HKSAR v. FUNG CHUN YI

HCMA 133/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 133 OF 2006

(ON APPEAL FROM KOWLOON CITY MAGISTRACY 5363/2005)

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J U D G M E N T

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1.  The appellant was convicted after trial of a single charge of trafficking in 3.57 g of heroin hydrochloride as well as a single charge of keeping a divan.  Both offences occurred at the same time in premises in Argyll Street Mongkok on 25 August 2005.

2.  The appellant initially appealed sentence.  When that matter came before the court he sought and was granted leave also to appeal conviction.

3.  In short, the police obtained a search warrant in respect of the premises where the offence occurred which they executed.  After breaking into the premises they found the appellant together with another male and a female.  The appellant was searched and 26 pellets of heroin together with cash in the sum of approximately $1650 was found on his person.  One of the police officers subsequently questioned the appellant who told him that he was in charge of the premises, served people who came to consume drugs and sold drugs to others.  Another police officer testified that he had searched the premises and seen apparatus and paraphernalia suitable for the consumption of drugs scattered around the flat.

4.  In the passage of time the appellant was interviewed under caution in the police station during which he confirmed the information he had earlier provided. He further indicated that the moneys found in his wallet were the proceeds of earlier sales of drugs; that he had sold drugs to the other male and female.

5.  The appellant challenged the admissibility of the record of interview.  He contended that he had been alone in the premises when police broke open the door, hit him with a crowbar, kicked him in the kidney and further assaulted him.

6.  The magistrate rejected the appellant's version of events on the special issue, finding that the statement had been made freely and voluntarily by him.  In doing so, he accepted the evidence of the three police officers who testified on this issue.

7.  The appellant elected to give evidence on the general issue.  In this instance he indicated that flat was used by persons to play mahjong: he was responsible for cleaning the place up after it had been used and also lived there.  The money found on his person was part of his public assistance allowance which he had just received.  Although he had purchased dangerous drugs two days beforehand he had consumed all of them before the police arrived: he had no drugs on his person or in the flat.

8.  On the general issue, the magistrate found that all six of the prosecution witnesses who testified before him were honest and truthful witnesses whose evidence he accepted.  There was a further witness called by the prosecution who purported to be an expert witness: the magistrate found him not qualified to be so and did not receive his evidence.

9.  There were a number of discrepancies in the prosecution evidence, as is to be expected.  The magistrate demonstrated that he was alive to them and found that they were not material, nor did they affect credibility overall.

10.  The magistrate rejected the appellant's evidence making particular reference to the appellant’s suggestion that the other man and female, who were known to the appellant having played mahjong in the flat, had been absent from the flat that the time of police raid but arrested at some stage, elsewhere.  The Appellant today says that indeed the other two persons were present in and arrested in the flat.  The magistrate also found the appellant to be evasive when testifying.

11.  There was some debate over the correctness of the description of the premises which was properly resolved by the magistrate.

12.  The appellant was correctly convicted.

13.  In respect of the offence of trafficking in a dangerous drug the magistrate imposed a sentence of 2 1/2 years imprisonment, referring to the well-known decision in R v. LAU Tak-ming and Another [1990] 2 HKLR 370.  The magistrate observed that the appellant has 19 previous convictions.  That was incorrect.  He has appeared in court on 19 separate occasions over a 23 year period during the course of which he has amassed 44 convictions of which five related to possession of dangerous drugs and one to trafficking in dangerous drugs.

14.  As Mr Melwany fairly points out the sentence in respect of Charge 1 is well over the LAU Tak-ming guideline for this quantity of drugs.  Whilst the previous convections properly allow an increase in sentence, the period of 30 months is excessive.  The appropriate sentence is one of 24 months.

15.  In respect of the offence of keeping a divan the magistrate imposed a sentence of two years imprisonment ordering that the sentences be served concurrently with one another.  The Court of Appeal accepted two years imprisonment for this offence as an appropriate starting point in HKSAR v CHEUNG Yiu-fai, Alex CACC173/2005 but observed:

“In our judgment, the 16 months sentence on the... charge [of keeping a divan] should have been consecutive to the sentence on the [trafficking] charge to the extent of at least 12 months and it may be that he could not have complained if this had been made to run wholly consecutively.”

16.  In the circumstances and applying the principle of totality, 6 months of the sentence on Charge 2 should have been ordered to be served consecutively to the sentence on Charge 1.

17.  The appeal against conviction is dismissed.  The appeal against sentence is allowed: the sentence on Charge 1 is reduced to 2 years imprisonment; the sentence on Charge 2 is confirmed at 2 years imprisonment but 6 months of that sentence is to be served consecutively to the sentence on Charge 1.  The totality of 30 months arrived at by the Magistrate is correct.