HKSAR v. Wong Yu Wo

CACC 1/2020

[2021] HKCA 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 1 OF 2020

(ON APPEAL FROM HCCC NO 148 OF 2018)

________________________

________________________

Before:  Hon Zervos JA in Court

Date of Hearing:  3 March 2021

Date of Judgment:  3 March 2021

________________________

J U D G M E N T

________________________

1.On 10 October 2018, following his plea of guilty to a single count of trafficking in a dangerous drug, namely 973 grammes of a crystallised solid containing 965 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was sentenced by Campbell-Moffat J (the judge) to 15 years and 10 months’ imprisonment.

2.On 3 January 2020, the applicant filed a notice of application for leave to appeal against sentence out of time.  He stated in his application that he considered the sentence imposed on him to be excessive after comparing it with a similar case, which he identified as HKSAR v Chau Kai Kwok, HCCC 180/2019 [2020] HKCFI 112.  He also stated that the reason for the delay in filing his application was due to his difficulty in raising money in order to mount an appeal. 

3.The applicant appears in person, having had legal aid refused on 14 April and 21 August 2020 and 12 January 2021.

4.The facts agreed by the applicant and outlined to the judge are fairly straightforward.  Late in the evening on 13 October 2017, the applicant was intercepted at the border on his return to Hong Kong from mainland China.  He was searched and found wrapped around his waist were two plastic bags containing the drugs.  Upon his arrest and caution, he admitted that a person called “Ah Chik” had asked him to deliver the drugs across the border to Hong Kong for a reward of $9,000.  He agreed that he knowingly imported the drugs into Hong Kong and that the estimated value of the drugs at the time of the offence was $417,417. 

5.At the time of sentence, the applicant was 43 years of age.  He lived alone, although he had been previously married and had a son.  He occasionally worked running parallel goods.  He had six previous criminal convictions since 1992 and his last conviction was in 2012 when he was convicted for trafficking in a dangerous drug and sentenced to 7 years’ imprisonment. 

6.The judge in her reasons for sentence did not find any meaningful mitigation advanced on the applicant’s behalf.  She applied the sentencing guidelines laid down in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 and adopted a starting point of 21 years and 9 months’ imprisonment.  She enhanced the notional starting point by 2 years for the international element to 23 years and 9 months’ imprisonment, which she reduced by one third for the applicant’s guilty plea to 15 years and 10 months’ imprisonment.

7.It is noted that the enhancement the applicant received for the international element was in accordance with the authorities and that resultant sentence of 15 years and 10 months’ imprisonment was neither wrong in principle nor manifestly excessive. 

8.The case of Chau Kai Kwok that is mentioned by the applicant is entirely different from the facts of the present case.  The dangerous drug involved in that case was cocaine and the defendant was charged both with trafficking and manufacturing in a dangerous drug.  The quantities of drugs involved in that case were different from the amount in the present case and there was no international element.  The defendant received a sentence of 15 years and 3 months’ imprisonment.

9.The applicant’s explanation for the inordinate delay in filing his application is both inadequate and unacceptable.  In any event, it follows from what I have said that I find no merit in this application and I refuse the applicant an extension of time and leave to appeal against sentence out of time.

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

Ms Chan Sze-yan, SPP of the Department of Justice, for the respondent

The applicant appeared in person, present