HKSAR v. Leung Pui Hang Chili

CACC 75 /2019

[2020] HKCA 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 75 OF 2019

(ON APPEAL FROM HCCC NO 183 OF 2018)

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J U D G M E N T

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1.The applicant pleaded guilty before a magistrate on 28 May 2018 and was thereby committed to the High Court for sentence. On 25 February 2019, he appeared before Barnes J (“the judge”) and was sentenced to 9 years’ imprisonment. From that sentence he now seeks leave to appeal.

2.The facts, which were admitted by the applicant, were that on 21 August 2017, police officers approached a private car, of which he was the owner and driver, which had stopped in Bute Street, Mong Kok in Kowloon. 

3.The vehicle was searched and, in the foot well of the driver’s seat, a plastic bag with 499 grammes of a powder containing 226 grammes of ketamine was found inside a paper box; together with two other plastic bags inside a moon cake box, one with 461 grammes of a powder containing 286 grammes of ketamine, the other with 495 grammes of a powder containing 336 grammes of ketamine.  The applicant was arrested and, under caution, admitted delivering the dangerous drugs, which he knew to be ketamine, for reward.

4.The total amount of ketamine narcotic for sentencing purposes was 848 grammes, with an estimated street value of HK$576,180.

5.The applicant was 36 years of age at the time of sentence and had been before the courts on some 12 occasions for offences which included criminal damage, common assault, criminal intimidation, possession of offensive weapon, taking a conveyance without authority, using a false instrument, obtaining property by deception and trafficking in dangerous drugs. Although it was a bad record, which also included various breaches of Probation Orders, it is fair to observe that all of the offences were dealt with in the magistrates’ courts.  For the trafficking in dangerous drugs charge, the applicant was sent to a Drug Addiction Treatment Centre.

6.The only real factor of mitigation taken into account by the judge in sentencing was the applicant’s plea of guilty entered at the earliest possible stage, namely at the magistrate’s court.  Although the applicant’s parents had health issues, they could not be said to be exceptional.  

7.I should record that on 30 November 2018, the applicant had indicated that he wanted to provide assistance to the authorities and requested to see the police.  Accordingly, the case was adjourned and, on 4 January 2019, he gave a non-prejudicial statement to the police.  

8.However, the fact is that no practical assistance was derived from the applicant’s information and no mention of any assistance was, therefore, made by the judge during sentence, although she was fully aware of what the applicant had told the police.

9.The judge adopted a starting point for sentence of 13½ years’ imprisonment for 848 grammes of ketamine narcotic, gave him a full one‑third discount for his plea and passed the sentence of 9 years’ imprisonment which is now the subject of appeal.

10.If one were to be strictly arithmetical about the sentence, in accordance with the guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the starting point in respect of 848 grammes of ketamine narcotic should have been 13 years and 3 months’ imprisonment.  However, the applicant had a bad criminal record, albeit for comparatively minor offences of violence and dishonesty, but also one conviction for trafficking in dangerous drugs.  I do not think it is reasonably arguable that the judge’s adoption of a slightly higher starting point than the arithmetical application of guidelines to quantity warranted could be said, in the circumstances and given her undoubted margin of discretion, to be manifestly excessive and/or wrong in principle.

11.I am not persuaded that there is any merit in the offer of assistance.  First, as Mr Kuan for the respondent points out, the applicant’s non-prejudicial statement was made more than 16 months after his arrest and there was nothing to support the assertions he made.  Secondly, such assistance as he gave was of no practical use.  I should say that I have checked the position this morning with Mr Kuan, lest there has been any change since sentence, and he has confirmed that the information has not been of any use.

12.The application for leave to appeal against sentence is refused.  The applicant is duly advised that he has the right to renew his application for leave to the Court of Appeal, but he should also be 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.

Mr Franco Kuan SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person