HKSAR v. Lam San Yau

CACC 38/2025 [2025] HKCA 1043

On appeal from [2025] HKCFI 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2025

(ON APPEAL FROM HCCC NO 166 OF 2024)

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BETWEEN

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.The applicant pleaded guilty before a magistrate to a charge of trafficking in a dangerous drug, namely 26.9 grammes of a solid containing 1.38 grammes of methamphetamine and 14.9 grammes of a crystalline solid containing 14.7 grammes of methamphetamine hydrochloride (commonly known as “Ice”). He was duly committed to the High Court for sentence. On 5 February 2025, Deputy Judge Vinci Lam, SC (“the judge”), sentenced the applicant to 6 years’ imprisonment.

2.On 24 February 2025, the applicant applied for leave to appeal against his sentence.  On 11 April 2025, he was granted legal aid and Ms Annie Lai was assigned to act as his counsel. 

The summary of facts

3.The summary of facts outlined to the judge and admitted by the applicant was as follows[1]. At around 5 pm on 11 July 2022, police officers were observing the staircase on the 24^th floor of Tsui Hon House, Tsui Ping South Estate, No. 18 Tsui Ping Road, Kwun Tong, when a woman opened the door of Room 2417 (“the flat”)  to receive a food delivery.  The police intercepted the woman and entered the flat, where they found the applicant, the registered tenant of the flat, in a bed in the living room.  Pursuant to a search warrant, the police searched the flat and found on the bed shelf a pink box containing four resealable plastic bags with 1.38 grammes of methamphetamine (Exhibit P3)  and 14.7 grammes of Ice (Exhibits P4 to P6)  as particularised in the count, along with an electronic scale, and HK$1,420 in cash.  Inside a wall shelf, the police found a plastic tray containing a substance that was not a dangerous drug (Exhibit P7). 

4.The applicant was arrested and, under caution, stated that he had purchased the dangerous drugs for his own consumption and asked for leniency.

5.In a video recorded interview, the applicant admitted purchasing the drugs a week earlier.  He stated that he bought Exhibits P3 and P7 for HK$3,000 from an unknown male in a nearby park, and Exhibits P4 to P6 for HK$1,500 from another male at the car park gate in Sau Mau Ping, but could not provide their contact details.  He said that Exhibits P3 and P7 were wet and had a bad smell, and that he stored them in the flat.  He used an electronic scale to weigh the drugs after purchase to ensure he was not cheated by the seller. He also stated that he was living on Comprehensive Social Security Assistance (CSSA)  and was the only person who possessed the key to the flat.  The woman was his girlfriend, but they did not live together.  

6.The estimated street value of the dangerous drugs was HK$25,373.  At his plea, the applicant admitted unlawfully trafficking in the dangerous drugs.

The applicant’s background and mitigation

7.At the time of sentencing, the applicant was single and 60 years of age, having received education up to Form 1 level.  He was unemployed and reliant on CSSA prior to his arrest. 

8.Among his sixteen court appearances, the applicant had twelve previous convictions related to dangerous drugs between 1984 and 2011[2], including two for possession of equipment fit and intended for smoking, injecting, or inhaling a dangerous drug; three for possession of dangerous drugs; and seven for trafficking in dangerous drugs[3]. 

9.The applicant’s most recent similar conviction concerned a single count of trafficking in a dangerous drug, for which he was sentenced to 12 years’ imprisonment on 23 November 2011.  The sentence included an enhancement of 6 months due to his six prior convictions for similar offences[4].  He was discharged from prison on 13 April 2019[5], and the present offence was committed on 11 July 2022.  

10.In mitigation, defence counsel submitted that the applicant’s role was limited to that of a courier or storekeeper for a boss for whom he worked, in order to sustain his drug habit due to financial difficulties, and that the drugs did not belong to him.  While accepting that the sentence could be enhanced due to the aggravating feature of the applicant’s previous trafficking convictions, counsel urged the judge not to enhance the sentence, or otherwise, to adopt only a short period of enhancement.  It was pointed out that the applicant had served his previous sentences, had remained out of trouble since his last release, and had pleaded guilty at the earliest opportunity[6].

11.Counsel also produced a urine test result taken from the applicant on 13 July 2022 (i.e. shortly after his arrest), which showed he tested positive for amphetamine[7].  It was submitted that the applicant had been addicted to Ice for over 10 years, and that about a quarter of the 14.7 grammes of Ice seized (Exhibits P4 to P6), equivalent to 3.675 grammes, had been given to him by his boss and was intended for his own consumption over approximately eight days[8].  

The reasons for sentence

12.In sentencing the applicant, the judge noted that there was no evidence his role was above that of a courier or storekeeper, and adopted a starting point of 7 years and 4 months’ imprisonment for the 16.08 grammes of Ice involved, pursuant to the sentencing guidelines[9].  The judge identified the applicant’s previous trafficking convictions as a serious aggravating factor, for which she enhanced the starting point by 1 year and 8 months’ imprisonment.

13.Having regard to the admitted fact that the applicant had unlawfully trafficked in all of the Ice seized, his reliance on CSSA, and the absence of evidence from him in support of this aspect of mitigation, the judge rejected counsel’s submissions that 3.675 grammes of the Ice was for his own consumption.  The judge noted that the applicant pleaded guilty at the earliest opportunity but found no other mitigating factors that  warranted further reduction of his sentence.  After applying a one third discount for his guilty plea, the judge sentenced him to 6 years’ imprisonment. 

The ground of appeal

14.On 16 May 2025, Ms Lai, for the applicant, filed perfected grounds of appeal, advancing a sole ground of appeal against sentence.  It was contended that the judge’s enhancement of 1 year and 8 months, based on the applicant’s previous convictions, was disproportionate to the initial starting point of 7 years and 4 months, resulting in a total sentence of 6 years’ imprisonment that was manifestly excessive.  She suggested an appropriate enhancement on the starting point should be in the region of 6 months.

15.Ms Lai referred to HKSAR v Le Huu Nghi[10], where the Court considered the 6-month enhancement for similar previous convictions, amounting to almost a 10% increase on a starting point of 5 years and 3 months, to be excessive.  She submitted that, given the applicant’s criminal record and the 16.08 grammes of Ice, the 1 year and 8 months’ enhancement (representing a 22.7% increase)  was disproportionate to the original starting point of 7 years and 4 months.  She calculated that the enhanced starting point of 9 years’ imprisonment would, on an arithmetic calculation, equate to trafficking in about 40 grammes of Ice, more than double the quantity the applicant had in his possession[11].

16.Ms Lai referred to HKSAR v Chan Pui Chi[12] and HKSAR v Li Wai Keung[13], and argued that the applicant’s first four convictions were committed between 1986 and 1990, more than three decades ago, and that there was a hiatus of six years between the fourth and fifth convictions.  She also noted that the present offences were committed on 11 July 2022, which was about three years after the applicant’s release from prison on 13 April 2019.  She submitted that the judge failed to properly consider the applicant’s overall culpability and the circumstances of the case.  She pointed out that the present offence was not the worst of its kind; the quantity of drugs involved was not substantial; the drugs were found in the applicant’s residence; no other drug traffickers were present at the scene; and there were no stacks of plastic bags or packaging equipment found.

Recidivism as an aggravating feature

17.While persistent reoffending for serious offences is an aggravating feature which will invariably warrant an enhancement of sentence[14], it is not a matter that can be simply calculated by a percentage of the sentence[15] or by comparison with other cases, except to indicate the general range of enhancement[16].  The approach to be taken when dealing with such an aggravating feature was explained by Macrae VP in HKSAR v Har Tsz Yui[17]:

“Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which the judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.” (Emphasis added)

18.In determining an appropriate enhancement against a recidivist, guidance has been provided by this Court in HKSAR v So Yat Ting[18], that a sentencing court should ensure that:

“(i)  the original starting point must be proportionate to the actual sentence[19]; and (ii)  the degree of enhancement must be in reasonable proportion to the basic sentence, and the total should not be excessive[20].”

19.In appropriate cases, a defendant’s reoffending within a short period or soon after being released from prison may justify an additional increase in the enhancement for being a repeat and persistent offender: HKSAR v Tsui Chiu Kwai[21];HKSAR v Suen Ping[22].  However, in the circumstances of the present case, it was not until some three years after his release from prison that the applicant committed the current offence.

20.The judge was correct to adopt a starting point of 7 years and 4 months’ imprisonment for trafficking in the quantity of drugs involved.  She was also correct to treat the applicant’s previous criminal convictions for drug offences as a serious aggravating factor, warranting an enhancement to his sentence.  The applicant has an appalling history of flouting the law, and in the last few decades of his life has been mainly spent in prison.  In December 1997, he was sentenced to 11 years and 6 months’ imprisonment for trafficking in a dangerous drug, and in November 2011, he received a 12 year sentence for the same offence.  The judge was clearly influenced by the number and seriousness of the prior convictions for a similar offence.  However, punitiveness for the prior convictions needs to be balanced against the comparative seriousness of the current offence, and for that reason, the enhancement was excessive.

21.In our judgment, an appropriate enhancement for the applicant’s repeat offending was 12 months, which is in reasonable proportion to the basic sentence.  This would result in a notional starting point of 8 years and 4 months’ imprisonment, which, after the one third reduction for the applicant’s guilty plea, would result in a sentence of 5 years and 6 months’ imprisonment.

22.For the reasons we have stated, we grant the applicant leave to appeal against his sentence, and treating the leave hearing as the appeal, allow the appeal by substituting his sentence with a term of imprisonment of 5 years and 6 months.

Ms Lilian Tang, PP, of Department of Justice, for the respondent

Ms Annie Lai, instructed by the Director of Legal Aid, for the applicant