HKSAR v. CHUNG HO YIN

CACC 75/2020

[2021] HKCA 1265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 75 OF 2020

(ON APPEAL FROM DCCC NO 558 OF 2019)

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The appellant was granted leave to appeal his sentence for offences in respect of two separate incidents, the first of which involved him successfully evading apprehension by a police officer while unlawfully driving a private motor vehicle, and the second involved him again unlawfully driving a private motor vehicle but this time resulting in his apprehension and the finding of a quantity of drugs on his person and later at his home.  We dismissed the appeal as the overall sentence imposed could hardly be characterised as excessive given the serious offending that took place and the appellant’s appalling history for committing offences of this type.  

The charges

2.  As a result of these two incidents, the appellant was charged with the following offences:[1]

Charge 1:    Dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.

Charge 2:    Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance.

Charge 3:    Using a motor vehicle without third party insurance, contrary to section 4(1) and 2(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

Charge 4:    Taking conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210.

Charge 5:    Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance.

Charge 6:     Using motor vehicle without third party insurance, contrary to section 4(1) and 2(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

Charge 7:    Trafficking in dangerous drugs, namely 1.22 grammes of a powder containing 1.03 grammes of ketamine and 7.30 grammes of a solid containing 4.92 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Charge 8:    Trafficking in dangerous drugs, namely 8.39 grammes of a solid containing 6.26 grammes of ketamine, 1.34 grammes of a powder containing 1.09 grammes of ketamine, 0.50 gramme of a solid containing 0.37 gramme of cocaine and 0.86 gramme of a crystalline solid containing 0.82 gramme of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

3.  Charges 1, 2 and 3 were committed on 7 January 2019, while Charges 4, 5, 6, 7 and 8 were committed on 28 January 2019.

The appeal against sentence

4.  The appellant pleaded guilty to all charges, except for Charge 4 which was ordered to remain on the court file.  On 29 May 2020, District Court Judge K Lo (the judge) sentenced the appellant to a total of 58 months and 30 days’ imprisonment (4 years, 10 months and 30 days’ imprisonment).  He was also disqualified from driving for a total period of 6 years to commence after he finished his term of imprisonment and further ordered to attend and complete a driving improvement course.

5.  Leave was granted to the appellant to appeal his sentence on the basis that it was reasonably arguable that the methodology adopted by the judge may have had an impact on the overall sentence and failed to take into account the totality principle.[2]

6.  On the basis of the grant of leave, Mr Joseph Lee, for the appellant, has refined his ground of appeal to complain that the judge failed to properly apply the totality principle, resulting in an excessive overall sentence, and to consider that the drug offences were part and parcel of the second set of road traffic offences.  He takes no issue with the respective starting points adopted by the judge for each charge, nor with the period of disqualification from driving and the order for a driving improvement course. 

The facts

7.  The facts agreed and outlined to the judge when the appellant pleaded guilty to the offences disclose two separate incidents that occurred on 7 and 28 January 2019, respectively.[3]

8.  At about 4.00 pm on 7 January 2019, a police officer, driving a police vehicle, noticed the appellant, who was driving a private vehicle (registration number SC 926), cross double white lines by making an illegal U-turn.  The police officer informed the appellant of his traffic violation and requested that he pull his vehicle over.  The appellant stopped his vehicle in front of the police vehicle and as the police officer alighted from his vehicle, the appellant sped off ducking and weaving through the traffic ahead, committing numerous traffic violations in the process.  The police officer gave chase and made repeated warnings to the appellant to stop his vehicle, which he ignored.  Eventually, the appellant was forced to stop his vehicle at a controlled junction because the traffic was stationary.  The police officer alighted from his vehicle with the intention to intercept the appellant.  The appellant reversed his vehicle crashing into the front of the police vehicle and then moved forward attempting to drive between two stationary vehicles.  The police officer repeatedly demanded the appellant to stop, hitting the appellant’s vehicle with his baton, but the appellant instead continued to drive his vehicle between the two stationary vehicles, causing damage to the vehicles and injuries to two of the occupants of one of the vehicles.  The appellant suddenly reversed his vehicle and made a U-turn, driving his vehicle in the opposite direction of the traffic flow before turning into another road and fleeing from the scene.  Sometime later, the appellant’s abandoned vehicle was located, having crashed into a road fence.

9.  At the time of this incident, the appellant was disqualified from driving for the period between 23 September 2016 and 22 September 2019 and hence there was no insurance policy or security in respect of third party risks as required under the Motor Vehicles Insurance (Third Party Risks) Ordinance.

10.  On 22 January 2019, the appellant borrowed the use of a private vehicle (registration number SY 1367) from an acquaintance, who believed he had a valid driving licence because he had seen him driving a vehicle in the past.

11.  At about 4.40 p.m. on 28 January 2019, a police officer observed the appellant, driving the private vehicle from a carpark to a shopping centre, where he parked the vehicle.  After he alighted from the vehicle, the appellant was intercepted by a team of police officers. He was searched and in a metal box inside his jacket pocket was found a metal box containing 2 plastic bags with a total of 1.22 grammes of a powder containing 1.03 grammes of ketamine, and another metal box containing one plastic bag containing 15 plastic bags consisting of a total of 7.30 grammes of a solid containing 4.92 grammes of cocaine.  Also found on the appellant were two mobile telephones, two notebooks inside his waist bag, and cash in the sum of $7,750.

12.  The appellant was taken to his home where the police conducted a search.  They found a zipper bag with 11 plastic bags inside containing a total of 7.77 grammes of a solid containing 5.78 grammes of ketamine, a pen inside of which were 2 plastic bags containing a total of 1.34 grammes of a powder containing 1.09 grammes of ketamine and one plastic bag containing a total of 0.62 gramme of a solid containing 0.48 gramme of ketamine, one plastic bag with a total of 0.38 gramme of a solid containing 0.29 gramme of cocaine, one plastic bag with a total of 0.82 gramme of a crystalline solid containing 0.82 gramme of Ice, one plastic bag containing a total of 0.04 gramme of a crystalline solid containing Ice, one plastic bag containing a total of 0.12 gramme of a solid containing 0.08 gramme of cocaine, one electronic scale, 2 notebooks and 20 Sim cards.

13.  In a subsequent record of interview, the appellant stated that he worked as a transportation worker at a vegetable store, earning about $20,000 a month and that the cash of $7, 750 found on him at the time of the offence was from his salary.  He confirmed that he had a driving licence for about 10 years and was disqualified from driving for 3 years from 23 September 2016.  He admitted that he borrowed the vehicle, SY 1367, from an acquaintance and did not tell him that he had been disqualified from driving.  He claimed that he had purchased the drugs found on his person for $7,000 in the early hours on 28 January 2019, which he kept with him because he wanted to consume some of the drugs at work. He said that the amount of drugs would be sufficient for him to consume for a month.  He also claimed that the drugs found at his home were for his own consumption.  He confirmed that the 2 mobile telephones belonged to him and that one of them was used by him to purchase drugs.  He said that the notebooks on him and at his home belonged to him, which he used to make records of his work.  He claimed that numbers of “HK$” represented the costs of the invoices and that the word “ 一粒 (1 packet)” meant a box of goods and “7G” meant kilogrammes of goods.

The mitigation and background of the appellant

14.  At the time of the sentencing, the appellant was aged 35 years, and working as a transportation worker, earning $20,000 a month.  He was married but had separated from his wife with whom he had two daughters.  It was claimed that a significant proportion of the drugs, namely, 0.82 grammes of Ice, 1.09 grammes of ketamine in powder form and around 1.5 grammes of ketamine narcotic (Charge 8) were for his own consumption, whilst the rest of the drugs were for trafficking.

15.  Mr Lee, who represented the appellant in the court below, presented a very comprehensive and detailed submission on sentencing.[4] He examined each individual offence and made submissions as to the relevant considerations to be taken into account and the likely penalty to be imposed.  However, the submission did not take into account the overall criminality involved, nor did it address the multiplicity of offences and that the appellant was a serious recidivist.  Also missing from the submission was the fact that the appellant was an actual (or direct) trafficker of more than one drug. 

16.  It was accepted by Mr Lee, during the course of mitigation, that the appellant committed the second set of traffic offences whilst on his way to deliver the drugs found on him (Charge 7).  No claim was made that these drugs were for the appellant’s own consumption.  It was submitted, however, that in relation to the drugs found at the appellant’s home (Charge 8), 40% of the total weight of the narcotics were for his own consumption.

The reasons for sentence

17.  The judge, through no fault of her own, had to address the detailed submissions on sentencing as well as the relevant matters that had been raised for her to address.[5] She noted that the appellant had come before the courts on 15 previous occasions, from July 2001 to September 2018, involving 29 convictions of which 14 related to drug offences, including a conviction for trafficking in a dangerous drug, and 2 previous convictions for dangerous driving, 2 previous convictions for using a motor vehicle without third party insurance and one previous conviction for driving while disqualified.[6] 

18.  Of particular relevance to this case are two sets of convictions.  The first was in March 2015, when the appellant was convicted of a series of offences, including dangerous driving, using a motor vehicle without third party insurance and possession of a dangerous drug for which he was sentenced to attend a Drug Addiction Treatment Centre and disqualified from driving for 12 months and ordered to attend a driving improvement course.  The second was in September 2016, when the appellant was convicted of a series of offences, including dangerous driving, driving while disqualified, using a motor vehicle without third party insurance, possession of a dangerous drug and resisting a police officer, for which he was sentenced to a total term of 22 months’ imprisonment and disqualified from driving for 3 years and ordered to attend a driving improvement course.

19.  The judge considered the submissions in mitigation, and found that the personal background and circumstances under which the appellant committed these offences did not afford the appellant valid mitigating grounds.  The judge then considered the charges individually.

Charge 1: Dangerous driving

20.  In respect of Charge 1, the judge considered that the appellant had engaged in a persistent, aggressive and deliberate course of very bad driving of the most serious type.  She noted the appellant repeatedly disobeyed traffic signs; crossed double white lines; made illegal U-turns; turned right at road junctions, which was not allowed; rushed red lights; collided into two vehicles, resulting in injuries to two persons and damage to the vehicles; drove in the opposite direction to the traffic flow; and rammed his vehicle into a road fence.  She further noted that he committed these traffic offences whilst he was disqualified from driving and without third party insurance.  

21.  The judge adopted a starting point of 2 years and 3 months’ imprisonment.  As the appellant had two similar convictions in March 2015 and September 2016 (for which he was sentenced to 16 months’ imprisonment), she enhanced the sentence by 3 months for the aggravating factor that the appellant was a “persistent offender”.  After reducing the starting point by one third for the appellant’s guilty plea, the judge sentenced him to 20 months’ imprisonment.  The appellant was also ordered to be disqualified from holding or obtaining a driving licence of any kind for a period of 3 years, commencing after the appellant had finished his term of imprisonment, and to attend driving improvement course within 3 months prior to the expiry of the disqualification order.

Charges 2 and 5: Driving while disqualified

22.  In respect of Charge 2, the judge adopted a starting point of 6 months’ imprisonment, which she reduced by one third for the appellant’s guilty plea to 4 months’ imprisonment.  She had noted that the appellant had a similar conviction in September 2016, for which he was sentenced to 2 months’ imprisonment as well as disqualified from driving for 12 months and ordered to attend a driving improvement course.  The sentence was ordered to run concurrently with Charge 1, as the judge had already taken into account the fact that he was driving while disqualified when sentencing him for Charge 1.  The appellant was also disqualified from holding or obtaining a driving licence for a period of 3 years, which was ordered to run consecutively to the disqualification order under Charge 1.

23.  In respect of Charge 5, having noted that it was the appellant’s third conviction for this kind of offence, which occurred 3 weeks after Charges 1 and 2, the judge adopted a starting point of 6 months’ imprisonment which she reduced by one third to 4 months’ imprisonment.  She also disqualified the appellant from driving for a period of 3 years, which she ordered to run concurrently with the period of disqualification under Charge 2.

Charges 3 and 6: Using a motor vehicle without third party insurance

24.  In respect of Charge 3, taking into consideration that the appellant had two similar convictions in March 2015 and September 2016 (for which he was sentenced to 4 months’ imprisonment to run concurrently with the sentences on the dangerous driving and driving while disqualified offences and disqualified from driving for 18 months), and also the driving manner of the appellant at the time of the offence, the judge adopted a starting point of 9 months’ imprisonment, which she reduced by one third to 6 months’ imprisonment.  As the judge had already taken into account that the appellant was driving without third party insurance when imposing the sentence on Charge 1, she ordered the sentence to run concurrently to the sentence on Charge 1.  She also ordered that the appellant be disqualified from holding or obtaining a driving licence of any class for a period of 2 years from the date of conviction.

25.  In respect of Charge 6, the judge took into account that it was the appellant’s fourth conviction for this offence and in similar circumstances to past cases, and adopted a starting point of 6 months’ imprisonment, which she reduced by one third for the appellant’s guilty plea to 4 months’ imprisonment.  She ordered that the sentence run concurrently to the sentence imposed on Charge 5.  She further ordered that the appellant be disqualified from holding or obtaining a driving licence of any class for 2 years, which was to run concurrently with the disqualification order under Charge 3.

Charges 7 and 8: Trafficking in dangerous drugs

26.  In respect of Charge 7, the appellant had conceded that all drugs involved were for trafficking.  Having considered the results of the calculation of the three check tests[7] (absurdity test, conversion test[8] and ratio test) submitted by Mr Lee, the judge adopted a starting point of 3 years and 7 months’ imprisonment, which she enhanced by 2 months for the aggravating factor that “cocktail drugs” were involved (ketamine and cocaine).  Although the appellant had one previous conviction for drug trafficking in 2010, the judge did not enhance the sentence for the fact that he was a repeat offender.  Nor did the judge enhance the sentence for the serious role played by the appellant in committing this offence as an actual (or direct) trafficker.  After reducing the starting point by one third, the judge sentenced the appellant to 2 years and 6 months’ imprisonment.

27.  In respect of Charge 8, the judge accepted that 40% of the total narcotic was for the appellant’s own consumption, primarily on the basis that the appellant’s urine test report supported his contention that he had taken amphetamine at or near the time of his arrest.  It had been submitted that 0.82 gramme of Ice, 1.09 grammes of ketamine in powder form and 1.5 grammes of ketamine narcotic of the total drugs in this charge were for the appellant’s own consumption.  This amounted to 3.41 grammes of drugs which represented 40% of the total weight of the total drugs of 8.54 grammes.  After consideration of the calculation of the three check tests[9] submitted by Mr Lee, the judge adopted a starting point of 52 months’ imprisonment.  The judge enhanced the sentence by 3 months because of the cocktail of drugs involved, which she reduced by one third for the guilty plea to 36 months and 20 days’ imprisonment.  The judge further reduced the sentence by 5 months and 20 days, accepting that the appellant intended a significant proportion of the drugs for his own consumption.  The appellant was sentenced to 31 months’ imprisonment.

Totality of Charges 7 and 8

28.  The judge noted that the appellant on the date of the offence was in possession of a total of 8.38 grammes of ketamine, 5.29 grammes of cocaine and 0.82 grammes of Ice for trafficking.  The judge adopted a starting point of 57 months’ imprisonment, having referred to the calculation results of the absurdity, conversion and ratio tests, were 87.6 months’ imprisonment, 55.8 months’ imprisonment[10] and 57 to 58 months’ imprisonment respectively.  She enhanced the notional starting point by 4 months to 61 months for the aggravating factor that a cocktail of drugs was involved, which she reduced by one third for the appellant’s guilty pleas, to 40 months and 20 days’ imprisonment for Charges 7 and 8. 

29.  The judge further reduced the sentence by 3 months to 37 months and 20 days’ imprisonment for the fact that a portion of the total drugs was for the appellant’s own consumption.

Total sentence of the whole case

30.  The judge after considering the totality principle and the overall culpability of the appellant, sentenced him to 58 months and 30 days’ imprisonment.

31.  To arrive at the final sentence, the judge ordered that 1 month and 10 days of the sentence on Charges 5 and 6 run consecutively to the sentence on Charges 1, 2 and 3, while the rest of the sentence on Charges 5 and 6 run concurrently to the sentence on Charges 1, 2 and 3, making a total sentence for all road traffic offences of 21 months and 10 days’ imprisonment.

The submission on appeal

32.  Mr Lee advanced two arguments in support of his ground of appeal.  First, he submitted the judge failed to consider the two drug trafficking offences arose out of the second set of road traffic offences and this resulted in a total sentence that was manifestly excessive. Secondly, he submitted that the judge should have approached sentencing of the drug trafficking offences in accordance with the principles stated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. 

33.  We should add that throughout his submissions to us, Mr Lee either very ably argued his point or very properly acknowledged his point was not strong.

34.  In advancing the first argument, Mr Lee took a global approach in showing the total sentence was manifestly excessive.  He noted that the appellant was sentenced to a total of 59 months’ imprisonment (4 years and 11 months’ imprisonment) for the 7 charges, which equated to a notional starting point of 7 years and 5 months’ imprisonment.  He accepted that the total sentence of 24 months’ imprisonment for the road traffic offences (Charges 1, 2, 3, 5 and 6) was reasonable, reflecting a notional starting point of 36 months’ imprisonment.  He also did not take issue with the final starting point of 61 months’ imprisonment for the drug trafficking offences, which after a reduction of one third for the guilty pleas, was reduced to 40 months and 20 days’ imprisonment. This sentence was further reduced by the judge to 37 months and 20 days’ imprisonment as an allowance for some of the drugs being for the appellant’s own consumption.  He made no complaint about the starting points adopted by the judge for each offence and for probably good reason because they could have been much higher.

35.  Mr Lee embarked on a comparison with other cases of a completely different kind to essentially argue that the sentences for the road traffic offences should not have been made consecutive to the sentences for the drug trafficking offences.  We were not assisted at all by this comparison as they dealt with an entirely different set of circumstances and offences.  We found no error in the judge’s approach in sentencing on this basis.  She took into account the totality principle when considering the road traffic offences and arrived at an overall sentence of 24 months’ imprisonment. She did the same in relation to the drug trafficking offences and arrived at an overall sentence of 37 months and 20 days’ imprisonment.  She then considered the two sets of offences, bearing in mind the totality principle, and adjusted the total sentence for the road traffic offences to 21 months and 10 days’ imprisonment which she made consecutive to the total sentence on the drug trafficking offences of 37 months and 20 days’ imprisonment.  Through this process she arrived at a final sentence of 58 months and 30 days’ imprisonment.

36.  We were also not assisted by the method of examining the total sentence and working backwards to identify the overall starting point.  The correct approach is to look at each individual offence and determine the appropriate sentence for that offence and then apply the totality principle.

37.  The reference to Herry Jane Yusuph did not assist Mr Lee in his submissions before us.  In fact, it had the opposite effect.  We are of the view that the judge took the correct approach in identifying the individual sentences for each offence and appropriately applied the totality principle in arriving at the final sentence. As we will explain, we were of the view that the sentence was extremely lenient in the overall circumstances of the case.

The granting of leave

38.  Whilst leave was granted on the apparent basis that the judge erred in sentencing the appellant because of the methodology she employed, it was not a strong argument, nor was it likely to change or affect the result in any meaningful way.  We feel we should take the opportunity to emphasise the importance and purpose of the leave procedure.

39.  The primary task of a Single Judge when deciding a leave application to appeal is to determine whether there are reasonably arguable grounds of appeal.  What constitutes a reasonably arguable ground of appeal was succinctly put by Macrae VP in HKSAR v Chua Shirley Maisigla and others, unrep., CACC 254/2018, 11 June 2021, at paragraph 81:

“A ground of appeal is not reasonably arguable simply because it sounds reasonable by virtue of being articulately or plausibly presented. It must have some reasonable chance of success.”

40.  When deciding whether to grant leave to appeal in respect of grounds that are advanced, a key consideration is whether they are “reasonable” in that they “afford some real chance of success”.[11] If the grounds do not afford some real chance of success then it cannot be said that they are reasonably arguable for the purpose of granting leave to appeal.  The requirement for leave to appeal is an important filter to ensure that the Court of Appeal is not unnecessarily burdened with unmeritorious applications, thereby deferring or delaying the Court from dealing with meritorious cases.

The appropriate sentence

41.  We were of the view that the total sentence imposed did not appropriately punish the appellant for the offending involved in this case.  On each occasion he committed a multiplicity of offences.[12] The first incident was extremely serious involving the appellant unlawfully driving a motor vehicle in a dangerous and perilous manner to evade apprehension by a police officer.  It was fortunate this did not result in a far more serious outcome other than the appellant crashing his private vehicle into a road fence and fleeing the scene.  He created mayhem on the roads and caused damage to two vehicles and injury to two occupants of one of the vehicles.[13]  Undeterred by his earlier brush with the law, he defiantly continued to drive a motor vehicle unlawfully but on this occasion to deliver drugs found in his possession only to be then taken to his home where it was quite apparent that he was actively involved in packaging and selling an array of dangerous drugs.  What is particularly disconcerting about this case is that the appellant has a notorious history of committing road traffic and drug offences, and has repeatedly displayed a complete contempt for the law.  This should have been properly reflected in the sentences of the offences for which the appellant has a previous conviction.[14]

42.  The maximum sentence for dangerous driving is a fine at level 4 and imprisonment for 3 years.  As we have already mentioned, this was a very serious offence with a number of aggravating features, including extremely perilous driving, endangering property and human life, and evading lawful arrest.  It was also the second occasion that the appellant had committed such an offence.  We would have adopted a starting point of 30 months’ imprisonment.  The appellant engaged in dangerous driving whilst disqualified from driving and without third party insurance.  The maximum sentence for these two offences is a fine of $10,000 and imprisonment for 12 months.  The appellant had previous convictions for both of these offences.  We would have adopted a starting point of 6 months’ imprisonment for each offence.  After taking into account the one third discount for his guilty pleas, we would have sentenced the appellant to 20 months’ imprisonment on Charge 1 and 4 months’ imprisonment on each of Charges 2 and 3.  We would have made the sentences on Charges 2 and 3 concurrent to each other but consecutive to the sentence on Charge 1, resulting in a total sentence of 24 months’ imprisonment.

43.  As for the road traffic offences in the second incident, we would have adopted a starting point of 9 months’ imprisonment on each of Charges 5 and 6, taking into account the appellant’s previous convictions and offending for the same offences, which we would have reduced by one third for his guilty pleas to 6 months’ imprisonment on each charge.  Applying the totality principle, we would have made the sentences on Charges 5 and 6 concurrent but consecutive to the total sentence of 24 months’ imprisonment on Charges 1, 2 and 3, resulting in a total sentence of 30 months’ imprisonment for the road traffic offences.

44.  As for the drug trafficking offences,[15] we would have adopted a starting point of 42 months’ imprisonment on Charge 7 which we would have enhanced by 3 months for the fact that it was a repeat offence and a further 6 months for the role and culpability of the appellant as a person involved in the packaging and selling of a variety of drugs, which he was in the process of delivering at the time of his apprehension, resulting in a notional starting point of 51 months’ imprisonment.  It was an aggravating feature in this case that the appellant was dealing with more than one type of drug, catering for a far wider market than the trafficker who deals in only one kind of drug.[16]  After a reduction of one third for the appellant’s guilty plea, we would have imposed a sentence of 34 months’ imprisonment. 

45.  We would have adopted a starting point 54 months’ imprisonment on Charge 8, which we would have enhanced by 3 months for the fact that it was a repeat offence and a further 6 months for the role and culpability of the appellant, who was actively involved in the packaging and selling of a variety of drugs to others, resulting in a notional starting point of 63 months’ imprisonment.  After a reduction of one third for the appellant’s guilty plea, the sentence would have been 42 months’ imprisonment, which we would have reduced by a further 6 months for the fact that some of the drugs were for his own consumption, resulting in a sentence of 36 months’ imprisonment.[17] Applying the totality principle to the drug trafficking offences, we would have made 12 months of the sentence on Charge 8 consecutive to the sentence on Charge 7, resulting in a total sentence of 46 months’ imprisonment. 

46.  We would have come close to the same result had we aggregated the quantity of drugs in Charges 7 and 8 and sentenced the total quantity of drugs according to the combined approach, because of the application of the totality principle.[18] We would have adopted a starting point of 60 months’ imprisonment[19] which we would have enhanced by 3 months for the fact that it was a repeat offence, and a further 6 months for the variety of drugs involved and the role and culpability of the appellant.  This would address not only the elaborate drug trafficking operations that were present at his home as disclosed under Charge 8, but that he was also outside making a delivery of the drugs which were concealed on his person as disclosed under Charge 7.  Even accepting, as submitted by the appellant, that some of the drugs were for his own consumption, given the amount involved set against the gravity of the offending in these two offences, any discount, if at all, in the exercise of the sentencing court’s discretion would be small.  Nonetheless, on the basis that a discount of 3 months is given to the appellant, the notional starting point of 69 months’ imprisonment would be reduced by one third for the appellant’s pleas of guilty, resulting in 44 months’ imprisonment. 

47.  Applying the totality principle to the drug trafficking offences and road traffic offences, we would have made 24 months of the sentences on the road traffic offences consecutive to the drug trafficking offences, resulting in a total sentence of 68 months’ imprisonment (5 years and 8 months’ imprisonment).  We have borne in mind that in respect of the offences of dangerous driving, driving while disqualified and trafficking in dangerous drugs we have appropriately enhanced the sentence in recognition that the applicant was a repeat offender in respect of each offence, which we took into account when considering the totality of the enhancements and the totality of the sentences.[20]

48.  Whilst the conduct in question is made up of a number of individual offences, it is important not to lose sight of the overall criminality involved.  Not only was the offending involved of the most serious kind, but the appellant’s blatant defiance and disrespect for the law was clearly evident from his present and past offences.  The ultimate objective when sentencing an offender is to arrive at a fair and just sentence that properly reflects the culpability of his conduct and circumstances.  We had no hesitation in rejecting the submissions that the sentence was manifestly excessive for in our view the gravity of the offences and the role and culpability of the appellant would have warranted the imposition of a much more severe sentence.  The appeal was dismissed.

[1] Appeal Bundle (AB), 1-4.

[2] [2021] HKCA 159, CACC 75/2020, 10 February 2021 per M Poon J (as she then was).

[3] AB, 9-15.

[4] AB, 54-73, Skeleton Submissions for Mitigation.

[5] AB, 16-23.

[6] AB, 75-80.

[7] See HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, at [27].

[8] The conversion test used cocaine as the base.

[9] The conversion test used ketamine as the base.

[10] For the conversion test, the judge used ketamine as the base but had she used cocaine it would have been 64 months’ imprisonment.

[11] See Practice Direction 4.2, at [5]. 

[12] HKSAR v Mohammed Tofael Ahmed, unrep., CACC 306/2018, 3 January 2020, at [18]-[23].

[13] HKSAR v Chan Chi Man (No 2) [2019] 2 HKLRD 737, at [12], [15] and [18].

[14] HKSAR v So Yat Ting [2021] 1 HKLRD 1215, at [48] and [49].

[15] HKSAR v Wan Lau Mei [2014] 4 HKC 75, at [27] and [29]. 

[16] HKSAR v Islam Azharul [2020] 1 HKLRD 644, at [15].

[17] HKSAR v Choi Chun Wo [2018] 5 HKLRD 717, at [29].

[18] HKSAR v Mohammed Tofael Ahmed, at [16]-[23].

[19] We would have calculated the conversion test using cocaine as the base, resulting in 64 months’ imprisonment.  Assessing this figure with the ratio test of 57 to 58 months’ imprisonment, we would adopt a starting point of 60 months’ imprisonment.

[20] See HKSAR v So Yau Ting, at [49].