HKSAR v. Ho Pak Hong

CACC 153/2019

[2020] HKCA 958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 153 OF 2019

(ON APPEAL FROM HCCC 244/2017 & 235/2018 (Consolidated))

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Before:  Hon McWalters JA in Court

Dates of Hearing:  14 July, 9 October and 19 November 2020

Date of Judgment:  19 November 2020

Date of Reasons for Judgment:  19 November 2020

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REASONS FOR JUDGMENT

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Introduction

1.The applicant faced two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Both offences took place on 17 November 2016 at Ka Hay Building, No 19 Tseng Choi Street, Tuen Mun, New Territories.

2.The first count referred to 426 grammes of ketamine that was found in various sling bags inside Room A3 (“Room A3”) on the 14^th floor of this building to which access was gained by keys found on the applicant.  The second count, a joint charge with one Cheung Chi Ho (“Cheung”), referred to 373 grammes of ketamine that was subsequently found in the possession of Cheung as he was intercepted and searched by the police officers in the street in front of the building.  It was averred that the second count took place on the 12^th floor of the building.  There was no dispute that the second count took place before the first count chronologically.     

3.The applicant pleaded not guilty to both counts and stood trial before D’Almada Remedios J (“the judge”) together with a jury at the Court of First Instance.  On 6 May 2019 he was convicted of both counts and, on the following day, he was sentenced to a total term of 14 years’ imprisonment.  He applied for leave to appeal against both his convictions and sentences.    

4.During the hearings on 14 July and 9 October it became apparent that further enquiries would have to be made so that the court could be fully apprised of certain matters arising from the way the admitted facts dealt with the fingerprint evidence.  

5.At the hearing on 19 November 2020 I refused the applicant’s applications and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The prosecution case

6.On 17 November 2016, whilst the police were on an anti-dangerous drug operation in Tuen Mun, they followed Cheung, a school pupil who was then only 15 years of age, as he left his house at Tai Hing Estate and travelled to Ka Hay Building.  Cheung was observed to enter the building empty-handed yet shortly afterwards, when he exited the building, he was carrying a “Watsons” plastic bag in his hand.

7.At about 8:15 pm, just as Cheung was about to board a taxi, he was intercepted by the police.  Upon search of the “Watsons” plastic bag, the police found four resealable bags, of the brand “Glad”.  The bags had yellow and green rims at their openings and contained 373 grammes of ketamine and two pieces of paper bearing a person’s handwriting of phone numbers and locations on them.  This quantity of ketamine was the subject of Count 2 and it had an estimated value of HK$132,700.  Under caution, Cheung told the police officers that he had obtained the drugs on the 12^th floor of the building “from his boss” who was later identified as the applicant.  He said he did not know the applicant by name but was able to show the police a photograph of the applicant on his mobile phone.  

8.After the officers arrested Cheung, they lay in wait outside Ka Hay Building.  At about 8:50 pm, they intercepted the applicant and his girlfriend, Yau Choi Yi (“Yau”) as they exited from the building and took them to Room A3 for a search.  At that time the police also found on the applicant keys to Room A3 but the applicant refused to open the door with his keys.  Eventually the police gained entry to Room A3 using those keys, as witnessed by a Chief Inspector of Police.  They found a total of 426 grammes of ketamine in five plastic bags, also of the brand “Glad”, and also with green and yellow rims at their openings, on the bed, and in two resealable “Glad” bags that had red rims in the cabinet underneath the bed.  This ketamine was the subject of Count 1 and had an estimated value of HK$151,656.    

9.Under caution for drug trafficking the applicant said in Punti, “I only wanted to earn some money, so I hid the ‘K-Chai’ there for someone.”  At one stage the applicant, whilst being guarded by his arresting officer, requested to see Yau but this request was refused.  He then pushed the arresting officer down and managed to throw a bag of the drugs out of the window, but this bag was eventually retrieved by the police from the podium downstairs.  The applicant was eventually subdued and was arrested for obstructing a police officer.

10.In the video-recorded interview, of which both voluntariness and truth were challenged, the applicant admitted that he hid the ketamine for his friend “Ah Chun” who told him to rent Room A3 for that purpose.  He said he acted on Ah Chun’s instructions in collecting ketamine at Mong Kok.  He said he was the only person who had access to Room A3 and Yau had nothing to do with the drugs in it.  He refused to answer questions concerning Cheung’s case and their relationship. 

11.There was no challenge to the data extracted from the respective mobile phones of the applicant and Cheung, which recorded conversations between the two since 8 November 2016 leading up to their arrests. The applicant’s telephone record showed that at or about 4:30 pm on 17 November 2016, four outgoing calls were made from the applicant’s mobile phone to four different numbers that were written on the two pieces of papers found in Cheung’s “Watsons” bag.      

12.It was an admitted fact that the tenancy of Room A3 was made in the name of Yau.  At trial, Yau testified for the prosecution and said she was 21 years old at that time and they had been dating for 2 months.  She used her name to rent Room A3 just two days previously at the applicant’s request because he claimed he wanted to move out with her yet he had not reached 18 years old at that time.  She said the rent was paid by him and she never had the possession of the single bunch of keys given by the landlord.  They had not moved in as the applicant said he wanted to improve it first.  She denied she was running a business at Room A3 and that she had asked the applicant to arrange deliveries for her in her business.  She was able to recognise the handwriting on the papers in the “Watsons” bag as being the applicant’s.  She also denied being in collusion with the police to fabricate a case against the applicant for the present offences. 

13.It was an admitted fact that Cheung had been charged with trafficking in the same batch of ketamine as was particularised in Count 2 and had pleaded guilty to this charge and been sentenced to 5 years and 8 months’ imprisonment.  At trial Cheung also testified for the prosecution and it was his evidence that he had met the applicant through the introduction of a friend, and he was eager to make money by delivering things to the applicant’s clients.  He said they would contact each other by phone and WhatsApp and he only knew the applicant as “Boss”.  On that day, he was to collect and deliver the drugs for the applicant at various locations in the sequence stated on the two pieces of papers.  He said he received the drugs from the applicant at the 12^th floor of the Building.  He admitted that he hoped to receive a substantial reduction in his sentence by testifying against the applicant. 

14.It was an admitted fact that a fingerprint had been lifted from inside Room A3 but in respect of this fingerprint the admitted fact stated:

“Fingerprint examination was not carried out.”[1]

15.Another admitted fact revealed that the Government Laboratory “was requested to preserve all the plastic bags containing the dangerous drugs found on 17 November 2016 for fingerprint examination.”[2] The admitted facts, however, was silent on whether any fingerprint examination subsequently took place and, if it did, the result of that examination.

The defence case

16.The defence case was one of a total denial of any involvement with or knowledge of the dangerous drugs combined with an allegation that there was collusion between the police on the one part, and Yau and Cheung on the other, both of whom clearly had motives to lie.  In relation to Count 1, it was his case that the drugs were planted in Room A3 by the police.  In relation to Count 2, it was his case that although he passed the “Watsons” bag to Cheung, he did not know it contained drugs and he had received it from Yau, and had passed it to Cheung in accordance with her instructions.     

17.It was also the defence case that he did not make any admission in Room A3, he was made to sign the police notebook and he had been coached into answering questions in the VRI because the police had assaulted, induced and threatened him beforehand. 

18.The applicant did not testify but called his grandmother as a defence witness.  She testified that both the applicant and Yau were taken back to the applicant’s home in Choi Hung after their arrest and she saw the applicant smoke a cigarette and have a talk with Yau.      

The mitigation

19.The applicant was 19 years old at the time of the sentencing and had two convictions, one for handling stolen goods in April 2013 and one for possession of dangerous drugs in December 2016[3], for which he was sentenced to DATC.  As he had just turned 17 years old at the time of the present offences, he was also a minor under the Interpretation and General Clauses Ordinance, Cap 1.  His counsel submitted to the judge that section 56A of the Dangerous Drugs Ordinance, Cap 134, which provided for courts to enhance the sentence of drug traffickers who used a minor in their drug trafficking activities, would not apply, although it was accepted that on the evidence the applicant was the recruiter of Cheung and occupied a role higher in the drug trafficking chain. 

20.The defence counsel also invited the judge to treat both offences as a single transaction of trafficking in 799 grammes of ketamine which would warrant a starting point somewhere between 12 to 14 years. 

The judge’s Reasons for Sentence

21.Having referred to the facts of the case and the applicant’s criminal record, the judge came to the view that, notwithstanding the applicant was only about 2 years older than Cheung, he was acting as a recruiter of minors and was much more mature than Cheung, an assessment which she made after observing Cheung testify in court and the applicant testify on the voire dire. 

22.The judge then directed herself in accordance with Secretary for Justice v Hii Siew Cheng[4], and decided to combine the amount of ketamine from both charges to arrive at a starting point of 13 years’ imprisonment for trafficking in 799 grammes of ketamine.  She referred to HKSAR v Abdallah[5] where the Court of Appeal discussed what would constitute an aggravating factor for this offence and what amount of enhancement might be appropriate.  She enhanced the initial starting point by one year to reflect the applicant’s recruitment of a minor and this resulted in a final starting point of 14 years’ imprisonment for the total quantity of narcotic. 

23.The judge then moved on to consider what sentences she should impose for each count.  On Count 1, she sentenced the applicant to 10 years and 3 months’ imprisonment.  On Count 2, she sentenced him to 9 years and 6 months’ imprisonment which she then enhanced by one year for the aggravating factor of the applicant using a minor in his trafficking activity, resulting in 10 years and 6 months’ imprisonment.  She then applied the totality principle and held that 3 years and 6 months of Count 1 were to run consecutively to the sentence in Count 2.  By this route she reached a total sentence of 14 years’ imprisonment.

The grounds of appeal against convictions and sentences

24.The applicant was unrepresented in the present hearing.  In his Form XI, and in three letters dated 23 October 2019, 24 December 2019 and 11 March 2020 he raised the following complaints:

(1)  the judge forced the prosecuting counsel to ask further questions of Cheung in his examination-in-chief notwithstanding that the prosecuting counsel had no further question to ask of this witness, and eventually took it upon herself to ask Cheung questions.  By so doing the judge had improperly stepped into the arena.  In support of this ground, the applicant relied on the judgment in HKSAR v Lau Hong[6];

(2)  the defence made a no case to answer submission based on the discrepancies and omissions in the prosecution witnesses’ testimonies but the judge ruled against the defence without giving reasons;

(3)  the judge failed to highlight to the jury the evidence favourable to the defence and the doubts in the prosecution case and did not explain to them that the benefit of any doubt should go to the applicant;

(4)  the testimonies of the prosecution witnesses who were themselves also convicted persons were incredible; and

(5)  the sentences passed were excessive as a result of the judge erroneously enhancing her starting point for the reason that the applicant recruited a minor to assist him in his drug trafficking.  It was an error because the applicant was a minor himself and did not know about Cheung’s age and so section 56A did not apply to him.

25.At the hearing of the application on 14 July 2020 the applicant raised a number of new complaints.

26.He first queried the judge’s directions on the fingerprint evidence which had been made the subject of admitted facts.

27.He next complained that in her summing-up the judge made insufficient reference to the apparent inconsistency between the evidence of PC9394 and the CCTV on the question of who escorted the applicant from the place where he was arrested to Room A3. 

28.He also complained that the judge did not mention to the jury that the fact that Yau passed the “Watsons” bags to the applicant before it was given to Cheung could allow of the inference that Yau was using the applicant to distance herself from Cheung.

29.Finally, he complained that the judge informed the jury, incorrectly, that Yau’s sentence was 13 months’ imprisonment when in fact it was 30 months’ imprisonment. 

The respondent’s submissions

30.Mr Felix Tam appeared for the respondent.  He opposed the present application for leave to appeal against both convictions and sentences and submitted that none of the applicant’s complaints had any merit.

31.In relation to the application for leave to appeal against convictions, Mr Tam submitted that no unfairness or bias by the judge could be demonstrated.  Also in the summing-up she had properly directed the jury on the various important issues and on how to deal with discrepancies and omissions by the prosecution witnesses, and to approach the testimonies of tainted witnesses with care. 

32.In respect of the fingerprint evidence Mr Tam accepted that the admitted facts were incomplete and, in one respect, incorrect, but submitted that no prejudice flowed to the applicant as a result of the non-disclosure that had taken place.   

33.In relation to the application for leave to appeal against the sentences, Mr Tam added that the judge did not sentence the applicant on the strength of section 56A of Cap 134.  Instead, it was apparent from her exchange with the defence counsel that she must have been well aware of the limitation of that section hence decided to enhance her starting point in accordance with Abdallah where the Court of Appeal recognises the use of minors is clearly an aggravating factor.  Mr Tam submitted such an enhancement is one within the judge’s discretion to make. 

Discussion

34.I considered all of the applicant’s complaints and concluded that none of them are reasonably arguable. 

35.In respect of the first ground of appeal, it is apparent from the transcripts of Cheung’s testimony that the judge had to intervene at times in order to clarify the evidence of the witness, or to prevent inappropriate questioning or to ensure that the witness understood the question or to avoid confusion by the jury.  It is necessary to bear in mind that Cheung was only 15 years old at the date of the offence and 19 years old at the time of this trial and it appears from the transcript that he may have had difficulty in understanding the questions posed by the prosecuting counsel.

36.None of the judge’s interventions were intended to benefit or favour the prosecution and none had that effect.  In fact it was quite the opposite.  It is clear from the transcript that there was considerable tension between the prosecutor and the judge and, if anything, the judge’s interventions may have had an inhibiting effect on the prosecutor’s examination of the witness.  This ground is not reasonably arguable.

37.In relation to the second ground of appeal, the judge gave her ruling having heard detailed submissions from both counsel.  That defence counsel even bothered to make this submission is extraordinary.  The prosecution case was overwhelming, consisting as it did of admissions, accomplice evidence and even an attempt by the applicant to destroy evidence.  This was a wholly pointless submission that never had any chance of succeeding. 

38.Nevertheless, it is clear that the judge courteously entertained the submission and then provided reasons for rejecting it.  Her reasons reveal that she was alive to the defence arguments on the prosecution case and the issues before the jury, and that in making her ruling she directed herself in accordance with the correct legal principles.  I detected nothing illogical, irrational, erroneous or unreasonable in her ruling and the reasons she gave for her ruling were adequate for the purpose they had to serve.  This ground is also not reasonably arguable.

39.In respect of the third ground of appeal, I note that the judge properly reminded the jury of the major inconsistencies and omissions of the prosecution witnesses and correctly directed them on how these matters should be resolved by them.  Also, she highlighted to the jury how the CCTV footage contradicted the oral testimony of certain of witnesses.  The judge reminded the jury that in his closing speech the prosecutor “accepted there are omissions, inconsistencies and contradictions in the prosecution witnesses’ evidence”[7] and she referred the jury to the defence counsel’s closing address where they were set out in detail.  She then discussed a number of them and concluded with the following direction to the jury:

“Members of the jury, take into account these inconsistencies and omissions. It might lead you to conclude that the police officers, Yau and Cheung were not reliable or not honest or not credible witnesses.”[8]

This ground is not reasonably arguable.

40.In respect of the applicant’s fourth ground of appeal, I note that the judge warned the jury to approach the evidence of Yau and Cheung with caution as they were convicted persons and reminded them it was the defence case that they were unreliable and untruthful on oath.  She asked the jury to take in account the fact that they had incentives to testify against, or even falsely accuse, the applicant.  Lastly, the judge reminded them to exercise particular care in considering their evidence and encouraged them to look for other independent supportive evidence before acting on their evidence.  This ground is not reasonably arguable.

41.In respect of the fingerprint evidence Mr Tam conceded that there had been an inadvertent non-disclosure by the police of what fingerprint investigations had taken place and of their outcome.  Paragraph 3 of the second set of admitted facts is wrong in saying that no fingerprint examination was carried out on the fingerprint found inside Room A3.  It was carried out but the fingerprint expert reported that because the owner of the print could not be identified, the print would be classified as an “Outstanding Mark” and as such would checked on a daily basis.[9]

42.As to what happened to the plastic bags containing the dangerous drugs, Mr Tam informed me that they were examined for fingerprints and the memo from the Police Identification Bureau stated:

“As a result of the fingerprint examination carried out in connection with the above offence, there was no mark of value found on the exhibit(s) submitted.”[10]

43.I have considered whether this non-disclosure may have prejudiced the defence in any way and could thereby have deprived the applicant of his right to a fair trial.  Clearly, the non-disclosure should never have happened and I can only hope that the police and the Department of Justice have identified the cause of it and have put in place measures to prevent its recurrence.

44.When the prosecution rely on fingerprint evidence it is usually to show that the owner of the fingerprint was present at the crime scene, or some other relevant location, or was involved in the commission of the crime.

45.The absence of a defendant’s fingerprints in these situations will usually be seized upon by defence counsel to raise a doubt in the jury’s mind about the prosecution case.

46.Here the prosecution case was that the defendant was using Room A3 as a warehouse for the drugs and the place from which he would distribute them through the use of couriers such as Cheung.  The evidence now is that the fingerprint in Room A3 is not linked to the applicant, Cheung or Yau. 

47.As I have said, the fact that the applicant’s fingerprints could not be found at a crime scene with which the prosecution allege he was closely associated would normally have probative value to the defence.  But, the present case has one unusual feature.  The arrest of the applicant and search of Room A3 took place on 17 November 2016 and this was only one day after the commencement of the tenancy of this room.  The tenancy agreement which Yau signed reveals that the tenancy runs from 16 November 2016 to 16 November 2017.  Thus, the tenancy agreement, which was in fact a defence exhibit, provides an explanation for why the fingerprints of Yau and the applicant were not found in Room 3A.  They had been associated with the room for such a short period of time that there was simply insufficient opportunity for their fingerprints to be deposited there.  The fingerprint could belong to anyone, even perhaps a previous tenant of the room.

48.The fingerprint examination of the plastic bags disclosed no mark of any value.  I was told by Mr Tam that this means that a fingerprint was found but there were insufficient characteristics in respect of it to enable the depositor of it to be identified.  In effect, it could be anyone.  It could belong to Yau or the applicant or someone else.  I do not see how such an inconclusive outcome can benefit the applicant.  

49.I am of the view that it is not reasonably arguable that any prejudice has resulted from the non-disclosure and so I am not persuaded that the non-disclosure, as egregious as it is, would afford the applicant a reasonably arguable ground of appeal.   

50.Finally, there is the applicant’s complaint that the judge erroneously informed the jury that Yau had been sentenced to only 13 months’ imprisonment whereas she had in fact been sentenced to 30 months’ imprisonment.  The “mis-statement” by the judge appears in the following excerpt from the transcript:

“… You have heard Cheung Chi-ho has been sentenced to imprisonment for 5 years and 8 months because of his involvement with trafficking in dangerous drugs. You have heard that Yau Choi-yi has been sentenced to 13 months’ imprisonment, which is not connected with these events or with trafficking in dangerous drugs. She was sentenced for conspiracy to blackmail and criminal damage. So these persons are proven criminals. They have been convicted of an offence or offences.”[11]

51.I have listened to the DARTS recording of the summing-up and am satisfied that the judge in fact said “30 months” but that the transcriber misheard it.  But, in any event, I do not think this is of any significance.  What was important to the jury was not the length of Yau’s sentence but what her crime revealed to them of her character. That was clearly brought home to them.  There is nothing in this complaint. 

52.Apart from the complaints raised by the applicant I have carefully read the judge’s summing-up but can find nothing in it that would constitute a reasonably arguable ground of appeal. 

53.In respect of the applicant’s complaint in relation to his sentences, I was of the view that the judge was correct on the facts of this case in taking into account the total amount of ketamine seized, which is 799 grammes, to determine an overall starting point.  The overall starting point, as well as the individual starting points for the respective counts, are all arithmetically correct under the relevant guideline. 

54.I noted that there was no dispute that the evidence clearly revealed that the applicant was higher up the drug trafficking chain.  He was a warehouseman, storing drugs and employing minors to distribute them to others. Given the quantities involved he was not distributing them to the end users but presumably to retail suppliers of drugs.  This being so the judge should have adopted a higher starting point to reflect the applicant’s more serious role as a drug trafficker.  The arithmetic starting point is for the simple courier; for the lowest level of drug trafficker. 

55.The applicant’s complaint is that the judge was not entitled to enhance his sentence in Count 2 for recruiting a minor because section 56A of the Dangerous Drugs Ordinance, Cap 134 would have no applicability to the applicant who was himself also a minor, as such a person is defined in the Interpretation and General Clauses Ordinance, Cap 1.

56.The applicant is correct in saying that the section 56A power can only be used against adults but two things must be appreciated about it.  The first is the breadth of its application.  Under section 56A it does not matter whether the offender is aware that the person he is employing to assist him is a minor.  Cheung JA, in giving the judgment of the Court of Appeal in HKSAR v Ng Hon Keung said:

“15 This is a matter of statutory construction. The provision is not related to the ingredient of an offence where the issue of knowledge is usually relevant. Section 56A(2) provides for enhancement when a minor is involved in the commission of the specified offence and identifies different situations in which the youth may be involved. Neither s 56A(2) itself nor s 56A(2)(a), (b) and (e) imposes any requirement on the part of the defendant of knowledge of the age of the minor. Although s 56A(2)(d) refers to the defendant ‘intentionally’ employing a minor which obviously requires knowledge, in the same sub-section it also provides for the defendant ‘unintentionally’ employing a minor. In our view the provision under s 56A(2) will come into operation and the Court can enhance the sentence if a minor is involved in the commission of the offence irrespective of whether the defendant knows that he is dealing with a minor or not. Anyone who deals with dangerous drugs will have to bear the consequence of receiving an enhanced sentence if a minor is involved in the offence.”[12]

57.As has been made clear in this decision of the Court of Appeal, section 56A is broad and empowers a court to enhance a sentence for adult offenders even where the adult offender did not intentionally involve the minor in the ways caught by the section.[13] 

58.The second thing that has to be understood about the section 56A power is that it specifically provides that it shall operate without prejudice to any other information to which a court may have regard when sentencing an offender:

“This section shall operate without prejudice to any other information that may be furnished to a court before a person is sentenced, or to any other information to which a court shall or may have regard when sentencing a person for any offence.”[14]

59.In sentencing the applicant the judge was aware of the limitations inherent in section 56A and purported to exercise her sentencing discretion in accordance with common law principles.  Part of her sentencing discretion is a power to enhance the starting point that she adopts for a particular offence to allow for any aggravating factors that she finds present in the commission of the offence, relating either to the gravity of the offence or the culpability of the offender.  What constitutes an aggravating factor for an offence is usually determined by the appellate courts and it cannot be doubted that the Court of Appeal has the power to lay down what constitutes an aggravating factor.[15]  

60.For the offence of trafficking in a dangerous drug the Court of Appeal set out, in a non-exhaustive way, what would be aggravating factors in its judgment in Abdallah.  In giving the judgment of the court Stuart‑Moore VP said at [32] of his judgment:    

“ … There are a number of factors that must go in aggravation of this offence including, but not limited to, the international element, the organising role played by the offender, the use by the offender of the young or otherwise vulnerable and the fact that the trafficker has engaged in trafficking on a previous occasion. …”[16] (Emphasis added.)

61.He later summarised the court’s decision at [42] of his judgment by saying:

“42. It will be an aggravating factor calling for the enhancement of the starting point where, for example:

(1) An international element is involved;

(2) The trafficker has previously been convicted of trafficking in dangerous drugs;

(3) The trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or

(4) The offender is shown to have engaged a young person to assist in the trafficking.

43. We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kilogramme will be less than 2 years’ imprisonment in addition to the new guideline tariffs we have set out.”[17]

62.Between [32] and [42] Stuart-Moore VP revealed that he was aware of section 56A and it is apparent from his comments in respect of the section that he saw it as an additional aggravating factor.  He said:

“39. It is additionally to be noted, in relation to the existence of aggravating circumstances, that s.56A(2)(d) of the Dangerous Drugs Ordinance makes specific provision, amongst other things, for the sentencing of offenders who ‘intentionally or unintentionally’ employ, hire, use, persuade, entice or coerce ‘a minor in the commission of the offence or the avoidance of detection or apprehension of such an offence’. In such circumstances, pursuant to s.56A(1)(b)(ii) ‘the court may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such information, have passed.’”[18]

63.I have no doubt that when Stuart-Moore VP referred at [32] to “the use by the offender of the young or otherwise vulnerable” he was not referring to section 56A but instead to an aggravating factor that had long been recognized at common law.

64.I do not think it is reasonably arguable that section 56A precludes the Court of Appeal from saying that trial courts should enhance the sentence of an offender who is a minor when there is evidence before it that the offender intentionally recruited other minors to assist in drug trafficking.  Whether a court should enhance for this aggravating factor will always be a matter of sentencing discretion.  Here the judge was dealing with two persons of different age and different levels of maturity. The applicant was performing the role of recruiter and was targeting minors.  He, himself was only 9 months short of his eighteenth birthday and was in an intimate relationship with a 21 year old woman whom he had deceived into believing that the flat she had rented for his benefit, and where he stored the drugs, would be a place in which they could cohabit.  The applicant clearly possessed a level of maturity and worldliness that belied his youthful age.

65.It is, therefore, not reasonably arguable that the judge erred in the exercise of her discretion in enhancing the applicant’s sentence for his exploitation of a minor.

Disposition

66.For these reasons, I refused the applicant leave to appeal against his convictions and his sentences.  I reminded him of his right to renew his applications for leave to appeal against his convictions and sentences before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed applications, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.   

Ms Felix Tam SPP, of Department of Justice, for the respondent

The applicant appeared in person

[1]  Appeal Bundle, page 13, [3].

[2]  Appeal Bundle, page 13, [5].

[3]  He was sentenced on 30 December 2016 which was after his arrest for the present case. 

[4]  [2009] 1 HKLRD 1

[5]  [2009] 2 HKLRD 437

[6]  HCMA 516/2018, unreported, 4 July 2019.

[7]  Appeal Bundle, page 23R-S.

[8]  Appeal Bundle, page 27B-D.

[9]  Annex B to the Respondent’s Supplemental Submission.

[10]  Crime Wing Headquarters Identification Bureau Memo dated 22 February 2017 tendered by the Respondent.

[11]  Appeal Bundle, page 29Q-U.

[12]  [2012] 6 HKC 465, 470.

[13]  See also HKSAR v Chan Ka Shing [2012] 2 HKLRD 220

[14]  Section 56A(6) of Dangerous Drugs Ordinance, Cap 134.

[15]  The responsibility of the Court of Appeal to provide guidance in sentencing matters was discussed by the Court of Final Appeal in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at [77]-[83].   

[16]  [2009] 2 HKLRD 437, at 451.

[17]  ibid, at 453.

[18]  [2009] 2 HKLRD 437, at 453.