HKSAR v. POON CHI KEUNG

CACC 105/2024, [2025] HKCA 328 On Appeal From [2024] HKCFI 1504 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)

BETWEEN

HKSAR Respondent and Poon Chi Keung (潘志強) Applicant Before: Hon Macrae VP in Court Date of Hearing: 3 April 2025 Date of Judgment: 3 April 2025

J U D G M E N T The applicant pleaded guilty before a magistrate, on 18 ‍September 2023, to one count of trafficking in a dangerous drug, namely 41.17 grammes of a crystalline solid containing 40.97 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap ‍134‍ (“Count 1”); and one count of driving a motor vehicle with any concentration of a specified illicit drug, contrary to section 39K(1) of the Road ‍Traffic Ordinance, Cap 374 (“Count 2”). Having confirmed his pleas before Andrew Chan J (“the judge”) in the High Court on 13 ‍May ‍2024, the applicant was sentenced to an overall term of 7 years’ imprisonment and was further disqualified from obtaining a driving licence for a period of 2 years. By his Form XI Notice filed on 24 May 2024, the applicant has sought leave to appeal against his sentence of imprisonment only. Facts accepted by the applicant At about 11:50 pm on 8 March 2021, the applicant was intercepted by a police officer on motorcycle duty at the junction of Hoi ‍Yuen Road and How Ming Street, in Kwun Tong, Kowloon while he was driving a private vehicle (“the vehicle”). The applicant was observed to be unfocused upon enquiry and tested positive for “Ice” and cocaine when a Rapid Oral Fluid Test was conducted on him. Upon a search of the vehicle, the officer found three plastic

bags containing the subject matter of Count 1; one set of electronic scales; two iron poles placed inside a grey-white recycle bag; eight resealable plastic bags; and two vehicle registration plates. The applicant was arrested but remained silent under caution. A Government Chemist’s report subsequently revealed 0.18 micrograms per millilitre (µg/ml) of “Ice” in his blood, which led to the laying of the charge in Count 2. In pleading guilty, the applicant admitted that he was knowingly in possession of the dangerous drugs seized and particularised in Count 1 for the purpose of unlawful trafficking. Personal circumstances and mitigation The applicant was 37 years of age, having been educated up to Form 3 standard. He was working as a delivery assistant with a daily salary of HK$600 at the time of his arrest. Amongst his seven previous court appearances, he had nine convictions, including one for trafficking in dangerous drugs in 2011, for which he was sentenced to 3 ‍years and 4 ‍months’ imprisonment; and two for possessing dangerous drugs in 2016 and 2021. Defence counsel (who was not Mr Yu) urged the judge not to regard the applicant’s drug-related record as an aggravating factor, suggesting that his previous convictions arose out of his long-term addiction to “Ice”, with the trafficking record dating back some 10 years. It was submitted that he had been addicted to “Ice”

since the age of 25, consuming about 0.5 to 0.6 grammes per day. Counsel invited the judge to grant a sentencing discount of 10% to 25% to reflect the fact that a portion of the drugs in Count 1 was for his own consumption, and a full one-third reduction for his timely plea of guilty. Counsel further submitted that Count 2 was committed in close proximity to Count 1, both in time and circumstance. Had the offence not been indicted along with Count 1, it could have been addressed in a magistrate’s court, resulting in a lower penalty upon summary conviction. The judge was then urged to impose concurrent sentences in respect of both counts, applying the principle of totality. Sentencing In respect of Count 1, the judge adopted a starting point of 9 ‍years’ imprisonment for the quantity of “Ice” concerned, which he then enhanced by 6 months because of the applicant’s previous similar conviction for trafficking, thus resulting in 6 years and 4 ‍months’ imprisonment after the customary one-third discount for his plea. Noting that the applicant could easily access and obtain the drugs, despite his claim that he possessed drugs for his own consumption, the judge considered that “only a small discount” of 4 months would be granted for his own consumption, resulting in 6 years’ imprisonment on Count 1. In respect of Count 2, taking into account the applicant’s level of intoxication from

“Ice”, the absence of any accident, injury or erratic driving, but that he was unfocused upon being questioned by police, the judge adopted a starting point of 18 months’ imprisonment, which was then reduced to 12 months’ imprisonment after plea. In addressing totality, the judge considered that “the two offences are two separate and distinguishable offences and bear no relationship to each other”, and ordered the sentence of imprisonment on Count 2 to run wholly consecutively to that imposed on Count 1, making a total sentence of 7 years’ imprisonment. Ground of appeal against sentence Mr Raymond Yu, appearing for the applicant, has advanced a sole ground of appeal that the judge failed to order the sentences on both counts to be served partly consecutively and partly concurrently. Alternatively, he argued that the total sentence was manifestly excessive, since the judge had failed to apply the principle of totality. By reference to HKSAR v Lam Chi Wa and HKSAR v Tsang ‍Chun Hin, Mr Yu submitted that partly consecutive sentences could be imposed on drug and driving offences in spite of their distinct nature, by application of the principle of totality. He also referred the Court to HKSAR v Lam Chun Yin, where part of the sentence for drug driving was ordered to run consecutively to the trafficking and dangerous driving counts, notwithstanding that different types of drugs were

involved in the different offences. It was further argued that the two offences in the present case should be regarded as related to each other as one course of criminal conduct, in accordance with the ‘one transaction’ rule, given that they were committed at the same place and time, and involved the same type of drugs, and that the judge had accepted that a small part of the drugs in Count 1 was for the applicant’s own consumption. Accordingly, Mr Yu suggested that the sentences on the two counts should be served partly consecutively and partly concurrently. Respondent’s submission Mr Jonathan Chu, on behalf of the respondent, fully adopted the written argument of Ms Lily Yip, submitting that the ‘one transaction’ rule was not an inflexible one and was “sensitive to the individual circumstances of the case and the offender”. He contended that the judge was correct to determine that the two counts were separate and distinct, given that the applicant had admitted consuming the “Ice” before he drove to Kwun Tong that night, which was not part of the drugs obtained by him from the supplier and seized in Count 1; and that the judge had a discretion to order the sentences to run consecutively: see Clarkson v R. The overall sentence of 7 years’ imprisonment could not be said to be manifestly excessive or wrong in principle in the circumstances, having regard to the principle of

totality. Mr Chu submitted that Lam Chi Wa should be distinguished from the present case in terms of the different charges and facts involved (although it would appear that, if the two counts of trafficking and drug driving are “separate and discrete”, Lam Chi Wa is also an authority in favour of the respondent: see paragraph 33 therein). He further invited the Court to note that in HKSAR v Chan Pui Ming, the defendant was charged with exactly the same offences arising out of a similar factual background, and the same judge also ordered wholly consecutive sentences for the two offences. An application for leave has already been lodged to appeal against that sentence, which will be determined in May 2025. Consideration I shall deal with Mr Yu’s specific argument as to whether the applicant’s trafficking activity and drug driving should have been regarded as a single transaction, although it seems to me that his principal argument is really concerned with the totality of the sentence for the criminality involved when the two offences are viewed together. Whilst the underlying criminality of drug driving is that, having consumed a drug or been influenced by such consumption, the applicant nevertheless drives or attempts to drive on the road and therefore puts the safety and lives of other road users at risk, the fact that when he drives he is also in pursuance of a trafficking

activity may give rise to a separate and distinct criminality. The answer to Mr Yu’s specific argument also depends on the facts and evidence, which will vary from case to case. In the present case, there is no apparent linkage between the “Ice” consumed by the applicant and that used for trafficking, or in the vehicle. That may also be consistent with what the applicant accepted by way of mitigation, namely, that he obtained his own “Ice” from a different source and consumed it before driving the vehicle, despite his claim that the plastic bag of 8 cm x 5 cm, containing 13.6 grammes of “Ice”, was purchased for his own consumption (and had not in fact been consumed at the time). It is relevant to note in this connection that, in Lam Chi Wa (supra), when speaking of “the correct approach to be taken when the drug trafficker is also charged with the offence of dealing in or with the proceeds of his own crime”, the Court held (at [33]): “In a situation where a person is charged with a drug trafficking offence and at the same time a money laundering offence with respect to the proceeds of that very same drug trafficking, then allowance can properly be made for this by making the whole or a substantial part of the sentences concurrent. However, when the drug trafficking and money laundering charges are separate and discrete, and by this we mean that the funds are not referable to

the actual drug trafficking charged, then it is only in the context of totality that a sentencer should consider making some part of the sentences on the money laundering charges concurrent to the sentence for drug trafficking.” In my view, the same logic should apply in the present case. Having said that, and whilst no criticism has been levelled by counsel against the individual sentences passed, I am concerned with the sentence on Count 2. The offence of driving a motor vehicle with any concentration of a specified illicit drug, contrary to section 39K(1) of the Road Traffic Ordinance may attract different maximum sentences depending on whether a person is convicted summarily or on indictment. Section 39K(1) specifically provides that: “(1) A person who drives or attempts to drive, or is in charge of, a motor vehicle on any road while any concentration of a specified illicit drug is present in the person’s blood or urine (whether or not any other drug is also so present) commits an offence and is liable— (a) on conviction on indictment, to a fine at level 4 and to imprisonment for 3 years; and (b) on summary conviction— (i) on a first offence under this subsection, to a fine at level 3 and to imprisonment for 6 months; (ii) subsequent to a conviction on indictment under this subsection, to a fine at level 4 and to imprisonment for 12 months; (iii) subsequent to a summary

conviction under this subsection, to a fine at level 4 and to imprisonment for 12 months; or (iv) subsequent to a conviction under section 39J, 39L, 39O(1) or 39S, to a fine at level 4 and to imprisonment for 12 months.” In the present case, no traffic accident was caused and no serious allegation was made against the applicant in respect of his driving manner or for imperilling other road users. Clearly he was indicted with the offence in the High Court not because of any facts relating to his drug driving but because of his drug trafficking activity at or around the same time. Had he been separately convicted of the offence in a magistrate’s court, it would seem that the maximum sentence would normally have been 6 months’ imprisonment (and a fine) for a first-time offender. I am aware that in Secretary for Justice v Chan Hon Hoi, a case on review, this Court increased the starting points in respect of two drug driving related offences (namely, driving a motor vehicle under the influence of drugs, contrary to section 39(1) of the Road Traffic Ordinance) to 2 ‍years and 2½ years respectively; whilst in HKSAR v Yip ‍Sing Yeung, the Single Judge refused to grant leave to appeal against, inter alia, the starting point of 27 months’ imprisonment (reduced to 18 ‍months’ imprisonment for the applicant’s guilty plea) for a similar offence (namely, driving a motor vehicle without

proper control under the influence of a specified illicit drug, contrary to section 39J(1) of the Road ‍Traffic ‍Ordinance) on the basis that it was not manifestly excessive. Nevertheless, it should be noted that the facts of those two cases were very bad cases of their type. I consider it reasonably arguable that the starting point of 18 ‍months’ imprisonment (and the resulting sentence of 12 months’ imprisonment on a plea) in respect of Count 2 was manifestly excessive. Furthermore, apart from any argument as to what is appropriate as the individual sentence for Count 2, it seems to me reasonably arguable that the overall totality was manifestly excessive. That, of course, necessarily engages the issue of whether the sentences should have been partly consecutive and partly concurrent, which is Mr Yu’s current ground of appeal. Accordingly, I shall grant leave to appeal on that basis. (Andrew Macrae) Vice President Mr Jonathan Chu SPP (Ag), of the Department of Justice, for the Respondent Mr Raymond Yu, instructed by Tse Yuen Ting Wong, assigned by the Director of Legal Aid, for the Applicant