HKSAR v. Cheung Yuk Sim, Tenny

CACC 61/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 61 OF 2016

(ON APPEAL FROM HCCC NO. 50 OF 2015)

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Before :  Hon Lunn VP and McWalters JA in Court

Date of Hearing:  1 November 2017

Date of Judgment: 1 November 2017

Date of Reasons for Judgment :  3 November 2017

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The applicant, who was unrepresented having been refused the grant of legal aid, the assistance of the Bar Free Legal Service Scheme and the Clinical Legal Education Centre of the University of Hong Kong, sought leave to appeal against the sentence of 15 years and 4 months’ imprisonment, imposed on her by Deputy High Court Judge S.T. Poon on 29 February 2016, following her plea of guilty on 29 December 2015 to one count of unlawfully trafficking in dangerous drugs, namely 1,410 grammes of methamphetamine hydrochloride (“Ice”) and 150 grammes of heroin hydrochloride on 7 June 2014, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1). The judge ordered that Count 2, which averred that the applicant was in unlawful possession of 0.96 grammes of Ice, remain on the court file not to be proceeded with without the leave of the court. At the conclusion of the hearing, we refused the application and said that we would give our reasons in due course. That, we do now.

The facts

2.The applicant was intercepted by customs officers at 5:59 pm on 7 June 2014, as she walked through the ‘Green channel’ of the Arrival Hall of Lok Ma Chau Spur Line Control Point.  A search of a bag, which she was carrying, revealed the presence of two sealed packets, which on analysis were found to contain the dangerous drugs the subject of Count 1.  The applicant asserted that the packets contained sugar, but having been arrested and cautioned, she remained silent.

3.A search of the applicant’s person revealed the presence of 0.96 grammes of Ice wrapped in tissue paper in her brassiere.  The applicant asserted that it was for self‑consumption.

4.In a subsequent video recorded interview, the applicant said that she helped an acquaintance “Ah Fai” to bring two packets of what she believed was sugar from the Mainland into Hong Kong for a promised reward of $1,000.  He had given her the Ice found in her brassiere for her own consumption.  

5.The total retail value of the dangerous drugs was $965,752.90.

Mitigation

6.In mitigation on behalf of the applicant, Mr Boyton invited the judge to note that the offence had been committed prior to the judgment of the Court of Appeal in HKSAR v Tam Yi Chun,[1] in which further guidelines had been provided for unlawful trafficking in large quantities of Ice.  In those circumstances, he drew the judge’s attention to the judgment of the Court of Appeal in HKSAR v Stojanovic Milka.[2]  In the result, he invited the judge to stipulate a starting point for sentence of 20 years’ imprisonment, which he acknowledged was to be enhanced by 2 years’ imprisonment for the aggravating factor of the international element in the commission of the offence.

Reasons for sentence

7.In sentencing the applicant, the judge acknowledged that the offence had been committed two days prior to delivery of the Court of Appeal’s judgment in the decision of HKSAR v Tam Yi Chun and stated that he approached sentence on the basis of the earlier guidelines set out in the judgment of the Court of Appeal in AG v Ching Kwok Hung [3].  Having observed that the guidelines in that case provided that unlawful trafficking in more than 600 grammes of Ice would attract a starting point of over 18 years,the judge noted that in HKSAR v Stojanovic Milka the Court of Appeal had stipulated a starting point for sentence of 20 years’ imprisonment for an offence of unlawfully trafficking in 1,484 grammes of Ice, which had been enhanced by 2 years’ imprisonment to reflect the international element of importation.[4]  Then, noting that the commission of the offence by the applicant involved more than one kind of dangerous drug, the judge stipulated a starting point for sentence of 21 years’ imprisonment.

8.Having noted that the commission of the offence involved an international element the judge stipulated an enhancement of sentence of 2 years’ imprisonment to reflect that aggravating factor.

9.The judge said that he afforded the applicant a discount of one‑third from the resulting enhanced starting point for sentence of 23 years’ imprisonment.  Accordingly, the sentence imposed on the applicant was 15 years and 4 months’ imprisonment.

Grounds of appeal against sentence

10.The applicant did not articulate any grounds of appeal against sentence in her Form XI, by which she gave notice of application for leave to appeal against sentence.  Although the applicant had been directed by Cheung CJHC on 11 August 2017 to file with the court such written submissions as she wished no less than 28 days before the hearing and she had been advised on 19 September 2017 of today’s hearing date, the applicant filed no submissions.  However, at the hearing she presented the court with two pages of written submissions, in which she referred to the reasons for sentence of Deputy High Court judges in three cases [5], together with the judgment of this Court in one of those cases, and to the judgment of this Court in HKSAR v Stojanovic Milka [6].  The nubof her submission was that in the cases to which she referred the defendants/appellants had received lesser sentences notwithstanding that they had trafficked unlawfully in greater quantities of Ice.

The respondent’s submissions

11.For the respondent, in her written submissions Ms Rosa Lo submitted that both the starting point for sentence and the enhancement of sentence stipulated by the judge was entirely appropriate, as was the discount of sentence that the applicant was afforded for his plea of guilty.  The sentence was not manifestly excessive or wrong in principle.  In her oral submissions, Ms Lo said that the reasons for sentence in the judgments of this Court which the applicant referred were of no assistance to her.  She submitted that one feature in particular that distinguished the applicant’s case from those cases was the fact that the applicant had trafficked in significant quantities of two different dangerous drugs, namely not only 1,410 grammes of Ice but also 150 grammes of heroin hydrochloride.

A consideration of the submissions

12.As this Court has said on numerous occasions reference to the sentences imposed in the lower courts, which are not subject of consideration by this Court, are not of any particular assistance to this Court.  Inevitably, applicants like this applicant focus on cases which support the proposition that another defendant has been sentenced more leniently for unlawfully trafficking in the same or greater amount of the dangerous drugs than that in which the applicant trafficked.  If the case has not been subject to the scrutiny of this court, it may be that not all the reasons for the sentence are readily discernible.  In some cases, it is clear why the defendant has been afforded a lower sentence.  In other cases, it is clear that the sentencing judge has been unduly lenient in sentencing other defendants.  The mere fact that an applicant can point to such cases does not necessarily avail the applicant in an appeal against sentence.

13.In HKSAR v Stojanovic Milka the applicant had pleaded guilty to unlawfully trafficking in 1,484.01 grammes of Ice at Hong Kong International Airport, as she entered Hong Kong from Malaysia (Count 1).  Also, she pleaded guilty to make a false representation to an immigration officer (Count 2) and to using a forged passport to seek to gain entry to Hong Kong (Count 3).  McMahon J stipulated a starting point for sentence in respect of Count 1 of 22 years’ imprisonment, which he enhanced by 2 years’ imprisonment to reflect the aggravating factor of the international dimension in the commission of the offence.  Affording the applicant a discount of one-third for her plea of guilty, the judge sentenced the applicant to 16 years’ imprisonment on Count 1. Having stipulated starting points of 12 months’ imprisonment for each of the offences the subject of Counts 2 and 3, the judge sentenced the applicant to 8 months’ imprisonment on each of those counts.  However, he ordered that six months of the sentence of imprisonment imposed in respect of Count 3 to be served consecutively to the sentence imposed in respect of Count 1.  Accordingly, the total sentence imposed on the applicant was 16 years and 6 months’ imprisonment.

14.In the judgment of the Court of Appeal, the sentence imposed in respect of Count 1 was quashed and a sentence of 14 years and 8 months’ imprisonment imposed in its place.  The other sentences and orders were left unchanged.  In the judgment of the court, Stock VP said that the enhanced starting point of 24 years’ imprisonment was “too high”.  He went on to say:[7]

“ In our judgment, the appropriate starting point before taking into account aggravating features was one of 20 years’ imprisonment; and that the international element warranted an additional two years, which takes one to 22 years’ imprisonment before mitigation.”

15.As Ms Lo pointed out one obviously distinguishing feature between the applicant’s case and that case was the fact that the applicant was trafficking not only in two different kinds of drugs but in significant quantities of each of the dangerous drugs.  Having regard to that fact, as the judge stated he did, we are satisfied that he was entitled to stipulate a starting point for sentence of 21 years’ imprisonment.  No issue was taken, nor could issue be taken, with the enhancement of that sentence by 2 years’ imprisonment.

16.For completeness, we note that the applicant made a number of other submissions in the written submission which she handed to the court at the hearing.  Although she complained that no mention had been made at the sentencing hearing of the fact that she was a drug addict and that she now understood the harm created by dangerous drugs, both matters were referred to by the judge in sentencing.  The judge said “The defendant has written a letter to the court saying that she is now very remorseful and she now understood more about the harm of drugs.  She herself has been a victim to drugs and she had a miscarriage because of it.” [8]  The other matters to which the applicant referred were personal matters of little significance in consideration of the appropriate sentence for such a serious offence.

17.We are satisfied that the sentence imposed on the applicant was entirely appropriate.  Notwithstanding the fact that, entirely understandably, she has been refused the assistance of the Legal Aid Department twice, the last occasion being a refusal dated 30 October 2017, the assistance of the Bar Free Legal Service Scheme and that of the Clinical Legal Education Centre of the University of Hong Kong the applicant has pressed on regardless with her application.  There is no merit whatsoever in the application.  For the reasons that we have given, we refused the application for leave to appeal against sentence.

Ms Rosa Lo, SPP, of the Department of Justice, for the respondent

The applicant appeared in person