HKSAR v. Ng Yu Kiu

CACC 114/2021

[2022] HKCA 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 2021

(ON APPEAL FROM HCCC NO. 188 OF 2020)

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BETWEEN

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Before:  Hon Anthea Pang JA in Court

Date of Hearing:  4 May 2022

Date of Judgment:  4 May 2022

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J U D G M E N T

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Introduction

1.The applicant pleaded guilty to two counts of trafficking in a dangerous drug[1] and was committed to the High Court for sentence.  On 25 May 2021, he was sentenced by Andrew Chan J (the judge)  to a total of 18 years’ imprisonment.  The applicant now applies for leave to appeal against his sentence. 

Facts admitted by the applicant

2.In the afternoon of 25 April 2019, when the police were carrying out an anti-narcotics operation in Tseung Kwan O, the applicant was intercepted in the corridor immediately after leaving Room 405 of a building.  In the handbag held in the applicant’s hand, the police found, amongst other things, three re-sealable plastic bags containing a total of 1,205 grammes of heroin hydrochloride, which formed the subject matter of Count 1.  Under caution, the applicant admitted delivering the powder for a reward of $1,000. 

3.Thereafter, the police gained entry into Room 405 with the keys seized from the applicant, followed by a search of Unit 5 which the applicant occupied.  Inside Unit 5, more dangerous drugs were found which collectively formed the subject matter of Count 2. These are particularized as follows:

(a)  3,448.9 grammes of a powder containing 2,970.8 grammes of heroin hydrochloride (seized from a basket);

(b)  33.9 grammes of heroin hydrochloride, and 907.9 grammes of a mixture containing 774.5 grammes of heroin hydrochloride (seized from 2,366 capsules contained in 24 plastic bottles);

(c)  0.07 gramme of a mixture containing heroin, and 0.41 gramme of a mixture containing 0.32 grammes of heroin hydrochloride (seized from a plastic container); and

(d)  35,798 grammes of herbal cannabis (seized from 74 plastic bags). 

(A total of 4,357.21 grammes of a powder/mixture containing 3,779.52 grammes of heroin hydrochloride, 0.07 gramme of a mixture containing heroin, and 35,798 grammes of herbal cannabis.)

4.In a subsequent video-recorded interview, the applicant admitted bringing to Unit 5 a total of five boxes of dangerous drugs which he received from an acquaintance Ah Fai, who offered to pay him to keep the drugs there (which he did for 2 weeks).  Ah Fai also provided him with re-sealable plastic bags, gloves, an electronic scale as well as a sealer and instructed him to extract the white powder from the capsules and re-pack in the re-sealable plastic bags for further delivery. The applicant claimed that he did not have the contact of Ah Fai whom he had met only once. 

5.The street value of heroin and herbal cannabis in April 2019 was about $4 million and $18 million respectively. 

Sentencing of the applicant

6.The applicant was aged 30 and unemployed at the time of the offences.  He had a similar previous conviction in 2009 for which he was sentenced to the Training Centre. 

7.The judge, in sentencing the applicant, said that,[2]

“Guidelines on sentencing are clear. In respect of the 1^st count, the starting point for trafficking in 1.2 kilogrammes of heroin is one of 23 years’ imprisonment. In respect of the 2^nd count, the starting point for trafficking in 3.78 kilogrammes of heroin is one slightly short of 26 years’ imprisonment. As far as the herbal cannabis is concerned, the starting point for trafficking in approximately 35 kilogrammes is one of about 6 years’ imprisonment on its own.

It is fairly difficult to compare the relative toxicity of herbal cannabis with heroin. In this case, the value of the cannabis is much higher than heroin. I am pretty sure in terms of toxicity and addictability, the reverse is true. Gramme for gramme, herbal cannabis is in fact more expensive than heroin.

Having considered the total amount of drugs, ie, heroin and herbal cannabis, in question, the defendant’s past record, the overall starting point for Count 2 will be adjusted upward to one of 27 years’ imprisonment. The amount of heroin seized as stated in the 1^st count no doubt comes from those found inside his residence. And given the total amount of heroin in question, ie, 4.98 kilogrammes, it is ordered that both the sentences imposed on the 1^st count as well as the 2^nd count are to serve concurrently to each other.

So for the two offences the defendant stands convicted, he is therefore sentenced to 18 years’ imprisonment.”

Ground of appeal

8.The applicant makes no complaint against the sentence per se.  His sole ground of appeal is that he had pleaded guilty and had co-operated with the police. 

Respondent’s reply and submissions

9.Ms Claudia Ng, for the respondent, submitted that the applicant should not be given a discount on sentence in respect of the matter raised and that no valid complaint could be levelled against the applicant’s sentence which was not (but could have been)  enhanced on the basis of his trafficking in more than one type of dangerous drug. 

Conclusion

10.Based on the material before me, I do not consider that the ground advanced by the applicant is reasonably arguable and I refuse his application for leave to appeal against sentence.  

11.The applicant could renew his application before the Court of Appeal but a warning is now given to him that should he do so, and should the Court of Appeal find no merit in respect of the renewal application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal.  

Ms Claudia Ng, SPP of the Department of Justice, for the Respondent

The applicant appeared in person