HKSAR v. CHAN CHI FAI

CACC 432/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 432 OF 2005

(ON APPEAL FROM HCCC NO. 36 OF 2005)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1. The applicant pleaded guilty before Deputy Judge E Toh in the Court of First Instance to two counts, namely, (1) conspiracy to traffic in a dangerous drug, and (2) trafficking in a dangerous drug.  The applicant was the second accused at the trial.  He faced the 2nd count alone and was jointly charged with the first accused (“D1”) on the 1st count. 

2. The judge adopted a starting point of 9 years’ imprisonment on the 1st count and gave a one-third discount to D1 for his guilty plea, resulting in a sentence of 6 years’ imprisonment passed on him.  

3. Regarding the applicant on the 1st count, the judge reduced the starting point of 9 years’ imprisonment by 40 per cent due to the mitigating factors applicable to the applicant himself, resulting in a sentence of 5 years and 4 months’ imprisonment.  On the 2nd count, in respect of which the applicant (and not D1) was charged and pleaded guilty, the judge adopted a starting point of 8 years’ imprisonment, reduced it similarly by 40 per cent, to reach a sentence of 4 years and 9 months’ imprisonment.  She ordered 2 years of this sentence to run consecutively to the sentence on the 1st count.  The total sentence imposed on the applicant came to 7 years and 4 months.  

4. The applicant sought leave to appeal against the overall sentence.  At the conclusion of the hearing on 20 April 2006, we dismissed the application.  Our reasons appear below.

Grounds of appeal

5. The grounds of appeal raised on behalf of the applicant by his counsel Mr H Y Wong can be summarised as follows:

(1)     The judge erred in failing to take into account or sufficient account that the 2nd count was in reality a sample charge of the 1st count, resulting in her not passing a wholly concurrent sentence for the two counts.

(2)     There was a “glaring disparity” between the sentences for the applicant, ie 7 years and 4 months’ imprisonment, and D1, ie 6 years.

(3)     The disparity can be accentuated by looking at the starting point of the overall sentence for the applicant which would be over 12 years and 3 months, and that for D1 9 years.

(4)     By reason of (1), (2) and (3) above individually or cumulatively, the overall sentence of 7 years and 4 months’ imprisonment is manifestly excessive and wrong in principle.  

6. There was no challenge to the starting points of 9 years’ imprisonment for the conspiracy charge and 8 years for the trafficking charge.  The main thrust of the grounds of appeal was on disparity. 

Disparity

7. Mr Wong drew our attention to Stroud (1977) 65 Cr App R 150, at 153 where Roskill LJ referred to what was stated by Lord Chief Justice in the unreportedcase of Brown (1974):

“The Lord Chief Justice went on: ‘This in our experience is a somewhat novel argument.  The practice of the Court to give effect to what is popularly called “the disparity argument” is itself a relatively new feature in the practice of this Court.  It arises only when the would be appellant has received a sentence which the Court thinks proper in itself but which is so disparate when compared with other sentences passed at the same time’ – I would venture to italicize those four words ‘at the same time’ – ‘that a real sense of grievance may thereby be engendered in the person upon whom it is passed.  It was never intended that a sentence should be reduced on the basis of disparity unless there was such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered in the case of a man suffering the more serious penalty.  That practice is well established now.  We would not wish to disturb it, but we would certainly wish to say as a matter of general principle that an argument based on disparity should be based on the circumstances prevailing when the sentence attacked was itself passed, and we do not think, save in the most exceptional circumstances, that it should ever be proper for the Court to listen to an argument based on disparity which involves bringing in subsequent sentences passed on other people before a different judge in another court.”

8. The practice has also been adopted in Hong Kong.  In HKSAR v Cheng Ka Wing [2001] 2 HKLRD 260, at 264H, this Court, differently constituted, stated:

“We accept that there may be an objectionable disparity of sentences where one of two, or more, defendants receives from the same judge and at the same time, a more severe sentence than the other, or others and the difference is not justified by any relevant distinction in their culpability or personal circumstances.  There is ample authority for that proposition.  R v Quirke [1982] 4 Cr App R (S) 187, R v Sykes (1980) 2 Cr App R (S) 173 and R v Church (1985) 7 Cr App R (S) 370 are all examples of its application.”

9. In Lowe v R (1984) 12 A Crim R 408 at 409, Gibbs CJ explained:

“It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.  The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.”

10. In R v Evans [1973] 5 SASR 183, at 190, it was stated:

“The majority is of the opinion that discrimination between defendants can be justified by reference to differences in the relative responsibility of the defendants for the commission of the offence or offences, the number of offences respectively committed by them, their respective records, and the presence of mitigating factors of a personal nature which apply to one defendant and not to the other.”

11. In order to see whether the ground of disparity is justified, it is necessary to set out the Summary of Facts admitted by both D1 and the applicant upon their pleading guilty:

“On the 13th October 2004 the 1st and 2nd defendants [D1 and the applicant] together rented the premises known as Room A, 4/F 703 Nathan Road, Mongkok.

2.    On the day in question police officers observed the 1st defendant leave Room A and walk downstairs where they intercepted him outside the building.  The police searched the 1st defendant and found that he was carrying a paper bag which contained a bundle of 100 garbage bags in three different colours, red, white & blue.  They also found a bunch of keys and when they took the 1st defendant back to the 4/F they used those keys to gain entry into the premises.

3.    The police entered with the 1st defendant and found the 2nd defendant sitting on a mattress on the floor in the single bedroom.  On a folding table beside the mattress the police found the following materials:

(a)      A plastic zip-lock bag containing heroin in lump form;

(b)      A plastic zip-lock bag containing 63 heroin pellets in blue or yellow wrappings;

(c)      A plastic zip-lock bag containing 56 heroin pellets in green or yellow wrappings;

(d)      A container containing 16 heroin pellets in blue, white, yellow & green wrappings;

(e)      A small box containing several small plastic zip-lock bags; and

(f)        Drug packaging paraphernalia which included an electronic balance, 3 piles of plastic sheets in green, yellow and blue, two lighters, two metal clips and a pair of scissors.

The total amount of heroin seized from the table was 78.28 grammes of a mixture containing 47.97 grammes of heroin hydrochloride.

4.    The 1st defendant was arrested and subsequently interviewed by the police.  He said that he jointly rented the premises with the 2nd defendant and who slept in the bedroom while he, the 1st defendant, slept in the sitting room.

5.    The 1st defendant told the police that when he had returned to the premises that day he had seen the 2nd defendant packaging heroin but that he had not assisted and just gone to sleep.  He said that since October 2004 he had worked at a heroin street stall in Fife Street.  His job was to collect the money from sellers at the stall.  He worked from 7 a.m. until 9 a.m. and had been at work on the morning of his arrest.  He had collected proceeds of about $3,000 to $4,000 that morning which he had handed over to another person.  He had then returned to the said premises where he had gone to sleep.  He told the police that the garbage bags which had been found on him were similar to which the 2nd defendant used for packing drugs.

6.    The 1st defendant told the police that a green notebook found on him contained records of the money collected from the stall in Fife Street with dates, times and total sums of money collected and handed over.  He said that the different coloured wrappings of the heroin pellets represented different sizes and prices.  He said that the heroin pellets would be deliver[ed] to a divan also at Fife Street.  Both he and the 2nd defendant worked there for the same boss – a man named ‘Ah Ping’.  He said that his role was to collect payments at the street stall while the 2nd defendant’s role was to deliver the packets of heroin to the divan.

7.    The 2nd defendant was arrested and subsequently interviewed by the police.  He said that he had come to know the 1st defendant about a month before and they had jointly rented Room A.  His job was to package heroin into the form of pellets and then the 1st defendant would take them to the street stall in Fife Street while he took them to the heroin divan in the same street.  He told the police that he had been solicited to help with the packing and distribution of the drugs.  He would be telephoned by an unknown person and told to collect the drugs at his front door or from beneath the garbage bin.

8.    He said that at about 9 p.m. on the day of his arrest he had been telephoned and told to collect the heroin which had been placed at his front door.  He opened the door and found the heroin which he took inside and packaged into three different sizes differentiated by the colour of the wrappings.  He had to wait for a further call from the same man who would then instruct him to deliver the drugs.

9.    The 2nd defendant told the police that sometimes the 1st defendant would help him with the packaging and he would give him some heroin as a reward afterwards.  He identified three notebooks which had been seized inside the apartment.  He said they recorded the amount of drugs delivered to the divan and the street stall in Fife Street with other details of the sale including the dates, quantities and prices.”

12. Mr Wong argued that the 2nd count was in reality a sample charge of carrying out the conspiracy under the 1st count.  He contended that the overall criminality of the applicant should have been reflected in the sentence on the 1st count, and therefore the judge should have ordered the sentences on the 1st and 2nd counts to run concurrently in their entirety.  He further argued that from the Summary of Facts, the applicant and D1 were clearly in the same criminal enterprise together, even though the prosecution had seen fit not to prosecute D1 in respect of the 2nd count.  Thus, the overall sentence of 7 years and 4 months for the applicant was either wrong in principle or manifestly excessive.  

13. On behalf of the respondent, Mr Francis Lo submitted that it was not entirely accurate or correct to say that the 2nd count was “in reality a sample charge of carrying out the conspiracy under the 1st count”.  He made the following points:

(1)    The nature of the two counts is different: Count 1 being conspiracy to traffic in a dangerous drug and Count 2 being trafficking in a dangerous drug.

(2)    The period covered by each charge was also different.  The offence under Count 1 took place over a period of some 33 days, from 11 September to 14 October 2004, where as the offence under Count 2 took place on a specific date of 13 October 2004 and at a specific address, namely, Room A, 4^th floor, No. 703 Nathan Road, Mongkok.

(3)    The subject matter of the two counts was also different: the 1st count did not specify any particular quantity of dangerous drug whereas the 2nd count relates to a specific quantity, namely 47.97 grammes of heroin hydrochloride.

(4)    The facts in support of Count 1 and Count 2 are also different, as borne out by the Summary of Facts admitted by both the applicant and D1.

(5)    From the Summary of Facts as admitted by the applicant and D1, the applicant was found by the police to be inside the single bedroom in the flat where the 47.97 grammes of heroin together with packaging paraphernalia were found, and that the applicant was the person who occupied the bedroom whereas D1 occupied the sitting room.  By reason of the evidence, Mr Lo submits that it was to be expected that only the applicant, but not D1, was charged with the 2nd count.

14. We accept that while the facts as admitted by the applicant and D1 might have been quite similar, the following matters are of significance in distinguishing between their involvement in the transactions:

(a)      While D1 only occupied the sitting room, the applicant occupied the single bedroom in the flat, in which bedroom the drugs together with the packaging paraphernalia were found. 

(b)      D1 was not found by the police to be in possession of any drugs outside the flat or inside the flat, whereas the applicant was found to be on the mattress next to the folding table in the bedroom, and on the folding table were found the drugs and packaging paraphernalia. 

(c)       The admission of the applicant that sometimes D1 would help him with the packaging and he would give him some heroin as a reward afterwards.  This demonstrates that the applicant was in charge of the packaging of the drugs.

15. The above facts as admitted by the applicant distinguished his involvement regarding the drugs found in the bedroom from D1’s involvement, justifying his being charged with the 2nd count whilst D1 was not.  The applicant and not D1 was in charge or control of the drugs under this count.  His criminality was more serious than D1’s. 

16. In the circumstances, we are not satisfied that there is a glaring disparity between the sentence passed on D1 and the overall sentence passed on the applicant. 

17. While the 2nd count may be said to be a part of the conspiracy, it is clearly not a sample charge of the conspiracy.  The applicant obviously played a more important role than D1 in the conspiracy.

Conclusion

18. For the above reasons, we consider that the judge had not erred in principle in passing the overall sentence of 7 years and 4 months’ imprisonment on the applicant, nor do we consider that the sentence is manifestly excessive.  The application for leave to appeal against sentence was therefore dismissed.