HKSAR v. Lo Kwok Shing

CACC 207 /2024, [2025] HKCA 538

On Appeal From [2024] HKCFI 3193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 207 OF 2024

(ON APPEAL FROM HCCC NO 435 OF 2023)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

1.The applicant, the 2^nd defendant at trial, pleaded guilty before a magistrate on 14 December 2023 to three charges of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, as a result of which he was committed to the High Court for sentence. The offences involved a cumulative total of 123.78 grammes of cocaine narcotic. On 27 September 2024, he was sentenced in the High Court by Deputy Judge Kwok (“the judge”)  to an overall term of 8 years’ imprisonment.

2.By his Form XI Notice filed on 4 October 2024, the applicant has sought leave to appeal against his sentence.  He has advanced 5 homemade grounds of appeal together with submissions in his letter to the court dated 20 January 2025.

Facts admitted[1]

The first incident

3.On 1 November 2021, at about 2:22 am, police officers on patrol observed the applicant and the 1^st defendant (“D1”)  alighting from a private car parked in Hanoi Road, Tsim Sha Tsui and entering a nearby building in a furtive manner.  The police followed and intercepted them inside the building.  D1 struggled and was found to be holding a plastic bag containing a white solid, later confirmed to be 10.1 grammes of cocaine (the subject-matter of Charge 1).  D1 was also in possession of a car key.  Upon enquiry, the applicant admitted ownership of the car. 

4.A search of the car revealed further dangerous drugs in two re-sealable plastic bags and a plastic tray, later confirmed to be 3.18 grammes of cocaine (the subject-matter of Charge 2), an electronic scale and numerous empty re-sealable plastic bags.  Both D1 and the applicant were arrested.  Further searches uncovered HK$202 and two mobile telephones on D1; and HK$2,008 and one mobile telephone on the applicant.  The estimated street value of the drugs in Charges 1 and 2 was HK$16,213.  By admitting the summary of facts, both defendants admitted to possession of all the drugs in Charges 1 and 2 for the purpose of unlawful trafficking[2].

The second incident

5.On 4 April 2022, at about 12:50 am, the applicant was again observed acting furtively in Hanoi Road.  Upon seeing the police, he threw a package under a parked car (owned by a third party)  and fled, but was apprehended nearby.  The retrieved package was found to contain six re-sealable bags with a total of 110.5 grammes of cocaine (the subject-matter of Charge 3).  Its estimated street value was HK$129,714.  Under caution, both at the scene and in a subsequent video recorded interview, the applicant claimed the drugs were for his own consumption.  However, when admitting to the summary of facts, the applicant admitted to possession of all the drugs in Charge 3 for the purpose of unlawful trafficking[3].

Reasons for sentence[4]

6.The judge was not persuaded by the submission of the applicant’s counsel that “some” unspecified quantity of the drugs were for personal use, thus warranting a reduced sentence: HKSAR v Kong Tat Lung[5]. He invited the defence to provide supporting material or evidence for the submission, but this was declined.  He noted the absence of apparatus for consumption at each of the scenes, while the drugs were packaged in a manner consistent with trafficking, and the presence of an electronic scale and multiple empty re-sealable bags.  As such, the judge declined to give any sentencing discount to the applicant for this assertion[6].

7.The judge expressly disregarded the applicant’s prior conviction for simple possession in 2009[7]. He acknowledged the applicant’s unfortunate family background (his mother suffered ill health and his father had passed away whilst the applicant was in custody[8])  but emphasised that personal circumstances would carry little weight in sentencing for serious offences of trafficking in dangerous drugs[9].

8.The first incident involved two charges of trafficking in a total of 13.28 grammes of cocaine.  The judge treated both quantities together as one offence for sentencing purposes.  Referring to the guidelines in R v Lau Tak Ming & Another[10] (namely, 5 to 8 years’ imprisonment for trafficking in 10 to 15 grammes), and accepting that both defendants were acting as couriers, the starting point adopted was 5 years and 3 months’ imprisonment.  With no aggravating factors relevant to these offences and a one-third reduction for their guilty pleas, each defendant received 3 years and 6 months’ imprisonment on each charge, to run wholly concurrently.

9.The second incident involved 110.5 grammes of cocaine, which fell within the Lau Tak Ming guideline range of 8 to12 years’ imprisonment for trafficking in 50 to 200 grammes.  Accepting again that the defendant acted as a courier, the judge considered an appropriate starting point to be 9 years and 7 months. For the aggravating factor of re-offending whilst on bail, 8 months’ imprisonment were added, making a notional sentence after trial of 10 years and 3 months’ imprisonment.  With no mitigating factors and a one-third reduction for the guilty plea, the sentence was reduced to 6 years and 10 months’ imprisonment.

10.The judge determined that fully concurrent sentences as between Charges 1 and 2 and Charge 3 would be wrong in principle, as the incidents were separate and distinct, and Charge 3 involved a breach of bail conditions; however, he acknowledged that wholly consecutive sentences would be unduly harsh.  Accordingly, he ordered that 2 years and 4 months’ imprisonment of the sentence on Charge 3 should run concurrently with the first two charges, while the remaining 4 years and 6 months’ imprisonment was to run consecutively.  The total sentence was, therefore, 8 years’ imprisonment, reflecting a global starting point of 12 years’ imprisonment, which the judge deemed just, fair and balanced.

Grounds of appeal

11.The applicant has advanced 5 homemade grounds of appeal.  Ground 1 argues that the sentences for all three charges should have been ordered to run wholly concurrently, since they all arose from the same set of facts.  He cites the case of HKSAR v Ngai Yiu Ching[11] as authority for this proposition.

12.Ground 2 contends that the overall sentence of 8 years’ imprisonment was manifestly excessive and wrong in principle, resulting in an unduly harsh punishment.  He cites the cases of HKSAR v Pau King Kong[12] and HKSAR v Yu Tak Kwong[13] as authority for this proposition. 

13.Ground 3 avers the judge was wrong to enhance the starting point by 8 months’ imprisonment for committing Charge 3 whilst on bail. 

14.Ground 4 complains the judge failed to give a 10% to 25% reduction on the basis that some of the drugs were “possibly” for his own consumption, given the applicant’s then addiction and his testing positive for cocaine in his urine upon admission to Lai Chi Kok Reception Centre on 7 April 2022[14]. For this proposition, the applicant relies on the cases of Kong Tat Lung[15], HKSAR v Wong Suet Hau[16].

15.Ground 5 avers that the judge failed to give any reduction for the applicant’s family and personal circumstances.  The offences were said to be committed to pay for his mother’s medical expenses.  The lengthy imprisonment has deprived him of the chance of caring for his sick mother, who is said to have no one to look after her following the death of his father. 

Respondent’s submissions

16.In respect of Ground 1 (concurrent sentences), Mr Wilson Lam, for the respondent, argued that the three counts did not stem from a single transaction or course of criminal conduct, thereby justifying concurrent sentences: the incidents occurred five months apart and involved different facts and circumstances.  Even the applicant’s counsel had conceded during mitigation that it would be “artificial to say it is one transaction.  It is not”[17].

17.For Ground 2 (totality), the respondent submitted that the judge had correctly followed the six-step approach in HKSAR v Herry Jane Yusuph[18]and the sentence could not be said to be manifestly excessive.  However, he suggested the judge had been lenient in finding the applicant to be a mere courier when his role was more active; and in not treating the applicant’s prior conviction for possession as an aggravating factor.  Mr Lam pointed out that the totality principle had been expressly considered by the judge: Herry Jane Yusuph, HKSAR v Lee Ming Ho[19]; Ngai Yiu Ching[20].

18.In respect of Ground 3 (offending whilst on bail), Mr Lam pointed out that committing an offence on bail is an established aggravating factor: HKSAR v Leung Ting Fung & Anor[21].  The enhancement of 8 months’ imprisonment, though perhaps on the high side, was not manifestly excessive compared with other drug trafficking cases, such as HKSAR v Yuen Gang Shing[22] (a 12-months’ enhancement); HKSAR v Wong Yun Fat[23] (a 6-months’ enhancement).

19.As to Ground 4 (no discount for own consumption), the respondent contended that there was no evidence that a significant portion of the drugs was for the applicant’s own personal use.  The judge had fairly and properly addressed the matter and invited further evidence from the defence to support the claim but this was declined.  More importantly, the applicant had admitted in the summary of facts, and expressly in his Form XI Notice, that he possessed all of the drugs for the purpose of trafficking.  

20.For Ground 5 (family and personal circumstances), the respondent maintained that personal circumstances carry minimal weight in cases involving serious drug trafficking, as societal interests in deterrence and punishment were paramount.: Herry Jane Yusuph[24].  The respondent noted that the applicant had operated his own business but nevertheless chose to commit this offence[25]; while his 57-year-old mother is recovering from cancer and is being cared for by his sister and brother-in-law[26].

Consideration

21.The three charges involved a total of 123.78 grammes of cocaine.  Under the Court’s new guidelines in HKSAR v Huang Ruifang (No 3)[27], as well as those pertaining at the time of sentence, this quantity would attract a starting point of 9 years and 11 months’ imprisonment on a strictly arithmetical basis.  If the starting point were enhanced by 8 months’ imprisonment for the aggravating factor of committing the offence whilst on bail, the sentence would become 10 years and 7 months’ imprisonment after trial.  By discounting the notional sentence after trial by one-third, the sentence would be reduced to about 7 years’ imprisonment, which would be one year less than the applicant received.  However, this approach might be perceived to be rather artificial because these were three offences, not one offence, committed on two separate occasions five months apart. 

22.Nevertheless, it is reasonably arguable that the overall sentence for the three offences is on the high side.  8 years’ imprisonment would have been the appropriate starting point for a courier trafficking in about 200 grammes of cocaine, albeit on a single occasion.  I shall give leave to appeal on that basis.  The applicant will also be given an appeal aid certificate so that he may be represented at his appeal.

23.As for the applicant’s home-made grounds of appeal, Ground 1 is not reasonably arguable: these were two separate incidents, and the judge was entirely correct to consider making the sentences on Charges 1 and 2 and Charge 3 partly concurrent and partly consecutive, as he did.  Ground 4 is not reasonably arguable, the applicant having unequivocally admitted trafficking in all of the drugs, which the circumstances themselves bear out.  Nor is Ground 5 reasonably arguable: the applicant’s personal circumstances were unexceptional for cases of this type.

24.The only reasonably arguable grounds are Ground 2, inasmuch as the ground avers that the overall starting point is manifestly excessive; and Ground 3, where it might be argued that an 8 months’ enhancement for committing Charge 3 whilst on bail for Charges 1 and 2, although in itself an otherwise proper enhancement, contributed to an inflated overall sentence given the judge’s further imposition of a consecutive element of 4 years and 6 months’ imprisonment in respect of Charge 3.

25.However, the applicant should note that the respondent will argue that the judge underestimated the applicant’s role and culpability in the offences and that the sentences were justified, given the aggravating feature of committing the more serious offence whilst on bail for the first two offences.  On the face of it, there may be some merit in that submission.

26.In any event, the Court of Appeal will ultimately be interested in whether the overall sentence was manifestly excessive and/or wrong in principle in all the circumstances of the case, and less concerned by the route by which the sentence was reached.

27.I shall expect counsel who is appointed to represent the applicant to file perfected grounds of appeal in accordance with the grant of leave in this case.

Mr Wilson Lam SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person