HKSAR v. Li Leung Fai
Read the full judgment text of CACC 74/2017 on BabelCite. This Court of Appeal judgment was delivered on 24 August 2017 before Macrae JA.
Criminal law – trafficking in dangerous drugs – cocaine – sentencing – young offender – sentence review – leave to appeal – Criminal Procedure Ordinance (Cap 221) s.109A – Dangerous Drugs Ordinance (Cap 134) s.4(1)(a) and (3) – applicant aged 16 years 11 months at time of offence, intercepted with 10.1 grammes of solid containing 9.0 grammes of cocaine, admitted being paid HK$1,000 to deliver the drugs – applicant pleaded guilty and sentenced to 3 years' imprisonment – whether Training Centre order more appropriate sentencing option – whether judge erred in failing to call for pre-sentencing reports – whether starting point and discounts properly applied – judge properly applied sentencing principles in Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853 and R v Lau Tak Ming & Another [1990] 2 HKLR 370 – R v Lau Tak Ming sets starting point of 2 to 5 years for trafficking up to 10 grammes of cocaine – judge derived arithmetical starting point of 4 years 8 months for 9.0 grammes of cocaine, reduced to 4 years 6 months for age, with one-third discount for guilty plea yielding 3 years – applicant had triad association, committed offence on police bail for another matter, and was already serving a DATC order – solicitor did not persist with request for reports and acknowledged Training Centre order was not suitable – applicant himself abandoned Training Centre argument on appeal – no reasonably arguable ground of appeal – leave to appeal refused – applicant warned of right to renew and potential loss of time – final sentence: 3 years' imprisonment.
Legal issues: Whether the applicant has a reasonably arguable ground of appeal against the 3-year sentence of imprisonment for trafficking in dangerous drugs
Outcome: Application for leave to appeal refused; applicant advised of right to renew application to the Court of Appeal and warned of potential loss of time consequences.
Cited by 5 cases · Cites 2 cases
|
CACC 74/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 74 OF 2017 (ON APPEAL FROM DCCC NO 1025 OF 2016) ________________________
________________________
________________________ J U D G M E N T ________________________ 1.The applicant was charged with unlawfully trafficking in a dangerous drug, namely 10.1 grammes of a solid containing 9.0 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 10 March 2017, he pleaded guilty to the charge in the District Court before HH Judge Dufton (“the judge”) and was sentenced to 3 years’ imprisonment. 2.By way of a Notice of application for leave to appeal (“Form XI”) filed on 27 March 2017, the applicant applied for leave to appeal against his sentence. Facts admitted by the applicant 3.On 19 August 2016, at about 0122 hours, when the applicant was walking from Chuen Lung Street towards Tai Uk Street in Tsuen Wan, he was intercepted by some police officers who found that he was acting suspiciously. Upon search, the officers found in the applicant’s left front trouser pocket a bag containing a suspected dangerous drug, later confirmed to be cocaine in the quantities stipulated in the charge. 4.The applicant was duly arrested. Under caution, he admitted that he had been paid HK$1,000 to carry the drugs in question, which admission was later post-recorded in a police notebook. 5.At the time of his arrest, the applicant was found to be in possession of a mobile telephone, HK$2261.50 and RMB¥80 in cash. A search of the applicant’s home then followed but nothing incriminating was found. 6.The estimated retail value of the cocaine was HK$12,100. Mitigation 7.The applicant was 16 years and 11 months of age at the time of his arrest. 8.During mitigation there was an exchange between the applicant’s solicitor and the judge as to whether there was any need to call for pre-sentencing reports. The exchange went as follows:
9.Following the above exchange, it was submitted on behalf of the applicant that:
10.A handwritten letter of mitigation by the applicant was produced to the court. The letter stated that the applicant had reflected on his circumstances; he was very remorseful; and promised to behave in the future. Finally, it was submitted that the best mitigation was the applicant’s plea of guilty. Reasons for Sentence 11.In his Reasons for Sentence, the judge was plainly aware of the applicant’s age at the time of the commission of the offence. The judge acknowledged that section 109A of the Criminal Procedure Ordinance, Cap 221, stipulated that no court should sentence a person of or over 16 and under 21 years of age to imprisonment unless the court was of the opinion that no other method of dealing with such person was appropriate. He observed that, although that provision did not apply to a trafficking offence, any court must be cautious before committing a young offender such as the applicant to prison. 12.The judge went on to note that in Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853, the Court reaffirmed the sentencing principle that it was only in very rare cases where there were exceptional circumstances that a Training Centre order could be appropriate for a trafficking offence involving a substantial quantity of dangerous drugs. 13.Applying that principle to the circumstances of the applicant, the judge held that the applicant had committed the present offence whilst on police bail for the offence for which he was subsequently sent to DATC. He also derived from the applicant’s antecedent statement that he had a triad association. The judge further considered that, since the applicant was currently serving a DATC order, it would be unlikely that he would be a suitable candidate for a Training Centre order. 14.The judge referred to the relevant sentencing guidelines set down by the Court of Appeal in R v Lau Tak Ming & Another[1] and noted that trafficking in up to 10 grammes of cocaine would merit a starting point of between 2 and 5 years’ imprisonment. On a purely arithmetical basis, the appropriate starting point for trafficking in 9.0 grammes of cocaine would be just over 4 years and 8 months’ imprisonment. Bearing the applicant’s young age in mind, the judge adopted a reduced starting point of 4 years and 6 months’ imprisonment. 15.Giving the applicant a full one-third discount for his plea of guilty, the judge imposed an eventual sentence of 3 years’ imprisonment. Grounds of appeal 16.Mr James Tze, counsel (on appeal but not in the court below), had advanced a single perfected ground of appeal on behalf of the applicant, namely that a Training Centre order was a more appropriate sentencing option, which the judge failed sufficiently to consider. However, the applicant has this morning indicated that he does not wish to retain the services of the Legal Aid Department any further, since he does not agree with the ground advanced by Mr Tze. Having heard his reasons for discharging Mr Tze and counsel’s response, I discharged Mr Tze from further appearing at the appeal. 17.Acting on his own behalf, the applicant now says that he does not wish to go to a Training Centre. Instead, he asks for a lenient sentence in view of his age, that he was used by someone else to deliver dangerous drugs and that this is his first conviction for a dangerous drug offence. Respondent’s submissions 18.Ms Ranee Khubchandani, on behalf of the respondent, argues that, in light of the quantity of cocaine in which the applicant trafficked, the offence was a serious one, which should normally warrant a sentence of imprisonment. 19.She points out that, although the judge was open to persuasion on the point, the applicant’s solicitor did not persist with his request to call for pre-sentencing reports; indeed, he acknowledged that a Training Centre order was not a suitable option. 20.As for the applicant’s relative youth, Ms Khubchandani submits that he should not be regarded as an extreme youth[2]. Absent any exceptional circumstances in favour of the imposition of a Training Centre order, she contends that the judge was correct in refusing to call for such a report. 21.Ms Khubchandani submits that the term of imprisonment to which the applicant is subject is based on a correct arithmetical application of the relevant Lau Tak Ming guidelines to the starting point, for which there can be no complaint. Discussion 22.Interesting though Mr Tze’s argument might have been, since all of the authorities cited by Mr Tze and Ms Khubchandani involved somewhat larger quantities of dangerous drugs for which the sentencing bands for the respective dangerous drug concerned were higher, I am not going to consider this line of argument. The applicant has obviously thought about it in practical terms and, having been in custody now for more than 1 year, he obviously does not see any benefit in being sent to a Training Centre, even if he were to be considered suitable for such an order, which is perhaps doubtful. Obviously, he fears that a Training Centre order imposed at some future stage by the Court of Appeal, would actually result in him serving longer in custody in real terms than a determinate prison sentence. 23.Having said that, I can see no reasonably arguable ground of appeal against the sentence of imprisonment imposed by the judge, who evidently considered the question of the appropriate sentence on the applicant very carefully, as the above exchange in mitigation demonstrates. The judge had obviously had regard to whether he should call for various reports, notwithstanding that trafficking in dangerous drugs is an excepted offence, decided not to do so, yet nevertheless went on to give the applicant a small reduction from the starting point on account of his age. In my judgment, his approach cannot be faulted. Nor can the arithmetical starting point of 4 years and 8 months’ imprisonment for the quantity of cocaine involved, from which he gave the applicant a 2 months’ discount for his age, be criticised. Finally, the one-third discount accorded by the judge for the applicant’s plea is unimpeachable. 24.In my judgment, once the judge had determined that there was no other appropriate way to deal with the applicant than imprisonment, there can be no reasonably arguable ground of appeal against the ultimate sentence, which he approached correctly and in line with authority. 25.The application must be refused. The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application.
Ms Ranee Khubchandani PP, of the Department of Justice, for the Respondent The Applicant appeared in person [1] [1990] 2 HKLR 370. [2] In this connection, counsel referred to a sentencing decision of the Court of First Instance in a trafficking case, namely HKSAR v Ng Ping Hei (HCCC 299/2012), where the court held that the defendant, who was 15 years and 11 months old at the time of offence, fell outside the category of extreme youth. | |||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case