HKSAR v. Hui on Lung

CACC 173/2023 [2024] HKCA 534

On appeal from [2023] HKCFI 2669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 173 OF 2023

(ON APPEAL FROM HCCC NO 59 OF 2023)

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J U D G M E N T

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1.On 15 September 2023, following his pleas of guilty in the Magistracy to two counts of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134), namely 998 grammes of a crystalline solid containing 998 grammes of methamphetamine hydrochloride (commonly known as Ice) (Count 1) and 1,991 grammes of a crystalline solid containing 1,991 grammes of Ice, the applicant was sentenced by Deputy High Court Judge Anthony Kwok (the Judge) to 16 years and 8 months’ imprisonment.

2.On 27 September 2023, the applicant filed a notice of application for leave to appeal against sentence in which he complained that the term of imprisonment was excessive and unfair. He appears in person in support of his application, having had legal aid refused on 14 November 2023.

3.The facts agreed by the applicant when he pleaded guilty can be briefly stated as follows.

4.At about 6:28 pm on 5 March 2021, the applicant was intercepted by the police as he was leaving Room 2920, Hin Ming Court, Tseung Kwan O. He was carrying a carton box which was searched by the police, who found inside the box three smaller carton boxes with four vacuumed plastic packets containing a total of 998 grammes of Ice narcotic (Count 1). The applicant was arrested and remained silent under caution. Armed with a search warrant, the police entered Room 2920, where they found eight vacuumed plastic packets containing a total of 1,991 grammes of Ice narcotic, three electronic scales, empty resealable plastic bags, a sealing machine, a rental agreement with the applicant for Room 2920 and four letters addressed to the applicant (Count 2). The applicant was further cautioned and remained silent.

5.The applicant admitted that he had rented Room 2920 since 1 December 2020 for 2 years with a monthly rental of $10,500. He also admitted that he possessed all the drugs seized for the purpose of trafficking in them. The street value of the drugs at the time of the offence was $1,691,774.

6.In sentencing the applicant, the Judge applied the relevant sentencing guidelines to the total quantity of Ice involved of 2,989 grammes, which fell within the band of 1,200 to 4,000 grammes of Ice, corresponding to a starting point of 23 to 26 years’ imprisonment: HKSAR v Tam Yi Chun [1], HKSAR v Abdallah [2] and HKSAR v Wan Lau Mei [3]. Accordingly, he adopted a starting point of 24 years and 11 months’ imprisonment. He referred to HKSAR v Herry Jane Yusuph [4] and found that the applicant’s role was more than a courier as he was responsible for renting the room in which the dangerous drugs were packed. He, therefore, enhanced the notional starting point by 7 months to 25 years and 6 months’ imprisonment. He found that the only mitigating factor in the applicant’s favour was his timely guilty plea and therefore reduced his sentence by one third to 17 years’ imprisonment.

7.The Judge considered the overall sentence for both counts and decided to exercise his discretion to reduce the total sentence to 16 years and 8 months’ imprisonment, having taken into account that this was the applicant’s first conviction for trafficking in a dangerous drug and the length of the sentence. The discount appears to be a misapplication of the sixth step in Herry Jane Yusuph as explained by this Court in HKSAR v Lee Ming Ho [5]. The applicant was fortunate that he received this additional discount, which was incorrectly given to him.

8.There is one observation that I need to make concerning the Judge’s sentencing order. He appears to have imposed on each count a sentence of concurrent terms of imprisonment of 16 years and 8 months. Whilst he correctly sentenced the applicant for the total Ice narcotic involved, he should have identified the sentence for each count with appropriate adjustment to arrive at the total sentence for the two counts of 16 years and 8 months’ imprisonment. However, I do not find the total sentence imposed to be manifestly excessive or wrong in principle and the applicant’s application for leave to appeal against his sentence is refused.

9.The applicant is reminded of his right to renew his application for leave to appeal against his sentence to the Court of Appeal, but he is also informed of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr David Chan, SADPP, of Department of Justice, for the respondent

The applicant appeared in person