HKSAR v. Wong Wang Hing

CACC 57/2022, [2023] HKCA 729

On Appeal From [2022] HKCFI 1359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 57 OF 2022

(ON APPEAL FROM HCCC NO 18 OF 2022)

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J U D G M E N T

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1.The applicant applies for leave to appeal against a sentence of 94 months’ (or 7 years and 10 months’) imprisonment imposed by Andrew Chan J (“the judge”) following his plea of guilty to a single count of trafficking in dangerous drugs, namely 78.24 grammes of methamphetamine hydrochloride narcotic (commonly known as “Ice”), 10.76 grammes of ketamine narcotic and 1.12 grammes of cocaine narcotic[1], contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.On 8 December 2020, the applicant was intercepted by police officers whilst sitting in the driver’s seat of his private car with the engine running in a carpark in Fanling, New Territories. Upon a search of the vehicle, the dangerous drugs in question were found[2]. The applicant admitted under caution that the vehicle belonged to him and that he delivered dangerous drugs to support his living. On the day in question, he had received instructions from one “Ah Kei” to collect some drugs from Mongkok and deliver them to someone in Fanling for HK$5,000.

3.The total street value of the drugs was HK$60,074.28.

Reasons for sentence

4.The applicant was 40 years of age, single and unemployed. He had five previous appearances before the courts, the last of which, in July 2013, concerned two different charges of trafficking in dangerous drugs before the District Court, for which he received 3½ years’ and 5½ years’ imprisonment respectively, both sentences being ordered to run concurrently with each other.

5.The applicant’s counsel submitted that, in accordance with the ‘combined approach’, the “Ice” should be regarded as the base drug, since not only did it make up the bulk of the cocktail but it was also the most serious of the dangerous drugs seized. He acknowledged that the starting point, on a strictly arithmetical basis, should be 134 months’ imprisonment for 78.84 grammes of “Ice” alone, which could then be adjusted upwards to cater for the ketamine and cocaine. Having gone through the so-called ‘absurdity test’ (136 months), the ‘conversion test’ (134 months) and the ‘ratio test’ (128 months), counsel invited the judge to adopt a starting point of 135 months’ imprisonment. It was further accepted that such starting point could be enhanced for two aggravating factors, namely, the cocktail of drugs being trafficked, thus catering for a wider market, and the fact that the applicant was a repeat offender.

6.The judge evidently agreed with these submissions and, accordingly, adopted 135 months’ imprisonment as the starting point for the entirety of the drugs, adding 3 months for the cocktail of dangerous drugs factor and a further 3 months for the applicant’s previous similar convictions. Giving a full one-third discount for plea, the judge passed a sentence of 94 months’ (or 7 years and 10 months’) imprisonment on the applicant.

Grounds of appeal

7.The applicant, who is acting in person in this application, has merely expressed his dissatisfaction with the sentence in his Form XI Notice of application for leave. He has made no further submissions before me today but asked the Court to consider the correctness of his sentence.

Respondent’s submissions

8.Mr CH Ho, on behalf of the respondent, refers to the relevant sentencing guidelines in HKSAR v Tam Yi Chun (No 2)[3]; Secretary for Justice v Hii Siew Cheng[4]; R v Lau Tak Ming and Others[5]; and Attorney General v Pedro Nel Rojas[6], submitting that, if viewed individually, trafficking in the “Ice”, ketamine and cocaine in question would attract terms of 134 months’[7], 48 months’[8] and 28 months’ imprisonment[9] respectively. He set out the results of the three tests to which I have referred, which Mr Ho correctly described as cross-checks on the appropriate sentence, as follows:

	Calculation	Starting point
Absurdity test	Notionally adding up all the drugs to arrive at a total of 90.12 grammes of “Ice”	136 months
Conversion test	Converting all the drugs into ‘Ice’ to achieve a figure of 80.74 grammes of “Ice”[10]	134 months
Ratio test	The starting point of each drug on the basis 90.12 grammes of narcotic × ratio: “Ice”: 136 months × 0.87 Ketamine: 78 months × 0.12 Cocaine: 109 months × 0.01	129 months

9.Since the starting point for “Ice” alone was already 134 months’ imprisonment, the result under the ‘ratio test’ should be disregarded. Mr Ho contended that the 135 months’ imprisonment adopted by the judge as the overall starting point for the three drugs concerned was appropriate.

10.Mr Ho further submitted that it was appropriate for the judge to have enhanced the sentence by 3 months for trafficking in multiple types of dangerous drugs: see HKSAR v Islam Azharul[11] and HKSAR v Islam SM Majharul[12]; and a further 3 months for the applicant’s persistent re-offending: see HKSAR v Lau Tsz-ho[13] and HKSAR v Har Tsz-yui[14].

Consideration

11.I can see no appealable error in the judge’s starting point of 135 months’ imprisonment for the combined quantity of dangerous drugs concerned: indeed, that was the very starting point advocated by the applicant’s own counsel[15]. There were two significant aggravating features, which the judge could not ignore, namely, the multiplicity of different types of dangerous drug, thus catering to a wider market, and the applicant’s recent similar previous convictions for trafficking; indeed, he cannot have been long out of prison before he committed the present offence. For these two matters the judge enhanced the sentence by only 6 months’ imprisonment. The applicant could not really have complained if the enhancement had been longer.

12.I can, therefore, see no reasonably arguable grounds of appeal against sentence and the application for leave is refused.

13.The applicant is reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he should also be warned that that Court has the power to order the loss of any time he has served in custody pending the hearing of his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

Mr Ho Cheuk Hei PP, of the Department of Justice, for the Respondent

The Applicant appeared in person