HKSAR v. Yau Ka Ming

CACC 191/2019

[2020] HKCA 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 191 OF 2019

(ON APPEAL FROM DCCC NO 922 OF 2018)

_______________

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 10 March 2020

Date of Judgment: 10 March 2020

________________

J U D G M E N T

________________

1.On 6 June 2019, following his conviction on his own plea for the offence of trafficking in a dangerous drug, namely 11.7 grammes of a solid containing 11.2 grammes of cocaine, HH Judge E Yip sentenced the applicant to 3 years and 10 months’ imprisonment.

2.On 20 June 2019, the applicant applied for leave to appeal against his sentence.

3.The applicant has filed perfected grounds of appeal by which it is generally complained that the sentence is wrong in principle or manifestly excessive.  The grounds of appeal are as follows:

Ground 1:    The judge failed to consider the submissions on self-consumption and erred in relying on the particulars of the offence and the summary of the facts to deny hearing this mitigating factor.

Ground 2:    The judge failed to assess the credible and reliable information and material in favour of the applicant and to determine whether a significant proportion of the drugs were to be consumed by him.

Ground 3:    The judge imposed an enhancement of 9 months for his previous offences of drug trafficking which is manifestly excessive.

4.The facts as outlined in the summary of facts and agreed to by the applicant are that at about 11:40 pm on 27 July 2018, the applicant, who was in the company of a female, was intercepted by police officers at Shanghai Street in Yau Ma Tei.  The applicant was searched and found hidden under the waistband of his underwear was a plastic bag, containing the drugs particularised in the charge.  The street value of the drugs was about $13,841.

5.The applicant was arrested for trafficking in a dangerous drug and cautioned.  He said that the drugs were for his own consumption. In a subsequent video-recorded interview, the applicant stated that the drugs were cocaine, which he had purchased from an unknown male for $5,000, at a park near the corner of Shanghai Street and Hamilton Street, one hour before his arrest.  He stated he purchased the drugs for his own consumption, which would sustain him for approximately one week, because he consumed cocaine multiple times each day.  He further stated he put the drugs under the waistband of his underwear after he had purchased them.

6.It was an admitted fact that, at the material times, the applicant was in possession of the drugs for the purpose of unlawful trafficking.

7.At the time of the offence, the applicant was 41 years of age.  He was married with two young daughters.  He worked as a garage maintenance worker, earning about $10,000 each month.  He had an appalling criminal record, consisting of 28 court appearances, involving convictions for a total of 36 charges, including 6 charges of possession of a dangerous drug and 5 charges of trafficking in a dangerous drug.  There were also numerous offences of theft and one of robbery.  In respect of the drug trafficking convictions, the first was on 16 June 1993, for which he was sentenced to a Drug Addiction Treatment Centre; the second on 30 January 2008, for which he was sentenced to 8 months’ imprisonment; the third on 8 September 2009, for which he was sentenced to 4 years’ imprisonment; and the fourth and fifth on 16 April 2013, for which he was sentenced to a total of 9 years and 8 months’ imprisonment, which was reduced on appeal to 6 years’ imprisonment.

8.The mitigation submitted on behalf of the applicant was that half of the drugs were for his own consumption.  Defence counsel relied on the following factors to support this submission.  The applicant had previous convictions for possession of a dangerous drug between 1997 and 2009, for which he was sentenced to DATC in 2009.  The applicant was a drug addict at the time of his arrest and a urine test performed on him showed a positive result for amphetamine and cocaine. The drugs did not consist of a significant quantity and the applicant had the financial means to afford the drugs.  The drugs were in solid form and wrapped in a single package, and could easily be divided in half.  The applicant at the time of the arrest asserted that the drugs were for his own consumption.  The drugs were concealed on his person when he was in the street and he had no paraphernalia for the purpose of trafficking. 

9.This case involves 11.2 grammes of cocaine narcotic.  The judge applied the sentencing guidelines in R v Lau Tak Ming [1990] 2 HKLR 370, which provides that a starting point for trafficking in 10 to 50 grammes of cocaine is 5 to 8 years’ imprisonment.  Accordingly, he adopted a starting point of 5 years’ imprisonment.  It is to be noted that on an arithmetic calculation of the guidelines, the starting point should have been 5 years and 1 month’s imprisonment.  The notional starting point was then enhanced by 9 months to reflect the applicant’s persistent drug trafficking record.  The judge referred to HKSAR v Chan Pui-chi [1999] 2 HKLRD 833.

10.The judge gave no reduction in sentence for the mitigation of self-consumption.  He explained his reasons for rejecting this mitigation as follows:

“11. Counsel in mitigation submits that half of the drugs was for self-use whereas the other half was for trafficking. I find this submission clearly contrary to the Particulars of Offence and also the Summary of Facts, both of which refer to the entire quantity of drugs to be for trafficking. Therefore I do not accept such mitigation.”

11.The judge reduced the notional starting point by one third for the applicant’s guilty plea, which resulted in a sentence of 3 years and 10 months’ imprisonment.

12.Grounds 1 and 2 concerned the issue that some of the drugs were for the applicant’s own consumption and can therefore be dealt with together.  It is contended that the judge failed to consider counsel’s submissions on self-consumption.  That is not correct.  A written submission was submitted to the judge, setting out the mitigation on behalf of the applicant, including that some of the drugs were for the applicant’s own consumption.  The judge engaged counsel about the issue, and explained he could not accept that some of the drugs were for the applicant’s own consumption because of the circumstances of the case.

13.The applicant seeks to have admitted into evidence on appeal a photograph of the drugs.  It is sought to be produced to show the fact that the cocaine appeared to be in two halves, which it is submitted was consistent with the mitigation that half of the drugs were for the applicant’s self-consumption.  This was a matter that was the subject of submissions to the judge, which he rejected.  He took into account that the entire bulk of the drugs were in one package that was surreptitiously tucked away in the applicant’s underwear.[1]

14.The judge in the exercise of his sentencing discretion rejected the contention that some of the drugs were for the applicant’s self-consumption. 

15.I do not find this ground reasonably arguable, as it was open to the judge to reject the applicant’s mitigation in the circumstances of this case.

16.Ground 3 concerned the enhancement of 9 months to the applicant’s sentence for his previous drug trafficking convictions.  It is contended that the 9 months’ enhancement represented an increment of 15% to the starting point of 5 years’ imprisonment, which was disproportionate and excessive.

17.It should be noted that the last set of drug trafficking offences took place on 5 September 2012, which was about 8 months after he had been released for a sentence he received in relation to his third drug trafficking conviction.  He was convicted on his own plea to two counts of trafficking in dangerous drugs, which involved a total of 26.46 grammes of methamphetamine hydrochloride, 10.9 grammes of cocaine and 27.42 grammes of herbal cannabis.  On appeal, his sentence was reduced.  It was held that the appropriate starting point should have been 8 years and 6 months, which was enhanced by 6 months to reflect the applicant’s previous convictions.  After a one-third discount for his guilty plea, his total sentence was reduced to 6 years’ imprisonment.  The applicant’s sentence on this occasion was enhanced by 6 months for his previous convictions, which did not achieve the effect of deterrence as he was involved in drug trafficking again by committing the present case on 27 July 2018, after he was released from prison on 9 September 2016.[2]

18.In the recent case of HKSAR v Har Tsz Yui, unrep., CACC 18/2019, 29 November 2019, Macrae VP, giving the judgment of the court, addressed the issue of the enhancement to be imposed on a recidivist, where he stated: “… 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.”

19.Whilst it is true that the 9 months’ enhancement represents a 15% increment to the starting point adopted by the judge, the applicant’s recidivism was very serious and did deserve an appropriate enhancement to his sentence to address the need for personal and public deterrence.  It was high but I do not think the applicant has cause for complaint.

20.It should be noted that had the judge made an arithmetical calculation of the starting point, it would have been 5 years and 1 month’s imprisonment.  The applicant therefore got the benefit of 1 month off his sentence.  Also, on 13 December 2017, the applicant was sentenced for an offence of using a motor vehicle on a road against third party risks.  A custodial sentence of 4 weeks suspended for 2 years was imposed.  This had the consequence that the present case was committed by the applicant during the operational period of the suspended sentence.  The applicant was treated leniently in that the suspended sentence was not activated by the judge.   In other words, the applicant received the benefit of 1 month off his starting point, and not having an additional sentence of 4 weeks’ imprisonment activated.  

21.The applicant has no cause for complaint in relation to the overall sentence he received.

22.It follows from the above that I do not find the grounds of appeal reasonably arguable and the applicant is refused leave to appeal against his sentence.

23.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Lilly Wong, SPP of the Department of Justice, for the respondent

Mr Victor Lee, instructed by Herbert Tsoi & Partners, assigned by the Director of Legal Aid, for the applicant

[1] Appeal Bundle, 16F – 17E.

[2] HKSAR v Yau Ka Ming, unrep., CACC 144/2013, 23 August 2013.