HKSAR v. POON CHI KEUNG

CACC 105 & 107/2024, [2026] HKCA 1006

On Appeal From [2024] HKCFI 1504 & [2024] HKCFI 1502

(Heard together)

CACC 105/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2024

(ON APPEAL FROM HCCC NO 282 OF 2023)

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AND

CACC 107/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 107 OF 2024

(ON APPEAL FROM HCCC NO 339 OF 2023)

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BETWEEN

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(Heard together)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  These two appeals have been heard together in view of the common legal issue involved.

2.  Both appellants pleaded guilty before a magistrate to two offences, namely trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Trafficking Charge”[1]) and driving a motor vehicle with any concentration of a specified illicit drug, contrary to section 39K(1) of the Road Traffic Ordinance, Cap 374 (“the Drug Driving Charge”[2]). They each confirmed their pleas in the High Court before Andrew Chan J (“the judge”) respectively.

3.  In the case of Poon Chi Keung (“Poon”), the appellant in CACC 105/2024, the judge used 9 years’ and 18 months’ imprisonment as the respective starting points for the Trafficking Charge and the Drug Driving Charge. After giving him a one-third discount for his pleas, the judge ordered the sentences to run wholly consecutively with each other, thereby resulting in an overall term of 7 years’ imprisonment.

4.  In the case of Chan Pui Ming (“Chan”), the appellant in CACC 107/2024, the judge used 9½ years’ and 2 years’ imprisonment as the respective starting points for the Trafficking Charge and Drug Driving Charge. After a one-third discount for his pleas, the judge again ordered the sentences to run wholly consecutively with each other, thereby resulting in an overall term of 7 years and 8 months’ imprisonment.

5.  Pursuant to leave granted by Macrae VP on 3 April 2025 (in the case of Poon), and on 30 May 2025 (in the case of Chan), the appellants have appealed against their sentences only. In both appeals, no criticism is levelled against the individual starting points for the Trafficking Charge. Instead, the sole complaint is against the starting point in respect of the Drug Driving Charge and/or the order that the resulting sentence run wholly consecutively to that of the Trafficking Charge. In the case of Chan only, there is an additional complaint against the consequential driving disqualification order of 5 years, as well as the re-test order as to his competence to drive.

The facts in Poon’s case (CACC 105/2024)

6.  On 8 March 2021, at 11:50 pm, a police officer PC 9328, who was patrolling on his police motorcycle at the junction of Hoi Yuen Road and How Ming Street in Kwun Tong, Kowloon, had reason to intercept and stop Poon as he was driving a private car bearing registration number VE 1665 (“VE 1665”).

7.  While he was conducting enquiries with Poon, PC 9328 noticed that Poon looked unfocused. A rapid oral fluid test was therefore conducted on him, which yielded a positive result (0.18 µg/mL) for methamphetamine.

8.  A subsequent search of VE 1665 revealed, amongst other things, the subject matter of the Trafficking Charge, namely a total of 41.17 grammes of a crystalline solid containing 40.97 grammes of methamphetamine hydrochloride (commonly known as “Ice”), which was contained in three separate plastic bags found in the central console box between the driver’s seat and the front passenger seat.

The facts in Chan’s case (CACC 107/2024)

9.  On 2 March 2021, at 11:37 pm, whilst on mobile patrol along the Yuen Long Highway, police officers spotted a private car bearing registration number NN 5039 (“NN 5039”) travelling in the middle lane without a functioning rear light. The officers therefore turned on the police vehicle’s siren and flashing lights and directed the driver of NN 5039 to drive to the hard shoulder of the road. However, NN 5039 continued to travel forward. The police therefore followed from behind.

10.  At 11:45 pm, upon reaching Tat Fuk Road in Tuen Mun, New Territories, NN 5039 stopped near lamp post FB1433 of Tat Fuk Road, whereupon they approached NN 5039. They saw the driver, who was Chan, throw an item out from the offside front window onto the ground and appear to be nervous.

11.  Upon searching NN 5039, the police found, amongst other things, the subject matter of the Trafficking Charge, namely a total of 117.3 grammes of a solid containing 109 grammes of cocaine, which was contained in six transparent plastic bags found beneath the plastic cover under the handbrake.

12.  The police conducted a rapid oral fluid test on Chan, which showed a positive reaction for both ketamine and cocaine.

Sentencing

13.  Poon was 38 years of age at the time of sentence. He had worked as a delivery assistant and had had seven previous court appearances involving 9 convictions, including a charge of trafficking in dangerous drugs, for which he was sentenced in the District Court on 29 August 2011 to 40 months’ imprisonment; a charge of possession in dangerous drugs, for which he was sentenced in a magistrate’s court on 12 September 2016 to a Drug Addiction Treatment Centre order; and another charge of possession in dangerous drugs, for which he was sentenced in a magistrate’s court on 23 June 2021 to 4 months’ imprisonment. It was submitted in mitigation that, as a habitual user of “Ice” since the age of 25, he would take 0.5 to 0.6 grammes of the drug per day, which he would divide into three portions for ingestion after each meal[3]. He had already had dinner as well as his regular intake of “Ice” before driving to Kwun Tong to buy the dangerous drugs in question, two-thirds of which were said to be purchased for his friend, and one-third (or 14 grammes) for himself[4].

14.  Chan was 29 years of age at the time of sentence. He had worked as a chef and had had four previous court appearances involving 7 criminal convictions, including a charge of resisting a police officer, for which he was sentenced by a magistrate on 5 May 2016 to 4 weeks’ imprisonment; a charge of dangerous driving and a charge of assaulting a police officer, for which he was sentenced in the District Court on 5 August 2016 to a total of 21 months’ imprisonment and disqualified from driving for 2 years; a charge of possession of dangerous drugs, a charge of driving whilst disqualified and a charge of using a motor vehicle without third party insurance, for which he was sentenced in a magistrate’s court on 22 November 2018 to a Drug Addiction Treatment Centre order and disqualified from driving for 2 years.

15.  In view of the quantity of dangerous drugs in which each appellant was found to be trafficking in their private vehicles, the respective starting point for the Trafficking Charge each faced was 9 years’ imprisonment (for Poon) and 9½ years’ imprisonment (for Chan).

16.  In sentencing Poon for the Drug Driving Charge and arriving at the total sentence, the judge said:

“In relation to the 2^nd count, the maximum sentence on that item is one of 3 years’ imprisonment. The ‘Ice’ level in the blood is 0.18 microgrammes per millilitres, twice the amount in the case of Chan Hon Hoi in which the Court of Appeal stated the mischief and the seriousness of the offence in question.

In terms of toxicity, I am sure the toxicity of ‘Ice’ exceeds the toxicity of ketamine. In the Chan Hon Hoi case, the defendant in that case was found to have 0.07 microgrammes per millilitre of ketamine in his blood. The defendant in this case of course did not cause any traffic accident. No pedestrian or other road users were injured. He was also not driving erratically at the time. He was however noted to be unfocused on questioning by the police officers.

In view of all that, a starting point of 18 months would be adopted as the notional starting point. Given the defendant’s plea, the sentence is again reduced to one of 12 months.

The two offences are two separate and distinguishable offences and bear no relationship to each other. As such, the 12 months imposed on the 2^nd count is ordered to run consecutively to the sentence imposed on Count 1. For the two offences that the defendant stands convicted, he is therefore sentenced to a total of 7 years’ imprisonment. The defendant is further ordered to be disqualified from obtaining a driving licence for a period of 2 years.”

17.  In the case of Chan, the judge said:

“Insofar as the 1^st count is concerned, the maximum sentence is one of 3 years’ imprisonment. In the Secretary for Justice v Chan Hon Hoi [2011] 1 HKLRD 808, the Court of Appeal explained the mischief and the seriousness of the offence behind and I am not going to recite or repeat in length of that judgment. In that case, the taxi driver was given a 2½ years’ imprisonment for having 0.07 microgram/mL of ketamine in his blood when he was on bail for the same offence.

As pointed out by Mr Lee, the defendant in this case did not cause any accident nor did he drive in any erratic manner. However, in the present case, the defendant had consumed two different types of dangerous drugs, and the ketamine blood level was almost twice the amount in Chan Hon Hoi.

Further, the defendant has a very bad traffic record. He was disqualified twice in 2016 and 2018. On each occasion, he was disqualified for 2 years. It seemed traffic rules and regulations simply did not apply to him. As such, a starting point of 2 years will be adopted. Given the defendant’s plea, the sentence is therefore reduced to one of 16 months’ imprisonment.

Since the two counts have no direct relation to each other, the sentence imposed on Count 1 is ordered to run consecutively to the sentence imposed on Count 2. For the two offences the defendant stands convicted, he is therefore sentenced to 7 years and 8 months’ imprisonment.

In addition, the defendant will be disqualified for driving for all classes for 5 years. Such period should not start to run until he finishes serving the present terms of sentence. It is further ordered that the defendant should not drive again after the disqualification period until he passes a test of competence to drive under the Road Traffic Ordinance. In short, you are disqualified for 5 years after you complete your sentence, and then if you wish to drive again, you have to do a retest.”

Grounds of appeal

18.  Mr Yu, now representing Poon in CACC 105/2024, has advanced one ground of appeal, on which leave has been granted, namely that the judge erred in ordering the sentences for the two offences to run wholly consecutively with each other.  

19.  Mr Lee, now appearing on behalf of Chan in CACC 107/2024, has put forward three grounds of appeal, for which only the first was granted leave, the other two are renewed grounds of appeal:

(i)  Ground 1: The judge failed to apply the totality principle in arriving at the overall sentence, which was manifestly excessive and/or wrong in principle.

(ii)  Ground 2: The 5-year disqualification period was manifestly excessive and/or wrong in principle.

(iii)  Ground 3: The re-test order was manifestly excessive and/or wrong in principle, and was made without inviting submissions from the appellant, which was a material irregularity in the conduct of the trial.

The appellants’ submissions

20.  Both Mr Yu and Mr Lee have argued that the judge failed to apply the totality principle and order partly consecutive and partly concurrent sentences, instead of wholly consecutive sentences, notwithstanding that there was a degree of linkage between the two offences, which arose in the course of trafficking in the dangerous drugs in question.

21.  It was submitted, on Poon’s behalf, that this was the first time he had been convicted of an offence under section 39K of Road Traffic Ordinance. Mr Yu pointed out that Section 39K(3) provides that the disqualification order should be a period of not less than 2 years for a first conviction and not less than 5 years for a subsequent conviction. There was no cogent reason why he should have been disqualified for a period equivalent to the minimum period applicable to a subsequent conviction, or a 250% increase of the minimum period applicable to a first conviction.

22.  Mr Lee, on Chan’s behalf, complained that the 5-year disqualification period was an overwhelming sentence for the appellant and the appropriate length should have been 2 to 3 years’ disqualification. He submitted that it was not mandatory to make a re-test order under section 39K of the Road Traffic Ordinance, which should only be made in a suitable case. He argued that there was nothing to suggest that Chan had poor driving skills or that his driving competence was in doubt. Moreover, the judge did not invite submissions before making the re-test order and failed to provide any reasons for making such an order. Accordingly, the re-test order should be set aside.

The respondent’s submissions

23.  Mr Chu and Ms Kwok respectively represented the respondent in CACC 105/2024 (the case of Poon) and CACC 107/2024 (the case of Chan). The respondent pointed out that drug driving is proscribed under sections 39K, 39J and 39J of the Road Traffic Ordinance, and is a serious offence for which there should be “zero-tolerance”. It attracted a maximum fine of $25,000 and up to 3 years’ imprisonment upon conviction on indictment, although there was no established sentencing guideline for the offences.

24.  In the case of Poon, the respondent argued that, since he had irresponsibly consumed dangerous drugs before embarking on what was a relatively long distance to drive from his home in Kwai Fong to Kwun Tong; and that the toxicity and quantity of drug involved (0.18 µg/mL of methamphetamine) in his blood sample fell within the serious and substantial range[5], the starting point of 18 months’ imprisonment for the Drug Driving Charge could not be criticised. As for Chan, the respondent submitted that the he had a poor driving record and must have been aware of the effects of consuming two different types of dangerous drugs. Furthermore, Chan deliberately continued driving for 7 to 8 minutes after he was obliged to stop. Given such circumstances, the starting point of 2 years’ imprisonment for the Drug Driving Charge could not be criticised as wrong in principle or manifestly excessive[6].

25.  As to the issue of consecutive sentences, it was submitted, in the case of Poon, that he had already consumed dangerous drugs (which originated from a different source) before he began driving and embarked on his trafficking activity[7]. The judge was therefore correct in holding that the two charges were separate and distinct offences, which justified wholly consecutive sentences. As for the case of Chan, it was contended that the mischief at which drug driving sentences were aimed was the danger to other road users and the potential for damage to property. Such sentencing objective was quite different from that of trafficking in dangerous drugs, which targeted the supply and distribution of illicit drugs in society[8]. The appellant’s conduct in driving under the influence of dangerous drugs was independent from his possession of the dangerous drugs found in his vehicle[9]. The judge was entitled to treat the two offences as separate and distinct and order wholly consecutive sentences, thereby reflecting different policy objectives[10].

26.  Ms Kwok further submitted that, in light of the poor traffic and driving records of Chan, the fact that his previous three driving disqualification periods, which together added up to 4 years, had failed to deter him[11] and his driving after consuming multiple dangerous drugs[12], there existed no special reasons not to impose a lengthy disqualification order on him. Accordingly, the extended 5-year period of disqualification, which was 3 years in excess of the minimum of 2 years, could not be criticised as excessive.

27.  She further submitted that there was little doubt Chan posed a real risk to other road users and there were ample grounds to doubt his driving competency[13]. The imposition of a re-test order, which served as a safeguard to ensure that he no longer poses a risk to other road users, should not be impugned and ought to have been anticipated by the appellant.

Discussion

28.  The underlying issue engaged by these appeals is one of totality where essentially different charges fall for sentence by the same judge on the same occasion. There is an obvious attraction to the argument that since the offence of trafficking in dangerous drugs is qualitatively very different from drug driving, not only in respect of the elements of the offence but also in the objectives of sentencing, the individual sentences for each offence should be made consecutive to each other. However, if we were to follow the logic of that position, then two very different but serious offences committed on the same occasion, and receiving two long, individual consecutive sentences of imprisonment, would result in a very long overall sentence indeed, where the objective should be a composite sentence that achieves “an appropriate relativity between the totality of the criminality and the totality of the sentences”[14].

29.  Equally, we do not accept the proposition that simply because there is no “linkage” between two distinct criminal offences, wholly consecutive sentences must necessarily be imposed; any more than we accept that if there is such “linkage”, wholly concurrent sentences must be imposed. Ultimately, it is a matter of overall assessment of the criminality involved and the imposition of proper individual sentences for each offence, with the sentencing court taking a final look at the overall totality to ensure that it is appropriate to the overall criminality of the offences and culpability of the offender.

30.  In each of the present cases, the respective respondent has argued that there is no discernible connection between two very different offences with different sentencing objectives: the respective appellants have argued that the offences both concern dangerous drugs and are connected inasmuch as they were committed at the same time and place by the appellant concerned. As we have said, we do not think the answer lies in a rigid assessment of whether the offences are or are not connected. The answer must be governed by what is the appropriate totality of sentence appropriate to the overall culpability of an appellant who committed two very different offences.

31.  We concluded that the overall sentence in each case, derived as it was from making each sentence wholly consecutive to the other, was manifestly excessive. Accordingly, we allowed both appeals.

32.  In the result, in the case of Poon in CACC 105/2024, we did not disturb the sentence on the Trafficking Charge (Charge 1) of 6 years’ imprisonment after plea, which was a correct application of the sentencing guidelines for the dangerous drug involved. However, we varied the sentence on the Drug Driving Charge (Charge 2) by making 8 months of the sentence (rather than 12 months) consecutive to the sentence on Charge 1, thereby making an overall sentence of 6 years and 8 months’ imprisonment. The 2-year disqualification order will remain unaltered.

33.  In the case of Chan in CACC 107/2024, we did not disturb the sentence on the Trafficking Charge (Charge 2) of 6 years and 4 months’ imprisonment after plea, which was also a correct application of the sentencing guidelines for the quantity of dangerous drug involved. However, we again varied the sentence on the Drug Driving Charge (Charge 1) by making 10 months of the sentence (rather than 16 months) consecutive to the sentence on Charge 2, thereby resulting in an overall sentence of 7 years and 2 months’ imprisonment. Having reduced the overall sentence of imprisonment by 6 months, we also reduced the disqualification order from 5 years to 4 years’ disqualification. However, we agreed with Ms Kwok and decided that the re-test order of competency to drive was proper and should remain as part of the order.

34.  Accordingly, Poon’s sentence in CACC 105/2024 is reduced from 7 years’ imprisonment to 6 years and 8 months’ imprisonment; while Chan’s sentence in CACC 107/2024 is reduced from 7 years and 8 months’ imprisonment to 7 years and 2 months’ imprisonment.