HKSAR v. CHAN KANG YIU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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Stuart-Moore, J.A. (giving the judgment of the Court):

Application on Conviction

1. On 15^th December 1997, this Applicant was convicted in the District Court of trafficking in a mixture weighing 55.84 grammes containing almost 40 grammes of heroin hydrochloride. He pleaded guilty from the outset to a second charge which alleged resisting arrest, contrary to section 63 of the Police Force Ordinance, Cap. 232.

2. Deputy Judge Wright imposed sentences of seven years' imprisonment on the first charge and 14 days to run concurrently on the second. In addition, a suspended sentence of two years' imprisonment was activated consecutively, making nine years in all.

3. The Applicant now seeks leave to appeal against conviction on the first charge and the overall sentence of nine years' imprisonment.

4. The Applicant admitted at his trial that he was in possession of the heroin. It was his defence that the drugs were for his own consumption. The prosecution's case was that he was observed in the street handing an item to an unknown male, who then passed to him a quantity of banknotes. The unknown male was then driven away in a taxi. The Applicant was stopped and searched. In his shirt pocket, police found $2,000 and in a sock they found the two packets of heroin, which are the subject of charge 1. He said that the money had been repaid by someone who owed it to him. There then followed a struggle reflected in charge 2.

5. Later at the police station, the Applicant was again searched. In his rear trouser pocket, police found a further $23,640. He was interviewed and explained that this larger sum of money had been won by him at mahjong. He also said that he had paid $9,600 for the drugs in his possession.

6. In his written grounds of application, the Applicant makes four points. Firstly, he says, that in relation to the incident involving the unknown man being taken away from the scene in a taxi, that the judge did not look "squarely" at this because that section of road was "none other than a traffic prohibited area prohibiting all vehicles from stopping to pick up or drop off passengers".

7. Looking at the Reasons for Verdict, it is clear that there is no substance in this point. The judge said, when dealing with the Applicant's version of events concerned with the alleged encounter in the street with the unknown male:

"He had had no exchange with another male at all and there was no money in his shirt pocket: there could not have been an incident involving a taxi departing the scene as that was an area where stopping was prohibited, it following that no other male could have boarded a taxi there."

And a little later, the judge went on to say:

"As to the taxi - none of the police officers was sure whether or not the area was a restricted one: the Defendant says it was but, for reasons which will emerge, I do not accept his evidence. In any event, it would not be outside the realm of experience of this court for taxi drivers and other motorists not always to obey restrictions."

8. The Applicant's second and third grounds of appeal are as follows:

9. Once again, referring to the Reasons for Verdict, the judge had this to say about the taxi not being stopped by the police:

"PW3 provided the answer as to why the taxi had not been stopped - it had pulled away rapidly. It is correct that the taxi would have had to have passed them but the tenor of the evidence of the three police officers is that they were more concerned about apprehending the Defendant than stopping the taxi. I find this understandable in the circumstances."

10. It is apparent from this extract that the judge did have this point in mind. It had been raised at the trial as a factor that might discredit the police witnesses. There is nothing that can be demonstrated to be biased against the Applicant in the way in which the judge has dealt with the matter. He had drawn a perfectly proper inference on the evidence which had been given.

11. In his fourth ground of appeal, the Applicant complains that his lawyer had submitted his criminal record to the judge which was unfair, and which must have affected the outcome of the trial. Again, there is no substance to this argument. The relevance of the record does emerge in a short passage of the Reasons for Verdict where the judge said in the appeal bundle at page 6:

"The Defendant explains, firstly, that it is cheaper for him to purchase in larger quantities and, secondly, that it lessens his exposure to being apprehended by reducing the number of times which he has to go on the street to make a purchase. I doubt there is a court in Hong Kong that has not heard similar explanations with great regularity: no doubt there is truth in both assertions. The Defendant emphasises the latter consideration in his case as, at the time of the offence, he was subjected to a suspended sentence."

12. The record was, as often happens, being used to an extent to support the version given by the person on trial as a demonstration of why it might be that he would act in a certain way.

13. There is, so far as the conviction is concerned, no merit to the application and it must be dismissed.

APPLICATION ON SENTENCE

14. Turning now to the application so far as it concerns sentence, the Applicant came before the court having had 28 previous court appearances resulting in convictions for 41 offences. The vast majority are drug-related and the last of these, which was for possession of drugs, resulted in the Applicant receiving on 5^th October 1995 a sentence of two years' imprisonment suspended for three years. The present offence of trafficking was committed on 20^th July 1997, so that the Applicant was in breach of the suspended sentence and liable to be dealt with under section 109C of the Criminal Procedure Ordinance, Cap. 221.

15. In the present case, the trial judge considered the guidelines provided in R v Lau Tak-ming, (1990) 2 HKLR 370, and took seven years as the appropriate level of sentence for the offence.

16. The Applicant, in his grounds of appeal, complains that it was wrong for the judge to have imposed the maximum penalty of seven years' imprisonment, for a case tried in the District Court, when he had admitted from the outset that he had possession of the drugs.

17. We cannot find any substance to this ground. The sentence of seven years' imprisonment was appropriate.

18. The judge then turned to the question of whether or not he should activate the suspended sentence. In doing so, he expressed the view in his Reasons for Sentence that only in exceptional circumstances should a suspended sentence not be brought into operation. He considered that there were no such circumstances which existed. He then considered the totality of the sentence and, recognizing that nine years would be regarded as a robust sentence, came to the conclusion that it would not be excessive. He then activated the suspended sentence which he ordered to run consecutively, making a total of nine years' imprisonment.

19. Whilst the Applicant has not appealed on the basis that the suspended sentence was made consecutive, we were at first concerned that the powers of a judge sitting in the District Court may have been exceeded by the activation of the two years' suspended sentence in addition to seven years for the present offence.

20. We are grateful to Mr. Saw, S.C., for the Respondent, for having drawn our attention to the consolidated Magistracy appeals in R v Pau Chi-keung & Another, (1987) HKLR 1148, in which suspended sentences of imprisonment were activated with the result that the maximum three years' aggregate limit on the magistrate's power to order imprisonment had been apparently exceeded. The Court of Appeal held that the aggregate limit in section 57 of the Magistrates Ordinance, Cap. 227, was confined to terms of imprisonment "imposed" by the magistrate. It did not apply to the activation of suspended sentences under section 109C of the Criminal Procedure Ordinance, Cap. 221. Where a court acted under that section, it was "not imposing a sentence of imprisonment, but directing a sentence imposed in the past to take effect".

21. Section 57 of the Magistrates Ordinance is in similar terms to section 82 of the District Court Ordinance, Cap. 336, which reads, so far as it is relevant:

          "82. Penalties

22. We are satisfied that the suspended sentence was imposed by the court that made the order. The learned Deputy Judge was simply activating that sentence by directing that it should take effect. We are fortified in that view, by analogy with Pau Chi-keung's case.The maximum limit of seven years' imprisonment which can be passed in the District Court does not affect the court's power to activate a suspended sentence, albeit the totality may then exceed seven years. Indeed, it would in our view be extraordinary if the limitation in section 82 did have any effect. If the court which had imposed the suspended sentence had instead made this an immediate term of imprisonment, the judge in the District Court would have had power under section 82(1) to direct that the seven year sentence should commence at the expiration of the term the Applicant had previously been sentenced to undergo. The legislation cannot have been intended to leave someone with a suspended sentence hanging over him to be in a more advantageous position than the person who is already serving his sentence.

23. Section 109C of the Criminal Procedure Ordinance reads:

"(1) If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if, during such period, he breaks a condition imposed under section 109B(3)(a) and either he is so convicted by or before a court having power under section 109D to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods -

24. The judge had fully considered all of the circumstances of this case and was, for the reasons we have given, entitled to activate the suspended sentence consecutively to the sentence of seven years' imprisonment. We have found no reason to interfere with the order that he has made. Accordingly, there is no merit in the application regarding sentence, and it must also be dismissed.