HKSAR v. Har Tsz Yui

CACC 18/2019

[2019] HKCA 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 18 OF 2019

(ON APPEAL FROM DCCC NO 393 OF 2018)

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Before: Hon Macrae VP in Court

Date of Hearing: 21 August 2019

Date of Judgment: 21 August 2019

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J U D G M E N T

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1.On 8 January 2019, the applicant pleaded guilty in the District Court to a charge of trafficking in a dangerous drug, namely 9.86 grammes of ketamine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, he was sentenced by HH Judge Douglas Yau (“the judge”) to 36 months’ imprisonment.

2.On 22 January 2019, the applicant filed a Form XI Notice applying for leave to appeal against sentence.

Facts admitted by the applicant

3.At 9:15 pm on 7 February 2018, whilst on patrol with other members of his team, PC 15427 saw the applicant walking outside No. 159 Tai Kok Tsui Road, Kowloon and looking nervous.  PC 15427 accordingly intercepted the applicant.

4.Upon a search of his person, 11 plastic bags containing 14.09 grammes of a powder, which were subsequently confirmed to be 9.86 grammes of ketamine were found on the applicant, the estimated retail value of which was $7,791.77.  Also found on him were $11,703.10 in cash and two mobile telephones.

5.Upon arrest and caution, the applicant claimed that the ketamine was for his own consumption and asked for a chance.

Mitigation

6.The applicant was single and 44 years of age, having received education up to Form One level.  It was said on his behalf that after being discharged from Hei Ling Chau Correctional Institution on 23 July 2014 (his previous convictions are discussed below), he worked as a driver earning $15,000 per month, but was subsequently injured in the course of his employment.  As a result, he was unable to drive anymore because of the pain associated with his injury.  A friend of the applicant’s had then proposed that he deliver drugs for him, for which he would be given drugs to relieve his pain^[1].

The applicant’s previous convictions^[2]

7.The applicant had 7 previous convictions involving 13 offences, amongst which were three related to trafficking in dangerous drugs.  On 30 October 1996, he had been sentenced in HCCC 96/1996 to a total term of 7 years’ imprisonment in respect of two counts of trafficking in dangerous drugs^[3] and one count of conspiracy to manufacture dangerous drugs, the drugs in question being heroin; he would have been released, assuming good behaviour, sometime in June 2001, although I am informed that defence counsel’s instructions this morning are that he was in fact released sometime in the year 2000.  On 11 December 2008, he was sentenced in HCCC 173/2008 to 9½ years’ imprisonment in respect of a single count of trafficking in dangerous drugs, the drugs in question being cocaine; he was released on 23 July 2014.  At trial, defence counsel accepted that the applicant’s previous convictions in trafficking could be viewed by the court as an aggravating factor^[4].

Reasons for sentence

8.The judge noted that the Court of Appeal had stated in Secretary for Justice v Hii Siew Cheng^[5]that the applicable tariff for trafficking in more than 1 gramme and up to 10 grammes of ketamine would attract a starting point of between 2 and 4 years’ imprisonment.  For the 9.86 grammes of ketamine narcotic found on the applicant, the judge adopted a starting point of 47 months’ imprisonment.

9.The judge regarded it as an aggravating factor that the applicant “had received lengthy sentences before for committing the same offence”, although he bore in mind that the present offence was committed by the applicant slightly more than 3½ years after his last discharge from prison^[6], for which factor he enhanced the starting point by 7 months to 54 months’ imprisonment. 

10.In respect of the contention advanced in mitigation that the applicant was using ketamine to relieve his pain, the judge said^[7]:

“It was never part of [defence counsel’s] case that any of the ketamine that the defendant was found in possession of was for his self-consumption. The only mitigating factor is the defendant’s timely guilty plea.”

11.Giving the applicant a full one-third discount for his timely plea of guilty, the judge passed a sentence of 36 months’ imprisonment.

Grounds of appeal

12.Ms Lo, counsel for the applicant in this application but not below, has advanced two grounds of appeal against sentence.  By Ground 1, she submitted that the judge was wrong to enhance the sentence of the applicant on the basis of his previous convictions for trafficking, when he had not committed the present offence until some 3½ years after his discharge.  She relied for this proposition on the judgment of the Court in HKSAR v Li Wai Keung^[8]. 

13.By Ground 2, she argued that, even if the judge had been correct to enhance the starting point, an enhancement of 7 months, which represented a 14.89% increase in sentence, was disproportionate to the original starting point.  Ms Lo has referred to no less than 15 decisions (four from the Court of Appeal and eleven from the High Court) in support of her contention that the usual enhancement for a defendant who has previously trafficked in dangerous drugs does not normally exceed 10%.  Indeed, she has defied the respondent to produce any authority or case where more than a 10% enhancement for this factor has been approved.

Respondent’s submissions

14.Ms Ng, on behalf of the respondent, argued that the level of enhancement must depend on a number of factors peculiar to a particular defendant and the offence he has committed.  Further, the reference to Li Wai Keung was misplaced, since that appellant’s first conviction for trafficking in dangerous drugs had taken place 21 years earlier, and he had not been convicted of any offence at all between 1994 and 2003.  She submits that the enhancement of 7 months was not excessive having regard to the nature and seriousness of his previous trafficking convictions. 

Consideration

15.Ground 1 does not impress me as reasonably arguable.  The applicant had two previous and very serious High Court convictions for trafficking in dangerous drugs, the last one meriting a substantial sentence of 9½ years’ imprisonment, from which the applicant was released in July 2014.  Clearly, he has not learned from experience and is properly to be described as a persistent drug trafficking offender.  As Ms Ng submitted, a single relevant previous conviction for drug trafficking would constitute grounds for enhancement when sentencing for a subsequent similar offence: see HKSAR v Chau Hon Kwong^[9], at paras 31 to 33.

16.However, Ground 2, which concerns the length of such enhancement for being a persistent offender, does seem, on the basis of the authorities and sentences at first instance to which Ms Lo has referred, including in particular the decision of the Chinese division of the Court in 香港特別行政區訴黎友誼^[10], to be reasonably arguable.

Conclusion

17.Accordingly, I shall grant leave to appeal against sentence in respect of Ground 2 of the Perfected Grounds of Appeal.  I refuse leave to appeal on Ground 1.

Ms Claudia Ng SPP, of the Department of Justice, for the Respondent

Ms Money Lo, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the Applicant