HKSAR v. HO CHAK MING

CACC316/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 316 OF 2009

(ON APPEAL FROM HCCC 67 OF 2009)

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BETWEEN

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JUDGMENT

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Lunn J (giving the Judgment of the Court) :

1.  The applicant applies for leave to appeal sentences imposed upon him on his pleas of guilty on 18 September 2009 on arraignment before Deputy High Court Judge Geiser and the Court of First Instance on an indictment containing six counts.

THE COUNTS ON THE INDICTMENT

2.  Counts 1 to 4 of the indictment alleged unlawfully trafficking in dangerous drugs on 27 July 2008, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, by the applicant in a hotel room in the Metro Park Hotel on Waterloo Road in Kowloon.  The rationale of the distinction between the various counts appears to have been the location within the hotel room at which the dangerous drugs were found.  Thus, Count 1 was concerned with 357.61 grammes of methamphetamine hydrochloride and a single tablet containing fragments of nimetazepam found inside a safe in the room.  Count 2 was concerned with 48.89 grammes of methamphetamine hydrochloride and 6.18 grammes of herbal cannabis found on a desk in the room.  Count 3 was concerned with a variety of dangerous drugs found inside a drawer of that desk, in particular 11.26 grammes of ketamine, 3.88 grammes of methamphetamine hydrochloride, 0.77 gramme of cocaine found in both powder and solid form, and one tablet containing 0.1 grammes of 3, 4-methylenedioxymethamphetamine and three tablets containing 0.01 gramme of nimetazepam.  Finally, Count 4 was concerned with dangerous drugs found openly on a round table in the room, namely 0.12 gramme of methamphetamine hydrochloride together with the apparatus for its consumption, namely several hookahs and tinfoil.  Counts 5 and 6 alleged that, on 23 and 27 July 2008, the applicant had used a forged Hong Kong identity card bearing the name Cheung Wai Hung (“Cheung”) contrary to section 7(A)1 of the Registration of Persons Ordinance, Cap. 177.

THE FACTS

3.  At about 10:00 p.m. on the evening of 27 July 2008, a team of police officers arrested a man after he had emerged from the room in the Metro Park Hotel occupied by the applicant.  He was found to be in possession of $60,000 in cash.  Shortly afterwards the police officers gained entrance to the room by force.  The applicant, another man and two females were present in the room.  In response to enquiries, the applicant admitted that he had rented the room.  He produced the identity card in the name of Cheung, which identity card had been used by the applicant to rent the room on 23 July 2008.

4.  In interviews under caution conducted of the applicant after his arrest, he admitted that the identity card in the name of Cheung was one that he had bought and used to check into the hotel some days earlier.  He had done so because he knew that he was wanted by the courts in Hong Kong.  A warrant for the arrest of the applicant had been issued by a magistrate in May 2008.  The identity card was found to be the product to an ink-jet printer and was devoid of security features. 

5.  The applicant claimed that all the dangerous drugs in the room had been delivered to him by the man who had been arrested by the police officers, after he had emerged from the applicant’s hotel room.  That man had delivered 16 ounces of “ice” to him earlier that evening.  He had paid him $60,000 in cash and still owed him $100,000.  He intended to sell the drugs to others, having done so on previous occasions in Mong Kok and Tsim Sha Tsui.  From the monies he received, he intended to repay the $100,000 that he owed to the seller and retained some profit for himself.  The total retail value of the dangerous drugs was $300,000. 

REASONS FOR SENTENCE

6.  In his reasons for sentence, the judge stated that in his judgment the only mitigation of substance advanced before him was the fact of the applicant’s pleas of guilty, for which he reduced the starting points that he stipulated for sentence by one third.  For Count 1, he indicated that he took a starting point of 15 years’ imprisonment, which he reduced to 10 years’ imprisonment.  For Count 2, the judge took a starting point of 8½ years’ imprisonment, which he reduced to 5 years and 8 months’ imprisonment.  He ordered 18 months of that sentence to run consecutively to the term of 10 years’ imprisonment imposed in respect of Count 1.  For Count 3, the judge took a starting point of 4½ years’ imprisonment, which he reduced to 3 years’ imprisonment, which sentence he ordered to run concurrently with that imposed in respect of Count 1.  For Count 4 the judge took a starting point of 3 years’ imprisonment, which he reduced to 2 years’ imprisonment, which sentence he order to run concurrently with that imposed in respect of Count 1.

7.  For Counts 5 and 6, the judge stated that he arrived at sentence, namely 15 months’ imprisonment, having taken into account the discount for the applicant’s pleas of guilty.  Noting that the offences were of a different nature to that alleged in Counts 1 to 4, the judge ordered that those two sentences be served concurrently with one another but consecutively to the sentence imposed in respect of Count 1.

8.  The total sentence of imprisonment imposed upon the applicant was 12 years and 9 months.  

GROUNDS OF APPEAL AGAINST SENTENCE

9.  On behalf of the applicant, Mr Boyton advanced two grounds of appeal against sentence.  Firstly, he submitted that the total sentence of imprisonment imposed in respect of Counts 1 to 4, namely 11½ years’ imprisonment, was manifestly excessive.  Having afforded the applicant a discount of one third from the various levels of starting point stipulated for sentence, the judge was to be regarded as having taken an overall starting point for the offences of unlawfully trafficking in dangerous drugs of 17 years and 3 months’ imprisonment.  Secondly, it was submitted the starting point to be inferred from the sentences of 15 months’ imprisonment imposed in respect of Counts 5 and 6, namely 22½ months’ imprisonment, was manifestly excessive.  That level of sentence was appropriate for the commission of that offence by an illegal immigrant, not a resident of Hong Kong.

Ground 1

10.  Mr Boyton made it clear that no objection was taken to the starting point for sentence that the judge had stipulated in respect of the four counts of unlawfully trafficking in dangerous drugs.  Objection was taken to the totality of sentence imposed in respect of those four counts.  He submitted that the correct approach to sentencing the applicant was the “combined” approach, which approach was described in the judgment of this court in HKSAR v Yip Wai Yin (unreported; CACC80/2003, 7 July 2004), differently constituted as being the approach that :

“… will often be the correct one to enable the judge to sentence fairly, realistically and in a commonsense manner.”

11.  The court noted that in this approach regard is had to the overall quantity of drugs, rather than to individual parcels.  Of the methodology of that approach, Ma CJHC said it was necessary :

“… first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs…”

12.  Having regarded to that approach, Mr Boyton identified the total quantities of dangerous drugs described in the four counts as being :

(i)      410.5 grammes of “ice”;

(ii)     11.26 grammes of ketamine;

(iii)    0.77 gramme of cocaine; and

(iv)    6.18 grammes of herbal cannabis.

Mr Boyton submitted that an appropriate starting point for unlawfully trafficking 410.5 grammes of “ice” was “roughly 15 years’ imprisonment”. 

13.  However, Mr Boyton did accept that in the judgment of this court in HKSAR v Cheung Po Cho, Tommy (unreported; CACC233/2005, 19 October 2005), unlawfully trafficking in more than one kind of dangerous drugs was described as itself “an aggravating factor”.  He submitted that the appropriate level of enhancement to reflect unlawfully trafficking in the ketamine was around 12 months’ imprisonment.

Ground 2

14.  In support of his submission that the judge erred in imposing sentences of 15 months’ imprisonment after plea of guilty in respect of Counts 5 and 6, Mr Boyton said in his written submission that he relied on the judgment of this court in HKSAR v Li Chang Li[2005] HKLRD 864.  In his written submissions he submitted that the judgment was authority for the proposition that a proper starting point in respect of Counts 5 and 6 was 18 months’ imprisonment.

15.  Finally, Mr Boyton submitted that the judge had erred in ordering the whole of the sentences imposed upon Counts 5 and 6, albeit ordered to be served concurrently with one another, be served consecutively to the sentence of 10 years’ imprisonment imposed in respect of Count 1.  Noting that the judge had described them as being of a “different nature”, Mr Boyton submitted that they aware the fact closely connected with the offences of unlawfully trafficking in dangerous drugs. 

SUBMISSIONS ON BEHALF OF THE RESPONDENT

Ground 1

16.  On behalf of the respondent, Ms Olivia Tsang submitted that the sentences imposed by the judge on the unlawfully trafficking in dangerous drugs counts were not manifestly excessive.  On the “combined” approach to sentence in respect of Counts 1 to 4, and taking the “ice” as the most serious of the various drugs in which the applicant unlawfully trafficked, she submitted that the appropriate sentence in respect of unlawfully trafficking in 410.15 grammes of “ice” was 15 years and 6 months’ imprisonment.  On the guidelines laid down by this Court in SJ v Hii Siew Cheng[2009] 1 HKLRD 1, the 11.26 grammes of ketamine in which the applicant unlawfully trafficked in Count 2 attracted a starting point for sentence of 4 years’ imprisonment.  Unlawfully trafficking in a significant quantity of a second dangerous drugs was an aggravating factor to which the judge was entitled to have regard. 

Ground 2

17.  Helpfully the parties have provided the court with a translation of the judgment in HKSAR v Li Chang.  Ms Tsang submitted that, based on the approach to the two sentences identified in that judgment, the sentences of 15 months’ imprisonment for Counts 5 and 6 could not be criticised, given that the applicant had used the forged identity card to enable and to conceal his identity, he being a wanted man, in order to traffick unlawfully in the dangerous drugs.  Finally, she submitted that, having regard to the nature of the offences and the totality of sentence the judge was entitled to order the sentences of 15 months’ imprisonment imposed in respect of Counts 5 and 6 be served consecutively to Count 1.

A CONSIDERATION OF THE SUBMISSIONS

18.  In our view an unnecessary complication to the process of sentencing the applicant arose by the surprising decision to encompass the unlawfully trafficking by the applicant in his hotel room on one occasion in the late evening of 27 July 2008 in four separate counts.  Although the applicant had been found in the room together with three other persons, the counts on the indictment were laid against the applicant alone.

19.  The judge was informed that the applicant was born in Hong Kong on 11 November 1954.  He had four convictions for possession of dangerous drugs, one conviction for using an identity card relating to another person and two convictions for unlawfully trafficking in dangerous drugs.  In November 2005, after a warrant had been executed, he was sentenced to 18 months’ imprisonment for unlawfully trafficking in dangerous drugs.  Following his arrest for the current offences he was sentenced in March 2009 to 7 months’ imprisonment for another offence of unlawfully trafficking in dangerous drugs. 

20.  As he was required to do, the judge approached the task of sentencing the applicant in respect of Counts 1 to 4 by identifying an appropriate starting point in respect of each separate count and, after discounting those starting points by one third, imposing the appropriate sentence.  Although he ordered 18 months of the sentence of 5 years and 8 months’ imprisonment imposed in respect of Count 2 to be served consecutively to the sentence of 10 years’ imprisonment imposed in respect of Count 1, the judge did not articulate his reasons for so doing, nor for ordering that the sentences of imprisonment imposed in respect of Counts 3 and 4 be served concurrently with the sentence imposed in respect of Count 1.  

21.  The nub of the grievance articulated on behalf of the applicant is, in effect, that he was sentenced, after pleading guilty, to a total of 11½ years’ imprisonment in respect of Counts 1 and 2 for unlawfully trafficking in 410.5 grammes of “ice”. 

22.  In our judgment, the appropriate approach to sentencing in this case of unlawfully trafficking in multiple dangerous drugs was the “combined” approach identified in Yip Wai Yin.  Clearly, the largest quantity of the most serious drug was 410.5 grammes of “ice”.  A starting point for sentence for 15 years’ imprisonment, or slightly more, in respect of the unlawfully trafficking of the “ice” would have been appropriate.  That starting point fell to be enhanced in order to reflect the multiple drug cocktail in which the applicant was unlawfully trafficking, in particular the 11.26 grammes of ketamine. 

23.  As Mr Boyton has acknowledged, no complaint could have been made if the judge had enhanced the sentences of imprisonment imposed in respect of the significant quantities of “ice”, particularised in Counts 1 and 2, to reflect the unlawful trafficking in the ketamine by ordering that part of the sentence imposed in respect of Count 3 be ordered to be served consecutively to the 10 years’ imprisonment imposed in respect of Count 1.  Of course, in identifying appropriate level of enhancement regard was required to be had to the fact that the sentence of imprisonment to be imposed in respect of the “ice” were themselves already very substantial.

Ground 2

24.  In Li Chang Li, an appeal against sentence was referred to the Court of Appeal by the Court of First Instance.  The appellant, a resident of the mainland and lawful visitor to Hong Kong, pleaded guilty to possession of a forged Hong Kong identity card.  The magistrate imposed a sentence of 12 months’ imprisonment.  At issue, was the appropriate sentence to be imposed upon a person lawfully in Hong Kong but possessed of a forged identity card contrary to section 7A(1) of the Registration of Persons Ordinance.  In approving of the sentence imposed by the magistrate in the judgment of this court Yeung JA said :

“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.

41.     If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”

This Court was there approving the imposition of those sentences after pleas of guilty for which a discount of one third had already been applied. 

25.  Clearly, the applicant’s use of the forged identity card, firstly to check into the hotel, and secondly in presenting it to the police on arrest was “in order to conceal his identity”.  However, the focus of the concerns expressed in Li Chang Li have their basis in matters of immigration policy, illegal employment and like matters.  In the instance case, the use of the forged identity card by the applicant when he checked into the hotel was to avoid risk of detection by the police for his earlier unlawfully trafficking in dangerous drugs and thereby to enable him to commit the very serious offences of which he is convicted.  Further, in producing it to the police he did so to different persons several days apart.  We are satisfied that the sentence of 15 months’ imprisonment imposed in respect of Counts 5 and 6 are entirely appropriate.  

26.  The conduct the subject of Counts 5 and 6 was entirely different from the conduct subject of Counts 1 to 2 and the judge was entitled to order those sentences to be served concurrently one with the other but consecutively to the sentence imposed in Count 1.

CONCLUSION

27.  In the result, we allow the applicant’s application for leave to appeal against sentence and treat the hearing of the application as the hearing of the appeal.  We allow the appeal in respect of Count 2 and quash the order that 18 months of the sentence of imprisonment imposed in respect of Count 2 be served consecutively with the term of the imprisonment imposed in respect of Count 1.  However, we order that 12 months of the sentence of imprisonment imposed in respect of Count 3 be served consecutively with the term of imprisonment imposed in respect of Count 1.  Accordingly, the overall term of imprisonment imposed on the appellant is 12 years and 3 months.