HKSAR v. Lau Yiu Ming

CACC 92/2019

[2019] HKCA 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 92 OF 2019

(ON APPEAL FROM HCCC NO 190 OF 2018)

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BETWEEN

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J U D G M E N T

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1.The applicant faced two charges of trafficking in a dangerous drug, namely 55.9 grammes of a mixture containing 45.4 grammes of heroin hydrochloride (Charge 1), and 692.17 grammes of a mixture containing 562.01 grammes of heroin hydrochloride (Charge 2) respectively; contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having pleaded guilty to both charges in the magistrates’ court, the applicant was committed to the High Court for sentence. On 1 March 2019, he was sentenced by Madam Justice Toh (“the judge”) to a total term of 13 years and 4 months’ imprisonment.

2.By a Form XI Notice filed on 21 March 2019, the applicant seeks leave to appeal against sentence.

The Summary of Facts

3.On 1 August 2017, at 8:45 pm, whilst the applicant was walking out from an address in Larch Street, Tai Kok Tsui, Kowloon, he was stopped by police officers and taken to the staircase of the 1^st floor of the premises for a search.  In his underpants were found two packets of suspected dangerous drugs, the subject matter of Charge 1.  Upon arrest and caution, the applicant claimed that the “white powder” was for his personal consumption. 

4.With a key seized from the applicant on his person, he was taken to his residence on the 6^th floor of the building for a search.  In a rucksack on a bed were found the following items (the mixture in items (a) – (e) collectively forming the subject matter of Charge 2):

(a)  One packet containing 351 grammes of a mixture containing 285 grammes of heroin hydrochloride;

(b)  One packet containing 297 grammes of a mixture containing 242 grammes of heroin hydrochloride;

(c)  One plastic bag containing 24.3 grammes of a mixture containing 19.3 grammes of heroin hydrochloride;

(d)  One plastic bag containing 16.3 grammes of a mixture containing 12.9 grammes of heroin hydrochloride;

(e)  One plastic bag containing 3.57 grammes of a mixture containing 2.81 grammes of heroin hydrochloride;

(f)  2 sets of electronic scales; and

(g)  Some empty transparent re-sealable plastic bags.

5.Upon further arrest and caution, the applicant accepted that the “white powder” belonged to him.

6.In a subsequent video-recorded interview, the applicant said that he possessed the dangerous drugs found in his rucksack for the purpose of trafficking, claiming also that he had been selling dangerous drugs for some two months, for which he had earned a total of $260,000. 

7.When pleading guilty, the applicant accepted that he was in possession of the entirety of the dangerous drugs in both charges for trafficking, for which he was expecting to earn $80,000 to $100,000.

8.The retail value of the dangerous drugs in both charges were estimated at $475,024. 

The applicant’s background

9.The applicant was 47 years of age at the time of sentence.  He had 21 previous convictions in 15 separate court appearances, including five offences of trafficking in dangerous drugs.

Sentencing

10.The judge noted that the applicable guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKC 197, in respect of the trafficking of between 600 and 1,200 grammes of heroin narcotic, stipulated a starting point of 20 to 23 years’ imprisonment.  By adding the quantity of narcotic in both charges together, amounting to 607.41 grammes, the judge took an overall starting point of 20 years’ imprisonment, which she then decided not to enhance for the applicant’s repeated record of trafficking in dangerous drugs.  She also said that she had borne in mind the matters disclosed in mitigation during proceedings in camera, which if not of any use to the authorities at least indicated “a certain amount of remorse”.

11.The judge then gave the applicant a full one-third discount for his timely pleas of guilty.  In the result, she passed a sentence of 13 years and 4 months’ imprisonment.

12.In addressing the two charges, the judge particularised the individual starting points, and their resulting sentences, which she ordered to run wholly concurrently with each other, namely:

(a)   Charge 1: 6 years’ starting point, reduced by one-third to 4 years’ imprisonment.

(b)   Charge 2: 20 years’ starting point, reduced by one-third to 13 years and 4 months’ imprisonment. 

Grounds of appeal; and the respondent’s initial response

13.In his homemade submissions attached to his Form XI Notice, the applicant stated that, since he was remanded in Lai Chi Kok Reception Centre on 3 August 2017, he had provided information to the authorities but did not ultimately receive any discount on his sentence.  In particular, he stated that he had provided specific information to the ICAC. He criticised his counsel for taking the view that the information provided to the ICAC was not useful, and for not relying on such information as mitigation; whilst at the same time accepting that “ICAC officers had advised [him] not to disclose the particulars of the case to anyone nor tell anyone that [he] had been in contact with ICAC officers including lawyers…”.

14.On 2 July 2019, the Registrar of Criminal Appeals, Master Cheung, directed the respondent to inform the court whether the matters stated in the applicant’s Form XI Notice had been fully raised in the sentencing proceedings, and whether the applicant’s assistance had been of any value.  In response to the Registrar’s directions, Mr Derek Lau, on behalf of the Department of Justice, in a letter dated 19 August 2019, stated that the judge had been informed that, on 10 December 2018, the applicant had provided a non-prejudicial statement to the police, but nothing had ultimately come of it. Furthermore, during mitigation before the judge, counsel for the applicant had not persisted in seeking a reduction of sentence on the basis of the applicant’s assertions made to the ICAC.  For the purpose of this appeal, the respondent, represented by Ms Lily Yip, has reiterated that none of the information or assistance referred to above was of any practical value to the authorities.

15.In his homemade submissions filed with the court on 30 August 2019, which are not marked as confidential, the applicant has repeated his assertions made to the ICAC, specifying the involvement of a particular individual.  The applicant has contended that the usefulness of his information to the ICAC should have been determined by the court, and not by his counsel alone. 

16.In his letter filed with the court on 12 September 2019, the English translation of which runs to eleven pages, the applicant has made further allegations, although most of them were a repeat of his previous allegations.  I shall nevertheless briefly summarise his additional allegations:

(a)  He was trafficking in an unusually large quantity of drugs, which was ten times as much as the usual quantity he had trafficked for the same person on many previous occasions, because that person had asked him to keep the drugs in his residence on a temporary basis.

(b)  His confessions in his video-recorded interview were improperly obtained by police officers who promised him that his girlfriend (who was arrested in his residence) would be released on bail.  The police officers also rushed the interview and hence the name of the person he had named was not mentioned at all.

Respondent’s submissions

17.Ms Yip has submitted that since the applicant did not render any assistance of practical use to the authorities, he should not be entitled to a further discount beyond the one-third discount for his pleas of guilty.  She referred to the investigation diary of the ICAC, which showed that the applicant had been interviewed by the ICAC on 25 August, 4 September, 19 October 2017, 27 February and 28 September 2018 respectively and was informed of the investigation outcome at the last interview.  In addition, a letter dated 12 December 2018, sent from the ICAC to the applicant’s solicitors, stated that the applicant had “only elaborated his complaint verbally and declined to provide any written statement…”.  This appears to be the reason why the respondent considered that his information was devoid of practical value.

18.Ms Yip also submitted that neither the starting point nor the resulting sentence could be criticised as manifestly excessive.

Consideration

19.There can be no complaint about the individual or overall starting points adopted by the judge in the present case.  They were entirely in line with the relevant sentencing guidelines.  Indeed, the applicant may consider himself fortunate that the judge did not enhance that starting point for the fact that these were repeated offences, the applicant having been previously convicted of five different offences of trafficking in dangerous drugs, two of them in the High Court in 2009.

20.As for the purported assistance to the authorities, the fact is that it has not proved of any practical use at all. Moreover, the judge was aware of that fact at the time of sentencing by way of the letter from the ICAC dated 12 December 2018, to which I have referred.  From the material made available to me, I cannot see that the authorities can be criticised for that assessment.  And nor can the applicant’s counsel.  He did not make the decision that the information was of no practical use: the authorities did.  Yet, notwithstanding that it was of no practical use, the judge nevertheless decided that the applicant had exhibited “a certain amount of remorse” by giving the information and, for that reason, did not enhance the starting point for his repeated trafficking convictions.  That was perhaps generous in the circumstances, but it lay within her sentencing discretion to do so.  Accordingly, the applicant did in fact derive some benefit from the fact of providing information, valueless though it was.  He was able to avoid a substantial enhancement for being a repeated offender of serious offences of drug trafficking, which enhancement could well have been in the region of 12 to 18 months’ imprisonment.

21.I can see no reasonable grounds of appeal and no merit whatsoever in the attack on the applicant’s counsel.  I should also add that by his complaint concerning his video-recorded interview, the applicant is not seeking to appeal against his conviction, which was the result of his pleading guilty whilst being legally represented.  The application is accordingly refused.

22.I should advise the applicant that he has the right to renew his application for leave to appeal against sentence to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Ms Lily Yip PP, of the Department of Justice, for the Respondent

The Applicant appeared in person