HKSAR v. Tse Wai Hei

CACC 253/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 253 OF 2016

(ON APPEAL FROM HCCC 272 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.On 8 August 2016, the applicant appeared before Deputy High Court Judge S D’Almada Remedios, as D'Almada Remedios J was then, (“the judge”), charged with a single count of unlawfully trafficking in 2,962 grammes of a solid containing 1,798 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded guilty to this count and on the same day he was sentenced to 11 years and 4 months’ imprisonment.

2.By a Notice of Application for Leave to Appeal (Form XI) dated 11 August 2015, the applicant sought leave to appeal against his sentence.

3.At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the offence

4.On 20 January 2015, a team of plain-clothes Customs Officers were conducting an anti-narcotics operation in the Yuen Long area.  At about 11:55 am the applicant was observed to be acting suspiciously outside the male toilet near Exit J of Yuen Long MTR station. At that time, the applicant was carrying a black rucksack.  When he entered the toilet, he was followed by Customs Officers 0669, Mr Or Wai Hang and 07324, Mr Leung Kwan Siu.  The applicant was seen to enter a cubicle and when he came out from it he was intercepted by Customs Officer 0669. 

5.Customs Officer 0669 searched the applicant’s rucksack and found in it an orange plastic bag containing suspected ketamine.  This was later confirmed by a Government Chemist to be the type and quantity of dangerous drug that is particularized in the indictment.  The Customs Officer also found mobile telephones in the left and right front pockets of the applicant’s trousers.

6.Upon arrest and caution, the applicant admitted that the “K Chai” in his rucksack was his and was “for delivering to people”.  He further said that he would receive $1,000 per day for delivering the drug.

7.The total estimated street value of this dangerous drug was HK$373,212.

The mitigation

8.The applicant’s Antecedents Statement revealed that he was 17 years of age at the time he committed this offence and 18 years of age at the time of sentence.  He had two previous convictions including one for robbery and one for common assault when he was 15 years old for which he had been sentenced to Detention Centre on 12 July 2013. 

9.In mitigation, the applicant’s counsel informed the court that the applicanthad been abandoned by his parents and brought up by his grandparents.  His grandfather has been diagnosed as suffering from terminal nasal cancer and his grandmother suffers from hypertension.  At the time of the offence, the applicant’s grandparents were in financial difficulty and the applicant could not obtain employment after his release from Detention Centre.  This was said by his counsel to be the reason why the applicant chose to earn quick money from drug trafficking.  

10.The applicant’s counsel referred the judge to the judgment of the Court of Appeal in HKSAR v Wai Roxy[1], where a sentence of 10 years’ imprisonment was imposed by the trial judge on an applicant for unlawfully trafficking in 1.64 kilogrammes of ketamine.  The applicant in that case was more than a mere courier as she was also involved in repackaging the drugs.  The Court of Appeal did not disturb this sentence.

11.His counsel submitted that in the present case the applicant was only a courier of the drug and he was young when he committed the offence.  His counsel urged the judge to pass as lenient a sentence as possible.

The judge’s Reasons for Sentence

12.The judge referred to the Court of Appeal’s judgment in SJ v Hii Siew Cheng[2] which laid down the sentencing guidelines for trafficking in over 1 kilogramme of ketamine to be 14 years upward.  The judge also referred to the Court of Appeal’s decision in HKSAR v Sin Chung Kin[3] which held that trafficking in 2 kilogrammes of ketamine called for a starting point of 18 years and in 3 kilogrammes a starting point of 20 years.  The judge noted that this decision was followed by the Court of Appeal in HKSAR v Chow Yau Ching[4]

13.Taking into account the quantity of the drug, almost 1.8 kilogrammes of ketamine, and all the circumstances of the case, the judge adopted a starting point of 17 years’ imprisonment which she then reduced by one third to allow for the applicant’s guilty plea.  She then sentenced the applicant to 11 years and 4 months’ imprisonment.

The grounds of appeal against sentence

14.In his Form XI, the applicant asserted that his sentence was too long and that the judge did not follow the sentencing guideline.  He said that there were other people, whom he did not identify, who had received more lenient sentences for trafficking unlawfully in greater quantities of dangerous drugs.  When compared to these other sentences the judge in his case had adopted too high a starting point thereby resulting in a heavier sentence. 

15.Between the filing of his Form XI and the hearing of his application the applicant did not file with the court any document setting out his grounds of appeal or containing submissions in support of the complaints he made in his Form XI.

16.However, at the hearing of his application the applicantsaid he had nothing further to say.

The respondent’s submissions

17.Mr Ira Lui, for the respondent, submitted that on a purely arithmetic approach, the appropriate starting point for trafficking in 1,798 grammes of ketamine was about 17 years and 2 months’ imprisonment, which, if adopted, would have been even slightly higher than the starting point stipulated by the judge. 

18.Mr Lui took issue with, inter alia, the mitigation that the applicant was merely a courier, submitting that the applicant was in fact delivering the drug for a reward and his situation had to be distinguished from a case where an unsuspecting youngster was exploited by a drug dealer to carry drugs.

19.Mr Lui submitted that differences in sentences imposed on different defendants by different judges for different offences of the same type was not in itself a ground for the appellate court to interfere if the sentence was otherwise appropriate having regard to the nature of the offence and to the offender himself. 

Discussion

20.There is no merit in the applicant’s complaint.  The judge correctly directed herself on the relevant sentencing authorities and correctly applied those authorities to the circumstances of the applicant. 

21.The judge noted that in Hii Siew Cheng the Court of Appeal had said that for unlawfully trafficking in over 1,000 grammes of ketamine the sentencing tariff was 14 years’ imprisonment upwards.  As more and more cases of large scale trafficking in ketamine came before the courts the Court of Appeal revisited the over 1,000 grammes guideline.  In Sin Chung Kin it said that the appropriate starting points for trafficking in 2 kilogrammes and 3 kilogrammes of ketamine were 18 years and 20 years respectively.  This analysis by the Court of Appeal in Sin Chung Kin was followed in Chow Yau Ching.  The judge was therefore correct to apply these cases and in doing so her adoption of a starting point for this applicant of 17 years’ imprisonment was entirely consistent with what the Court of Appeal said in them and cannot be criticised.

22.The starting point in the Wai Roxy case was, it is true, lower than that adopted by the judge in respect of this applicant on a purely arithmetic comparison of the quantities of drugs involved in the two cases. But it is worthy of note that in that case the Court of Appeal, whilst not interfering with the starting point adopted by the judge, certainly did not endorse it.  It said:

“The judge could have adopted a higher starting point but she did not. The sentence imposed was lenient indeed.”

23.The fact that the applicant’s role was only that of a courier does not constitute a reason, by itself, for reducing the applicant’s sentence.  Couriers delivering drugs for reward are an indispensable part of the drug supply and distribution chain and under Hong Kong’s current long-standing sentencing regime do not receive any different treatment from others who may perform some other role within this chain, such as storing or packaging the drugs.

24.Finally, as this court has said on many occasions, the fact that the trafficker is young or comes from an unhappy or difficult family background does not entitle him to any greater discount than the one-third discount for pleading guilty.

25.We can detect no error in the judge’s Reasons for Sentence or any excessiveness in the sentence she imposed.

Conclusion

26.For these reasons we refused the application for leave to appeal sentence.

Mr Ira Lui SPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1]   CACC 42/2015, unreported, 9 December 2015.

[2]   [2009] 1 HKLRD 1

[3]   [2013] 1 HKLRD 627

[4]   [2014] 2 HKLRD 639