HKSAR v. CHEUNG YIU FAI, ALEX

CACC 173/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 173 OF 2005

(ON APPEAL FROM HCCC NO. 22 of 2005)

____________________

____________________

______________________

J U D G M E N T

______________________

Stuart-Moore, Ag CJHC  (giving the judgment of the Court):

Background

1.  On 1 April 2005, the applicant pleaded guilty in the Court of First Instance before Deputy Judge To to 3 drugs related offences and was sentenced, in totality, to 7 years and 8 months’ imprisonment against which he now seeks leave to appeal.

2.  On the 1^st charge of trafficking in a mixture containing 2.18 grammes of heroin hydrochloride, the applicant was sentenced to 3 years and 4 months and on the 2^nd charge he received 16 months for keeping a divan of which only 4 months was ordered to run consecutively to the sentence on the 1^st charge.  Both these offences were committed on 5 August 2004. 

3.  The applicant was released on police bail until 7 September 2004 but he failed to report to police on that date and was placed on the ‘wanted’ list.  Then, on 21 September 2004, the applicant committed the offence set out in the 3^rd charge of trafficking in a crystalline solid containing 26.09 grammes of methamphetamine hydrochloride (ice).  For this, he was sentenced to 6 years’ imprisonment of which 4 years was ordered to run consecutively.

The facts

4.  This was a case of the most straightforward kind.  The applicant, aged 27, had just left a flat in Mongkok when he was intercepted and taken back into the premises.  There, all the usual items associated with a divan were found.  Four men and a woman were inside.

5.  The applicant admitted he had been the “keeper” of the flat for 2 days and that the people inside were customers.  A search of the flat revealed the heroin in the 1^st charge which he said was being sold by him for his “boss” who he declined to identify.  The applicant explained that the heroin packets being sold in the divan came in 3 sizes, costing from $100 to $470.  With reference to his own daily salary, he said he was paid $450.  He admitted that he was himself an addict and that his habit cost him $100 to $200 a day.

6.  The applicant’s arrest of 21 September 2004 was the direct result of a highly alert police officer (described in the Summary of Facts as PC 1542) recognising the applicant in Sai Yeung Choi Street, Mongkok, as the same person he had arrested on 5 August 2004.  The ice, the subject of the 3^rd charge and valued at $8,701, was found in 2 packets inside the applicant’s trouser pocket.  The applicant said he was delivering the drugs for “Ah Tung” for a payment of “$500 to $800”.

The application

7.  In passing sentence on the 1^st charge, the judge referred to the guidelines in R v Lau Tak-ming & Ors [1990] 2 HKLR 370, correctly stating that the sentence for up to 10 grammes of heroin fell within the tariff band of 2 to 5 years. It is apparent from this that 2.18 grammes would usually be taken as being at the lower end of this scale. Nevertheless, having commented that sentence was “more or less fixed by tariffs” the judge went on to take the 5-year maximum under the guidelines for this band which he reduced by a third to 40 months to reflect the plea.  He gave as his reasons for so doing:

“The 1st charge is a clear case of possession of drugs for trafficking and, in fact, the circumstances are that you actually were trafficking in dangerous drugs as a business, and for profit, even though more for the person behind than for yourself. The quantity is small but, in the circumstances, it is not appropriate to consider tariff purely on the quantity because the quantity itself does not reflect the criminality behind and it would be unrealistic to assess criminality based on the quantity found on your person.” (Appeal bundle p. 10)

8.  Mr Simon K C Lam, on the applicant’s behalf, submitted that this starting point was manifestly excessive.  The applicant was not a previously convicted drug trafficker and, save in situations where a trafficker is supplying to friends in a social context, he rightly contended that it is usually implicit in every trafficking case that there is a commercial element.  This case was no exception and we agree, with respect, that the fact that the applicant was trafficking “as a business” was no reason for increasing what would normally have been the starting point for this offence. 

9.  However, the matter does not quite end there.  The judge also seems to us to have been saying that having regard to the nature of the applicant’s work at the divan where he supplied drugs, the sentence should take into account other drugs he must have sold on earlier occasions because, as he put it: “it would be unrealistic to assess criminality based on the quantity found on [the applicant’s] person”. 

10.  This was not a conspiracy charge where such an approach could be justified.  The charge set out precisely the quantity of drugs for which the applicant had to be sentenced and, by selecting a notional and necessarily arbitrary amount which was greater than this, the judge, inadvertently no doubt, broke a cardinal rule in sentencing.  The applicant could only be sentenced for the offence he had admitted, not for other offences he may or may not have also committed.  In any event, the 2^nd charge, keeping a divan, provided the judge with a legitimate way in which to pass an additional sentence.

11.  In our opinion, having regard to these factors, a proper starting point on the 1^st charge would have been in the region of 2 years and 6 months, reduced to 20 months to reflect the plea.  The necessity for this downward adjustment in sentence means that the whole of the sentencing process now needs to be reassessed.

12.  Mr Lam made no complaint about the sentence on the 2^nd charge.  However, we note that the judge, having adopted a 2-year starting point and having reduced this to 16 months on account of the applicant’s plea of guilty, said that as the trafficking in the 1^st charge was at “more or less the same time” as keeping a divan in the 2^nd charge, 4 months of the sentence for this offence should run consecutively, adding that this was: “because I adopted a very high starting point for the 1^st charge”.  However, it was the keeping of a divan which, as we have said, enabled the judge by proper means to add to the sentence he imposed for heroin trafficking.  Furthermore, by imposing a much higher sentence than normal on the 1^st charge and by making a partially consecutive sentence on the 2^nd charge, the applicant had effectively received a double penalty.  In our judgment, the 16-month sentence on the 2^nd charge should have been made consecutive to the sentence on the 1^st 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.  On this reassessment of sentence on the first two charges, this would leave 32 months’ imprisonment in place of the 44 months imposed by the judge.

13.  Turning lastly to the 6-year sentence on the 3^rd charge, this was achieved after the judge had taken a 9-year starting point and given the usual discount of one-third for the plea of guilty.  In his sentencing remarks, the judge said:

“The 3rd charge, trafficking in ‘ice’, this is more serious. It was committed while you were on bail for the 1st and 2nd charges. You absconded and took the opportunity to make more money. This is deliberate and wanton disregard of the law and breach of the law and this is an aggravating factor because it appears that the previous arrest was not sufficient to deter you and deterrence is therefore required.” (Appeal bundle p. 10)

14.  Again, Mr Lam submitted that the judge had gone far too high in the selection of a starting point.  The guidelines in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 indicate that for between 10 to 70 grammes of ice a term of 7 to 10 years is appropriate.  Here, the amount was 26.09 grammes, for which, in principle, a sentence in the region of 7 years and 9 months would normally be regarded as appropriate.  To this has to be added the “aggravating factor” which the judge had spoken about in regard to the commission of the offence after the applicant had absconded on bail.  In our view, at least a further 6 months should be added to reflect this.

15.  Taking, therefore, our resulting assessment of 8 years and 3 months as the appropriate sentence in principle on the 3^rd charge, and giving the usual one-third discount for the plea, this is reduced to 5 years and 6 months.  The 3^rd offence in principle warrants a consecutive sentence which, when added to the combined sentence of 32 months for the other charges based upon our assessment of them, would mean a total of 8 years and 2 months.  As a totality, we consider this to be excessive and that a sentence of 7 years would be appropriate in all the circumstances.

Conclusion

16.  Accordingly, we shall grant leave to appeal against the sentences imposed on charges 1 and 3.  Treating the hearing as the appeal, we reduce the sentence on the 1^st charge to 20 months and on 3^rd charge to 5 years and 6 months’ imprisonment.  Utilising our powers under section 83I(3) of the Criminal Procedure Ordinance, Cap. 221, we quash the judge’s order that 4 months of the 16-month sentence he imposed on the 2^nd charge should run consecutively to the sentence on the 1^st charge and in its place we order that 12 months of this sentence should run consecutively.  Similarly, on the 3^rd charge, we order that 4 years and 4 months should run consecutively to the other sentences imposed.  This leaves a total sentence of 7 years’ imprisonment to be served in place of the 7 years and 8 months imposed by the judge. 

17.  In the result, therefore, the overall sentence is reduced by 8 months.  To this extent, the appeal succeeds.