Case Detail

CACC000400A/1998

CACC400/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 400 OF 1998

(ON APPEAL FROM DCCC 935 & 1046 OF 1997)

BETWEEN
	HKSAR

	AND

	CHAN KIM-MAN

-------------------------------

Coram: Hon. Stuart-Moore, V.-P., Mayo & Leong, JJ.A.

Date of Hearing: 29 September 1999

Date of Judgment: 29 September 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. This application comes before the court in slightly unusual circumstances. The Applicant seeks leave to appeal against sentence out of time, having been sentenced on 9th July 1998 by Judge Davies in the District Court to a total of three years' imprisonment for trafficking in heroin hydrochloride on two separate dates in June 1997. However, by the time this sentence was imposed, the Applicant was already serving eighteen months' imprisonment as the result of a conviction and sentence in Tsuen Wan Magistrates' Court on 20th February 1998 for a similar trafficking offence. In addition, two other magistrates' courts had sentenced the Applicant in March 1998 to a total of four months' imprisonment consecutive to the eighteen months he was serving. The District Court judge took these sentences into account when deciding that the Applicant would be sentenced to two years and one year consecutive for the trafficking charges respectively, but ordering that eighteen months of the sentence on the first charge should run concurrently to the term he was already serving. In effect, therefore, the Applicant was left to serve eighteen months' imprisonment rather than three years, in addition to the sentences imposed at the other courts.

2. However, the position was altered, on 26th February 1999, when the Applicant succeeded in his appeal against conviction in relation to the Tsuen Wan Magistratracy conviction (HCMA 48/99) and as a result the eighteen-month sentence was set aside.

3. The Applicant had less success with his application for leave to appeal against conviction regarding the two charges with which we are concerned in the present proceedings. This court dismissed the application (CACC 400/98) on 28th January 1999. At that time, there was no application in relation to sentence.

4. The full facts of the case with which we are concerned appear in that judgment. It suffices to say for present purposes that the Applicant and another man (D1) were arrested on 23rd August 1997 as the result of an undercover police surveillance exercise at a time when they had been observed selling drugs. It is also apparent that this case was, perhaps, unfortunate to reach the District Court as it was not so serious that it necessarily needed to be tried there.

5. The points which are taken on this application are reasonably straightforward. Mr. Fenton, on the Applicant's behalf, submitted that the Applicant has suffered what he termed "a miscarriage of justice" as the direct result of the Applicant succeeding in his appeal in HCMA 48/99. He argued that the District Court judge had meant the Applicant to serve only eighteen months of the sentence imposed because half of the three-year total was ordered to run concurrently. However, now that the Tsuen Wan conviction has been quashed, the Applicant has to do the full three years which only started to run from 9th July 1998 when sentence was imposed for these offences. He submitted that the Applicant will now have to serve a longer sentence, as the result of succeeding in the Tsuen Wan appeal, than he would have done if the Applicant had not succeeded in that appeal. This, he submitted, is because some of the time being served on the sentence which was ultimately quashed on appeal will not be counted towards the Applicant's sentence on the present matter. Mr. Fenton pointed out that the eighteen months was imposed on 20th February 1998, and that on 9th March 1998 the Applicant received a consecutive sentence at North Kowloon Magistracy of one month, followed by another three-month term consecutively imposed at a different court. The combined effect of these two terms taken on their own is that the Applicant would have been in custody between 9th March 1998 and 26th June 1998. Mr. Fenton demonstrated that the seventeen days from 20th February 1998 to 9th March 1998 and the thirteen days between 27th June 1998 and 9th July 1998 was time which will not be counted towards the Applicant's sentence because this was time spent serving the sentence which was ultimately quashed. Mr. Chan, on behalf of the Respondent, accepts that this situation is correct. In effect, therefore, one month of the period the Applicant has spent in custody could not be taken into account on his present sentence. This clearly justifies the granting of leave to proceed in the present application out of time.

6. Mr. Chan, in his very helpful argument, submitted that regard should be had to section 67A(1) of the Criminal Procedure Ordinance, Cap. 221, which stipulates that:

"The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose ......"

7. He is, of course, right to remind us of that provision and also in pointing out that the provision cannot affect the position in this case. The section does not apply here because the period spent in custody as the result of the sentence imposed by another court for a different offence cannot affect the sentence imposed for the present offences. However, he very fairly conceded that the court can take account of what was said in relation to Practice Direction (1970) 54 Cr App R 208 by Lord Widgery C.J. dealing with the effect in certain circumstances of the activation of a suspended sentence. This Practice Direction was also applied in Hong Kong in HCMA 191/93. In the Practice Direction Lord Widgery C.J. said:

"Where ... after a period in custody pending appeal, the appellate court is of opinion that it would be fair in all the circumstances to take that period in custody into account, this should be done by making some approximate adjustment to the term of the suspended sentence and the court should state expressly that it had the period in custody in mind whether an adjustment has or has not been made."

8. Although we do not think that what has happened can properly be described as a "miscarriage", the plain fact remains that the Applicant may justifiably now feel a sense of grievance at having been deprived of approximately a month's liberty if some adjustment to that effect is not made. We have no doubt that we have a discretion to take the period of time in custody which he has lost into account when deciding whether or not to adjust his sentence.

9. There is, however, a second aspect to the application which concerns the merits. Mr. Fenton pointed out that the Applicant was sentenced to a term of three years' imprisonment, whereas his co-defendant (D1), for precisely the same offences, received a sentence of two years in total. The justification given by the judge for this difference is set out in his Reasons for Sentence at page 156:

"D1 approached the officer on each occasion and offered to sell him drugs and, at D1's bidding, D2 fetched the packets from the housing block nearby. After the police operation in Kwai Chung Estate had concluded, the defendants were arrested.

Both defendants have criminal records although it can be said in D1's favour that he has no previous convictions related to drugs, most being for gambling. Apparently, a number of trials arising out of this police operation have taken place at Tsuen Wan Magistracy. No one has been able to explain to me why this trial has been brought to the District Court.

Because D2 was involved in another trafficking offence arising from this operation, which resulted in his conviction after trial in February 1998 at Tsuen Wan Magistracy, and for which he was sentenced to 18 months' imprisonment, D1 has had to wait for more than one year to have this matter settled.

D1 is 41 years old, and has a son who is now 20 years old. It would not be appropriate I feel to treat him as a first offender although as mentioned he has no previous convictions for involvement in drugs.
In respect of these two offences I take a starting point for sentence after trial of 2 years, being the minimum recommended sentence after trial by the Court of Appeal in R v Lau Tak-ming for trafficking in a quantity less than 10 grammes. These were offences committed on two quite different occasions, albeit during the same police operational period.
I do not think it would be appropriate in normal circumstances to make these sentences concurrent, but bearing in mind the totality principle of sentencing and the delay in bringing this case to court, which was not D1's fault, I will impose a concurrent term in respect of the second offence. I can find no mitigation of weight other than that already mentioned."

10. The judge then passed sentence on D1 and said with regard to D2:

".... he has a large number of previous convictions for various offences including two for trafficking in dangerous drugs."

11. The judge was not to know that the Applicant's conviction for trafficking in Tsuen Wan Magistracy would be quashed and we have no doubt that, passing sentence in the light of the knowledge the judge had of the case at the time, he was right to have made some distinction between the two defendants before him. However, we have the benefit of knowing now that the Applicant was ultimately acquitted, at the successful conclusion of his appeal against conviction in the Tsuen Wan Magistracy case. We are quite sure that if the judge had known that at the time he passed sentence, he would not have made the distinction between the two defendants. The other trafficking offence which the Applicant had on his record was a very long time ago, in 1983. He had a number of drug-related offences but none of the others were in respect of trafficking. Accordingly, it seems to us that the proper and fair thing to do, without any reflection on the judge's decision in the District Court, which came at a time when the circumstances were very different, is to reduce the Applicant's sentence. In order to achieve this result, we propose to make the sentences that he is serving concurrent to each other, and also we propose to take into account the loss of time in custody which is due to the quashing of the Tsuen Wan Magistracy conviction.

12. In the result, we give leave to appeal. We treat the hearing as the appeal and allow the appeal to the extent that the sentence on charge 1 is reduced from two years to twenty-three months, and the twelve-month sentence on charge 2 is left unaltered but made concurrent to the sentence on charge 1. The result, therefore, is that the total sentence is reduced from three years to twenty-three months' imprisonment.

(M. Stuart-Moore)	(Simon Mayo)	(Arthur Leong)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. Stanley Chan, S.G.C., for D.P.P./Respondent.

Mr. J.G. Fenton instructed by Director of Legal Aid for Applicant.

CACC000400/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 400
(Criminal)

BETWEEN
	HKSAR	Respondent

	AND

	NG CHUK-KWAN (D1) CHAN KIM-MAN (D2)	Appellants

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Coram: Hon Nazareth Atg CJHC, Mayo and Stuart Moore JJA in Court

Date of Hearing: 28 January 1999

Date of Judgment: 28 January 1999

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. The two applicants were tried and convicted by His Honour Judge Davies in the District Court on two counts of trafficking in dangerous drugs contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134).

2. The particulars of the first charge were that the two on or about 5 June 1997 outside Lung Fung Cafe, Kwai Chung Estate, unlawfully trafficked in a dangerous drug, namely 0.51 grammes of a mixture containing 0.46 grammes of heroin hydrochloride.

3. The particulars of the second offence were at the same place on or about 12 June they unlawfully trafficked in a dangerous drug namely 0.44 grammes of a mixture containing 0.35 grammes of heroin hydrochloride.

4. Both were sentenced to two years on the first count and 12 months on the second count, although on the second count, D2's sentence was made consecutive. We are not concerned with the sentences because both applicants now seek to appeal only against conviction.

5. The facts can be shortly stated. In May and June 1997 the police mounted an undercover operation in the Kwai Chung Estate, Kowloon to attract drug traffickers because the police believed they were operating in that area. On 5 June 1997, DPC 14456 went to an open area in the Kwai Chung Estate to undertake undercover activities. He knew that other police officers would be in the vicinity observing his movements and the movements of anyone who might approach him. If he was successful in purchasing drugs from any person, he was to place his right hand in his trousers pocket as a signal to those observing that a purchase had taken place. He was then to make his way back to the police station.

6. While he was wandering around and had got to the vicinity of Lung Fung Cafe, he was approached by the 1st applicant who asked in a low voice whether he was going to take anything. PW1 realised he was being offered drugs and answered in the affirmative. D1 asked him "large" or "small". PW1 responded "large". D1 then told D2 who was sitting nearby to go and collect a large one. D2 went off and returned amount a minute later with a packet. He asked PW1 for $200. He was given two $100 notes by PW1 and he gave PW1 a small plastic packet. PW1 placed the packet in his right trouser pocket and kept his right hand in his pocket as a signal to his colleagues that he had made a successful purchase.

7. PW1 then went back to the police station. He handed over the small plastic packet to Detective Sergeant 11254 (PW4) who later gave evidence. PW4 placed it in a sealed envelope. Later the contents were established to be the amounts of drug that were specified in the particulars of the first charge.

8. At the scene the actions of the two applicants and PW1 were observed by police officers who were watching. After PW1 had given the pre-arranged signal and had left the area, two of the officers left a car which they were in and approached the two persons to have a closer look.

9. On 12 June 1997, a similar incident took place. PW1 again went to the front of Lung Fung Cafe. He was again approached by D1 who made a similar offer of drugs. D2 was told to get a large one. D1 asked PW1 for $200 which PW1 gave him. D2 returned with a plastic packet which PW1 put in his right trouser pocket. PW1 left the area and went to the police station where he handed the packet over to PW4 who put it in a sealed envelope. Later the contents were shown to contain the amounts of drug specified in the second charge.

10. This second incident was also watched by other police officers at the scene.

11. After the police drug operation in Kwai Chung had been concluded, as the judge stated in his reasons for verdict, D1 was arrested on 17 June 1997 and D2 arrested on 23 August 1997. They were subsequently identified by PW1 at identification parades.

12. The applicants elected not to give evidence in their own defence at the trial. D1 called one witness and her evidence suggested that the officers watching might have had their view obscured.

13. The judge addressed the evidence in his short judgment. He said at the end of his judgment that he considered all of counsel's submissions and criticisms and he was satisfied that there is no merit in any of those criticisms. He rightly concluded:

"At the end of the day the only real issue goes to PW1's credibility. The question to be asked is whether this is a case in which the evidence is fabricated. Having considered the evidence carefully ,I am satisfied beyond reasonable doubt that the answer to that question is no."

14. Before us, Mr J.G. Fenton, who appears for the two applicants before us but who did not appear below, takes one substantive point. He complains that the judge failed adequately or at all to consider four matters and that had he done so, they would have caused a lurking doubt.

15. The first point concerns PW4 recording on the envelopes in which he placed the drugs he received from PW1, the words "seizing officer" referring to himself. He submits that plainly on the evidence of PW1, he was the seizing officer and PW4's record is a serious discrepancy. However PW1's evidence is perfectly clear; he obtained the drugs from the applicant. He was not shaken in his evidence that he took them to the police station and gave them to PW4. PW4 was equally clear that he received these drugs from PW1. Mr Fenton's point can be seen simply to be one that turns on the use of the words "seizing officer". Counsel below, the applicants being separately represented, did not raise this point. We have to say that there is no substance in it.

16. Allied to the same point is that the envelope was not signed by either officer, i.e. PW1 or PW4. This, it is said, is likewise a serious deficiency. We are not aware of whether there are any requirements for anything of that sort but certainly it would have been preferable if some notation or signature had been made. But that is the extent of it.

17. The third point is that when PW1 signalled his colleagues, no arrest was made. Mr Fenton eloquently asks why were these two suspects allowed to go free and continue to commit a second offence and not be arrested even on the second occasion.

18. His fourth point is why the "marked notes" that were used on both occasions did not immediately precipitate an arrest when they were handed over in payment. A clue to this would seem to be the observation that the judge made and which we have already mentioned which was that the arrests were effected after the conclusion of the entire operation. It is not too difficult to see that had the police arrested the applicants at the scene, it would immediately have become known that the police were active in the vicinity.

19. In pressing his submissions on these four matters, Mr Fenton has sought to rely upon another case in which Nguyen J found a lurking doubt upon facts which were not only very similar but involved the same group of officers in the same area.

20. We do not find ourselves greatly assisted by comparison with other cases even where the facts are similar. Likewise, Mr Fenton sought to rely the judgment of Wong J in another case where he stated that vital discrepancies should be addressed and explained; the discrepancies here could not be said to be vital.

21. We observe that these points upon which Mr Fenton relies were not raised in counsel's submissions below in any specific way. As the judge rightly observed at the end of his judgment the real issue was the credibility of PW1, and the question had to be asked whether this was a case in which evidence was fabricated. At the end of the day he was satisfied with the prosecution's evidence and that it established all the elements of each offence. That conclusion has not been faulted and we entertain no lurking doubt.

22. The applications are refused.

(G.P. Nazareth)	(Simon Mayo)	(M. Stuart Moore)
Atg Chief Judge of the High Court	Justice of Appeal	Justice of Appeal

Representation:

Mr Albert Wong SGC (DPP) for the Respondent

Mr J.G. Fenton (DLA) for the Applicants

HKSAR v. CHAN KIM MAN

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