HKSAR v. Leung Tsz Man

CACC 47/2020

[2021] HKCA 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 47 OF 2020

(ON APPEAL FROM HCCC NO 256 OF 2019)

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Before:  Hon Zervos JA in Court

Date of Hearing:  5 March 2021

Date of Judgment:  5 March 2021

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J U D G M E N T

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1.The applicant pleaded guilty to two charges of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Charge 1 alleged that she trafficked in 23.9 grammes of a solid containing 18.2 grammes of cocaine. Charge 2 alleged that she trafficked in 682.05 grammes of a solid or powder containing 614.66 grammes of cocaine, 441.09 grammes of a solid or powder containing 405 grammes of cocaine hydrochloride, and 39.40 grammes of 3-4 methylenedioxymethamphetamine (commonly known as ecstasy or MDMA).

2.On 15 April 2020, Wong J (the judge) sentenced the applicant to 3 years and 8 months’ imprisonment on Charge 1 and 14 years and 10 months’ imprisonment on Charge 2.  He ordered that the sentences on the two charges run concurrently, and this resulted in a total sentence of 14 years and 10 months’ imprisonment. 

3.The applicant now applies for leave to appeal against her sentence.  In her application, she complains that the sentence imposed on her was unfair and excessive.  She appears in person in this application, having had legal aid refused.

The brief facts

4.On 13 June 2018, the applicant was intercepted by police in the vicinity of the building in which she resided.  She was searched and found inside her handbag was a cigarette box containing a plastic bag with the cocaine as particularised in Charge 1.  She was arrested and cautioned, whereupon she said that the drugs were for her own consumption.

5.The applicant was then taken back to her residence for a house search.  The police uncovered the drugs as particularised in Charge 2 as well as other related items and paraphernalia including four digital scales, two bundles of transparent resealable plastic bags, a metal pot, scissors, hammer, metal stick, spoon, cotton swab, chopsticks and plastic plates.  Except for the two bundles of transparent resealable plastic bags, the rest of the items and paraphernalia contained traces of cocaine. 

6.The applicant was again arrested and cautioned, whereupon she remained silent.

7.The street value of the cocaine in Charge 1 was estimated to be $23,541.50 in powder form or $30,209.60 in crack form.[1]  In Charge 2, the street value of the cocaine was estimated to be $1,106,292.90 in powder form or $1,419,648.90 in crack form, and the street value of the ecstasy was $18,326. 

The applicant’s mitigation

8.At the time of sentencing, the applicant was 28 years of age.  She was educated up to secondary level four and had previously worked as a sales representative.  She was a single mother with a son who was 3 years and 10 months of age.  The father of the child had deserted her before she had given birth. 

9.It was submitted on the applicant’s behalf that as a single mother she was under heavy economic pressure.  As a result, she succumbed to the temptation of an offer of a reward of $50,000 in committing the offences in question.  It was submitted that she was remorseful and had pleaded guilty to the offences at the first available opportunity. 

10.As part of the applicant’s mitigation, letters from her mother and younger brother were submitted to the judge.  Both said that the applicant was a responsible member of the family and a caring mother. Her mother in particular explained the circumstances of her daughter’s upbringing and of the difficulties that she had encountered and had to overcome.  She took responsibility for her daughter’s wayward lifestyle.  An officer of a Christian association also submitted a letter on her behalf, who spoke of her change of attitude and evident display of remorse. They all declared that the applicant was truly remorseful and asked for leniency on her behalf. Also submitted to the judge was an assessment report of the applicant’s son, which revealed that he was experiencing some developmental difficulties.

The reasons for sentence

11.The judge in his detailed sentencing remarks reviewed the applicant’s mitigation, noting her background and personal circumstances.  He made reference to the fact that this was not the first time that she had come before the courts.  In February 2011, she was sentenced to attend a Drug Addiction Treatment Centre for possession of a dangerous drug; in April 2013, she was sentenced to 5 months’ imprisonment for attempting to traffic in a dangerous drug; and in August 2013, she was sentenced to 2 years and 9 months’ imprisonment for dealing in the proceeds of crime.

12.The judge dealt with each charge as follows. 

13.In respect of Charge 1, the judge applied the sentencing guidelines for trafficking in cocaine as laid out in R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69, and adopted a starting point of 5 years and 6 months’ imprisonment. 

14.In respect of Charge 2, the judge had to take a different approach because two types of drugs were involved, cocaine and ecstasy.  The total quantity of cocaine was 1,019.66 grammes.  He noted that according to sentencing guidelines in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, a starting point of slightly more than 22 years’ imprisonment was appropriate for this quantity of cocaine.  The quantity of ecstasy was 39.4 grammes.  He noted that according to the sentencing guidelines in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, a starting point of slightly less than 5 years and 6 months’ imprisonment was appropriate for this quantity of ecstasy. 

15.Because there was more than one type of drug involved, the judge explained that he followed the approach in sentencing as suggested in HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Yau Ka Ming, CACC 144/2013; HKSAR v Chan Yuk Leong, CACC 318/2013; and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.  He adopted a combined approach and determined an appropriate starting point, which he checked against “the absurdity test”, “the conversion test” and “the ratio test”.  He noted that if all the drugs were to be treated as cocaine, the total quantity of about 1,059 grammes, would attract a starting point of slightly more than 22 years’ imprisonment. 

16.Apart from taking into account the quantity of the two drugs, the judge explained that he also had regard for the possible aggravating features of the two drugs catering for a wider market and the effect a combination of them would have on users. 

17.The judge considered that in all the circumstances an appropriate starting point for Charge 2 was 22 years and 3 months’ imprisonment.  

18.Taking into account the totality principle, the judge took the view that the overall starting point for the two charges should be 22 years and 3 months’ imprisonment, which when reduced by one third for the applicant’s guilty plea, resulted in a sentence of 14 years and 10 months’ imprisonment.

19.In respect of the sentence on each charge, the judge after reducing the starting point by one third sentenced the applicant on Charge 1 to 3 years and 8 months’ imprisonment, and on Charge 2 to 14 years and 10 months’ imprisonment.  He ordered that the sentence on each charge be served concurrently and this resulted in a final sentence of 14 years and 10 months’ imprisonment.

Discussion

20.The applicant complains that the sentence imposed on her was unfair and excessive.  The respondent disagrees and submits that the judge treated the applicant leniently and that she has no cause for complaint for the sentence that was imposed on her. 

21.The judge had correctly considered the relevant sentencing guidelines applicable to the two different types of drugs involved in Charge 2.  He also correctly adopted the combined approach in determining an appropriate starting point, which was checked against the various tests that have been suggested for this purpose. 

22.Mr Michael Tsang, for the respondent, has helpfully calculated the results of the various tests.  By applying “the absurdity test”, which treats the overall quantity of the drugs involved as cocaine, the starting point should be about 22 years and 4 months’ imprisonment. By applying “the conversion test”, whereby the ecstasy is converted into an equivalent quantity of cocaine (39.4 grammes of ecstasy would be the equivalent of about 17 grammes of cocaine), the starting point should be about 22 years and 2 months’ imprisonment.  By applying “the ratio test”,[2] the starting point should be about 22 years’ imprisonment: HKSAR v Chan Yuk Leong, CACC 318/2013, 8 April 2013, at [12]-[19]. 

23.There was a total of 1,019.66 grammes of cocaine involved in Charge 2 and the sentence for this quantity of cocaine alone would be about 22 years and 1 month’s imprisonment.  Taking into account that there was also 39.4 grammes of ecstasy, the quantity of which was not insignificant, and the aggravating factors of the two drugs catering for a wider market and the effect on users of a combination of the drugs, the overall starting point adopted by the judge was not excessive in the circumstances: HKSAR v Chan Yuk Leong, CACC 318/2013, 8 April 2013, at [23]-[25]; HKSAR v Felizardo Josephine Moral [2020] HKCA 626, at [18] and [26]. 

24.Inside the applicant’s residence, the police uncovered an elaborate operation in the preparation and packaging of the drugs involved.  The judge would have been entirely justified in adopting a higher starting point commensurate with the applicant’s more culpable role and level of involvement in the drug trade.  There was also present the aggravating factors of the two drugs catering for a wider market and the cocaine when used in combination with ecstasy, providing a far more dangerous and potent drug cocktail: HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542, at [30]-[34].

25.It cannot be said that the sentence was wrong in principle or manifestly excessive.  The judge very carefully applied the relevant sentencing principles and guidelines.  He also very generously made the sentences of the two charges concurrent. 

26.The applicant has a very caring and supportive family as evidenced by the letters that have been submitted by her mother and younger brother, and no doubt her life experiences have been difficult, and at times traumatic, but it does not excuse engaging in very serious crime.  The applicant’s infant son is being cared for by the applicant’s mother and it seems in far better circumstances than she was providing him at the time of the offence.

27.After a careful consideration of the applicant’s case, I am of the view that she has no basis to complain about the sentence that was ultimately imposed on her, and her application for leave to appeal against sentence is refused.

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

Mr Michael Tsang, SPP of the Department of Justice, for the respondent

The applicant appeared in person, present