HKSAR v. Leung Ka Yin

CACC 145/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 145 OF 2005

(ON APPEAL FROM HCCC 30 of 2005)

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BETWEEN

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Before:Hon Stuart-Moore Ag CJHC and Bokhary J

Date of Hearing:1 September 2005

Date of Judgment:1 September 2005

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.On 16 March 2005, the applicant confirmed, in the Court of First Instance before Nguyen J, the plea of guilty he had entered on his appearance in the Magistrates’ Court to a single charge of trafficking in a powder containing 7.11 kgs of 3,4-methylenedioxymethamphetamine (MDMA, known colloquially as ‘ecstasy’).  The applicant was sentenced to 12 years’ imprisonment against which he now seeks leave to appeal.

2.The Summary of Facts agreed by the applicant shows that he was arrested on 19 August 2004 after he was seen driving a car into the Sheung Shui Centre.  He left the car for a short while and, when he returned to it, he took out 2 paper bags.  Immediately afterwards, as he was being intercepted, he dropped the bags and fled.  He was quickly caught and admitted delivering ‘fing tau’ for a promised reward of $20,000.  This, he said, was in order to help himself financially because, at the time, his wife was pregnant.  Later, he made a detailed confession about his involvement in the course of 2 video-recorded interviews and, as we have indicated, he pleaded guilty at the earliest opportunity.

3.The value of the ecstasy being trafficked by the applicant, aged 31, was in excess of $4.5 million.  The applicant has a bad criminal record.  His convictions include three offences of possessing dangerous drugs for which on each a Drug Addiction Treatment Centre order was made.  More recently, on 6 May 1999, the applicant was convicted of 6 offences of trafficking in dangerous drugs and sentenced to a total of 6 years’ imprisonment. 

4.In the present case, the only mitigation which was advanced on the applicant’s behalf, apart from his guilty plea, related to his family background and this was noted by the judge. 

5.The judge was well aware of the sentencing guidelines for ecstasy in HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 378 where this court indicated that when the narcotic content has exceeded 800 grammes, sentences of “8 years and upwards” should be considered.  Here, as the judge said, the quantity was well over eight times that amount. 

6.The judge then went on to consider what was said in HKSAR v Suen Yung-yung & Anor, CACC 509/2001, which involved a conspiracy to traffic in dangerous drugs by the importation from Indonesia of over 60,000 tablets containing about 9.75 kgs of ecstasy, commenting that the Court of Appeal had approved the 20-year starting point adopted in that case.  He then correctly indicated that, without the element of importation, the present case was in a less serious category of offence.  However, as against this, the judge also had in mind the fact that the applicant was a repeat-offender as regards trafficking in dangerous drugs which he took to be (following HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 at 833 and [1999] 3 HKC 848 at 850) an aggravating factor so far as sentence was concerned.  With these considerations in mind, the judge then adopted 18 years’ imprisonment as an appropriate starting point, reducing this to 12 years’ imprisonment to reflect the timely plea of guilty.

7.In his homemade grounds of appeal, the applicant emphasised a number of circumstances relating to his family, including the fact that his father is suffering from liver cancer, that his sister is suffering from mental problems and that his mother died when his youngest brother was born.  Whilst we can accept the truth of all of these points, having been shown documentary evidence in support of them, and while we have every sympathy for the applicant in respect of these matters, it is quite clear that we would not be entitled to take them into account in any meaningful way in regard to an offence as serious as this.  The tariffs for trafficking in dangerous drugs are well known and are seldom, if ever, affected by personal considerations of this kind.  Trafficking in drugs, particularly on the level at which the applicant was engaged, disrupts families on a wide scale and destroys countless individual lives and it is precisely for this reason that sentencing policy in Hong Kong avails itself of draconian measures as a counter to the threat posed by criminal gangs of traffickers and those they employ in the furtherance of such activities.  We should add that these sentiments are reflected in R v Lau Tak-ming & Ors [1990] 2 HKLR 370 at 386 where Silke VP, giving the judgment, said:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors, which for less serious offences could lead to a discount, having little weight. … Drug dealers are notorious for attempting to elicit sympathy from the courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

8.In a further ground of appeal, the applicant stated that the judge had been incorrect in saying that his last discharge from prison had been on 27 November 2003 and that “the present offence was committed less than a year later in August 2004”.  The judge had taken this date from an antecedent statement which went uncorrected in the court below but, in any event, the present offence was committed at a time which was well inside 6 years from the date when he received his 6-year prison sentence for trafficking in dangerous drugs.  Plainly, the applicant had learnt nothing from his previous incarceration.

9.In the last of the grounds of appeal with which we need to deal, the applicant complained that the same judge who sentenced him had imposed a comparatively light sentence in HCCC 7/2004 for a similar case involving a greater quantity of dangerous drugs.  In one sense, this was an understandable complaint in the light of the facts about which we have been told.  However, while an apparently lenient sentence imposed in another, wholly unrelated, case may have given rise on the part of the applicant to a feeling of grievance, we cannot in such circumstances regard this as a ground for reducing his sentence when this was fully in accordance with current sentencing practice for this kind of trafficking.

10.There is no merit in this application and it is dismissed.

Mr Vincent Wong, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.