HKSAR v. Har Tsz Yui

CACC 18 /2019

[2019] HKCA 1336

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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REASONS FOR JUDGMENT

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

1.By leave of the Single Judge granted on 21 August 2019, the appellant appeals against his sentence of 3 years’ (or 36 months’) imprisonment imposed by HH Judge Douglas Yau (“the judge”) on 8 January 2019, following his plea of guilty on the same day to a single charge of trafficking in a dangerous drug, namely 14.09 grammes of a powder containing 9.86 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.On 21 November 2019, having heard argument, we allowed the appeal and reduced the sentence from 3 years’ imprisonment to 2 years and 10 months’ imprisonment.  We indicated that we would hand down our reasons in due course.  These are our reasons.

The Amended Summary of Facts admitted by the appellant

3.On 7 February 2018, at about 9:15 pm, the appellant was seen walking outside No 159 Tai Kok Tsui Road, Kowloon, where PC 15427 was on patrol with his team members.  He was observed to be acting nervously. Accordingly, the appellant was intercepted by PC 15427 who thereupon found on him 11 plastic bags containing 14.09 grammes of a powder which were subsequently confirmed to be 9.86 grammes of ketamine with a retail value of $7,791.77.  Also found on him were the sum of $11,703.10 in cash and two mobile telephones.  The appellant was arrested and cautioned, whereupon he claimed that the ketamine was for his own consumption and asked for a chance.

Mitigation

4.The appellant was single and 44 years of age. It was submitted that in the course of his employment as a driver in 2014, the appellant had been injured, as a result of which he was unable to drive.  In those circumstances, a male friend had suggested that he deliver drugs for him, for which he would be given some ketamine to relieve his pain.

5.At mitigation, no issue was taken with the enhancement of sentence for the appellant’s previous convictions, amongst which were two appearances in respect of a total of three offences of trafficking in dangerous drugs and one offence of conspiracy to manufacture dangerous drugs. On 30 October 1996, the appellant had been sentenced in the High Court to an overall sentence of 7 years’ imprisonment for two offences of trafficking in dangerous drugs and one offence of conspiracy to manufacture dangerous drugs; whilst on 11 December 2008, the appellant had been sentenced, again in the High Court, to 9½ years’ imprisonment for one offence of trafficking in dangerous drugs.  He had also been dealt with in the magistrate’s court over a period of some 30 years for various offences of dishonesty and violence.

Reasons for sentence

6.In passing sentence, the judge considered the guidelines laid down by this Court in Secretary for Justice v Hii Siew Cheng^[1], where for trafficking in more than 1 gramme and up to 10 grammes of ketamine narcotic a starting point of between 2 and 4 years’ imprisonment was stipulated.  Here, in respect of 9.86 grammes of ketamine narcotic, the judge adopted a starting point of 47 months’ imprisonment.

7.Since the offence had been committed slightly more than 3½ years after the appellant’s last discharge from a substantial prison sentence for the very same offence, the judge enhanced the starting point by 7 months to 54 months’ imprisonment^[2].

8.The judge pointed out that the defence contention that the appellant was using ketamine to relieve his pain was not a valid consideration.  The judge said^[3]:

“It was never part of [the defence] 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.”

9.In the result, the judge gave the appellant a full one-third discount for his timely plea of guilty and passed a sentence of 36 months’ imprisonment.

Ground of appeal

10.Ms Money Lo, on behalf of the appellant, accepted that we are not concerned in this appeal with whether the judge was correct to enhance the starting point as a matter of sentencing principle, given the appellant’s criminal record.  The only issue is whether the enhancement of 7 months’ imprisonment was disproportionate to the original starting point of 47 months’ imprisonment arrived at arithmetically for the quantity concerned, given that it represented a 14.89% increase of the starting point. 

11.Ms Lo submitted that the level of enhancement should not have gone beyond a 10% increase of the original starting point.  She defied the respondent to produce a case where, in the context of drug cases, an enhancement of more than 10% for previous similar convictions, has ever been imposed in the District or High Court.  In particular, she referred to the decision in HKSAR v Lau Tsz Ho[4], where this Court reduced an enhancement for the applicant’s previous convictions of 14 months (representing an increase of the starting point by an identical 14.89%) to 6 months’ imprisonment (representing an increase of 6.38%), in respect of an offence of trafficking in 28.48 grammes of methamphetamine hydrochloride.  She further relied upon the decision of HKSAR v Le Huu Nghi[5], where this Court, in a case of trafficking in 13.65 grammes of heroin narcotic, considered an enhancement of almost 10% for similar trafficking convictions to be excessive.

12.Ms Lo made the point that while sentences in trafficking cases are primarily based on the quantities of dangerous drugs involved, so are enhancements, for example, for the international element in trafficking across the border into or out of Hong Kong: see HKSAR v Chung Ping Kun[6]; HKSAR v Chan Ka Yiu & Ors[7].

Respondent’s submissions

13.Ms Claudia Ng, for the respondent, submitted that the present enhancement had to be viewed globally, and not simply in terms of percentages.  A greater enhancement was warranted for more serious offences, where there was a significant need to deter the defendant from committing the same offence again.  Given the emphasis which is placed on individual deterrence, reference to percentages in other cases was not helpful.

14.In response to the argument that sentencing in dangerous drugs cases is primarily an arithmetical exercise, including any enhancement for the international element, Ms Ng submitted that the Courts have so far eschewed the need to impose specific enhancements for sentences on Form 8 recognizance holders, but also pointed out that the Court in HKSAR v Ali Saif[8] had said that:

“…we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious case of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants”.

Discussion

15.It is clear that it was open to the judge to enhance the sentence of the appellant because of the repeated nature of his offending in respect of serious offences.  As this Court has said in HKSAR v Lau Tsz Ho[9]:

“It is well established that the fact that a defendant is a “persistent re-offender” is an aggravating factor that entitles the court to adjust upward the appropriate starting point of his sentence (see R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830).  The reason for this is because the applicant has shown by his conduct a need for greater personal deterrence and a need for the court to give greater prominence in its sentence to protection of the community from the offender’s criminal activity.  It has nothing to do with again punishing the offender for past crimes.  Of course, if the enhancement is excessive then the aggrieved offender may well feel that that is precisely what has happened to him.”

16.Although we are concerned with a case of trafficking in dangerous drugs, and Ms Ng is undoubtedly right that sentences are primarily arithmetical exercises based upon the quantity of narcotic being trafficked or brought across the border, the aggravating feature of a defendant being a repeat offender, whatever the offence, is not susceptible of the arithmetical application of percentage enhancements.  Much will depend on the nature and seriousness of the offence, the extent of the defendant’s criminal record and the need for personal and public deterrence. 

17.A minimum enhancement might make sense for serious kinds of repeated offence or for offences meriting longer sentences: by the same token, a minimum enhancement could also lead to distorted sentences for less serious repeat offences.  We can also foresee that an enhancement might be less for the repeat offender with one or two previous similar convictions but greater for the repeat offender with three or four or more previous similar convictions.  A long period since a previous similar offence might indicate that a defendant is trying to change his life around and the need for personal and public deterrence correspondingly less: repeated similar offences within a short time of being released from prison might indicate that the defendant is making no effort to change his ways.

18.Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which a judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.

19.As Deputy Judge McMahon put the matter in HKSAR v Lam Kwai Wa[10], a Magistracy Appeal:

“It seems to me that, as a matter of logic, the level of enhancement must depend on a number of factors peculiar to a particular defendant in the offence he has committed. Those factors would include primarily, firstly an assessment of the gravity of the category of offence involved and secondly an assessment of the degree of the defendant’s persistence as demonstrated by his criminal record.

Obviously the more grave the offence the greater the importance which may be attached to considerations of protection of the public by prevention of future offending by the particular defendant. The greater persistence the defendant has shown in committing the particular category of offence then the greater again the justification for enhancement of penalty so as to discourage him from future offences of that sort.

Nevertheless, in my view two things must not be lost sight of.  The original starting point of sentence must be proportionate to the actual offence, and the degree of enhancement must be reasonable.”

We respectfully agree.  In that case, the magistrate had enhanced the starting point he would otherwise have adopted for a case of shop theft of two cakes, where the appellant had 31 previous convictions including 11 theft related offences, by 100%.  Deputy Judge McMahon allowed the appeal and reduced the enhancement for the appellant’s previous offending to some 25% above the appropriate starting point.

20.In Le Huu Nghi[11], the Court similarly held:

“Unless the trial judge was obviously erroneous in exercising his or her discretion, the Court of Appeal should not interfere. However, the enhancement of sentence should be in reasonable proportion to the basic sentence and the total should not be excessive.”

21.When we look at the facts of the present appeal, it is true that the enhancement of 7 months’ imprisonment adopted by the judge in respect of a serious offence of trafficking in dangerous drugs, for which the appellant had two relevant and similar previous convictions, might not by itself be viewed as particularly lengthy, although it amounted to a 14.89% increase of the starting point.  However, if we ask ourselves what the enhanced starting point represented in terms of quantity under the ketamine guidelines in Hii Siew Cheng, 54 months’ (or 4½ years’) imprisonment would have been the appropriate starting point, on a strictly arithmetical basis, for trafficking in 20 grammes of ketamine narcotic; which would have been more than double the quantity actually found in the appellant’s possession.  Since the appellant has in fact been sentenced on the basis of trafficking in double the amount he was actually indicted for, we think there is a valid argument that the enhancement was not proportionate to the sentence for the basic offence and not, therefore, reasonable.

22.In all the circumstances, we are persuaded that an appropriate enhancement in the present case, given the seriousness of the offence and the extent of his record of similar offending, ought to have been 4 months’ imprisonment.  Accordingly, the notional sentence after trial should have been 51 months’ imprisonment.  Giving the appellant a full one‑third discount for his early plea, the resultant sentence would have been 34 months’ (or 2 years and 10 months’) imprisonment.

23.The appellant’s sentence is accordingly reduced from 3 years’ imprisonment to 2 years and 10 months’ imprisonment.  To that extent this appeal is allowed.

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 Appellant

[1] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[2] Leave to appeal was not granted on the appellant’s other ground of appeal that the judge was wrong to enhance the sentence for previous similar offences per se.

[3] Reasons for Sentence, para 16.

[4] HKSAR v Lau Tsz Ho (Unrep., CACC 144/2014, 11 December 2014).

[5] HKSAR v Le Huu Nghi (Unrep., CACC 31/2017, 22 September 2017).

[6] HKSAR v Chung Ping Kun [2014] 6 HKC 106.

[7] HKSAR v Chan Ka Yiu & Ors [2018] 4 HKC 591.

[8] HKSAR v Ali Saif [2018] 6 HKC 19.

[9] HKSAR v Lau Tsz Ho (Unrep., CACC 144/2014, 11 December 2014), at para 18.

[10] HKSAR v Lam Kwai Wa (Unrep., HCMA 1078/2002, 13 December 2002), at paras 17-19.

[11] HKSAR v Le Huu Nghi (Unrep., CACC 31/2017, 22 September 2017), at para 10.