani submits that the starting point taken by the judge was in line with the relevant sentencing guidelines.  Taking into account the applicant’s poor criminal record and that she had committed the offence whilst on police bail for Charge 1, the starting point was fully justified.  The 25% discount for self-consumption was also a generous one.

20. As for totality, it was submitted that the correct approach was to determine whether the second or other offences added to the culpability of the first, so that partially or wholly consecutive sentences may be appropriate in considering overall culpability: see HKSAR v Ngai Yiu Ching.[9]  In this case, it was submitted that the consecutive sentence was proper since (i) the two sets of offences were both serious; (ii) there was no connection between them; (iii) Charges 2 and 3 were committed when the applicant was on police bail; and (iv) the applicant was a persistent drugs-related offender.  These factors added to the culpability of Charge 1, so that a consecutive term could properly be imposed.

21. As for the reference to the two decisions cited by the applicant, Ms Parwani says that they are simply decisions on other facts in other cases, which are not relevant to the present case.  One is not binding on this court and the other is a first instance magisterial decision.

Consideration

22. There can be no reasonable complaint about any of the individual sentences passed in relation to the three separate charges. All were consistent with principle and guideline authority.  Indeed, the starting point on Charge 3 might have been higher, given that the offence was committed whilst on police bail for Charge 1.  Furthermore, there can be no complaint whatsoever about the fact that the sentences on Charges 1 and 2 were ordered to run wholly concurrently with each other; although, arguably, the sentences which were more appropriate candidates to be made wholly concurrent with each other in the circumstances were Charges 2 and 3, since they were committed on the same day at more or less the same time.

23. The only possible room for complaint could be the consecutive element of 1 year imprisonment ordered as between the sentences on Charges 1 and 2 and the sentence on Charge 3.  However, given the fact that there were sets of offences committed on different days and that Charges 2 and 3 were committed whilst on police bail for Charge 1, the consecutive element of 1 year imprisonment gave appropriate effect to what was a “seriously aggravating factor”: see HKSAR v Leung Ting Fung.[10]

24. Moreover, the overall sentence was entirely appropriate for someone in the applicant’s circumstances, particularly one with a previous conviction (in 2006) for Trafficking in dangerous drugs and numerous convictions for dishonesty.  I should make clear that I have been careful to ensure that a factor relevant to assessing the correctness of the individual sentences is not double-counted when considering the question of the consecutive element.

25. In the result, the applicant received an ultimate sentence which was lower than even that which her experienced advocate was urging upon the court.[11] Indeed, the overall sentence imposed in the present case was a lenient one.

26. As for the two cases cited by the applicant, the courts have said time and again that they can provide no more than examples of what other courts have decided on other facts in other cases.  They provide no assistance on what the proper sentence should be in this particular case.

27. In the circumstances, I can see no reasonably arguable ground of appeal against sentence, and the application must be refused.  The applicant is duly advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of her application.

[1] At her peak, she injected heroin six to seven times a day, and 2 doses of Triazolam.

[2] Transcript of Mitigation, Appeal Bundle, p 28A-D.

[3] Reasons for sentence, Appeal Bundle, p 13J-K.

[4] Reasons for sentence, Appeal Bundle, p 13L-P.

[5] Reasons for sentence, Appeal Bundle, p 15E-G.

[6] [2001] 1 HKC 261.

[7] [2012] 4 HKLRD 674.

[8] [2014] 1 HKLRD 564.

[9] [2011] 5 HKLRD 690

[10] [2015] 1 HKC 290, at 297 E-G, although the Court there said that “the correct approach … is to regard the fact that that an offence was committed whilst on bail as a factor seriously aggravating that offence and to reflect the presence of this seriously aggravating factor by enhancing appropriately the starting point for sentence.”

[11] Reasons for sentence, Appeal Bundle, p 28C.