HKSAR v. Tse Shek Kwai

CACC 46/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 46 OF 2006

(ON APPEAL FROM HCCC NO. 296 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Beeson J

Date of Hearing: 30 May 2006

Date of Judgment: 30 May 2006

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J U D G M E N T

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

1.This is an application for leave to appeal against sentence.

2.On 30 July 2005, the applicant was intercepted at the Lo Wu Border Crossing Point.  He was told that he was suspected of carrying drugs and that he would be searched.  The applicant immediately produced from his waist two packets containing methamphetamine hydrochloride (ice) and, from the sock on his right leg, he took out two smaller packets which contained heroin hydrochloride.  The ice had a narcotic content weighing 510 grammes and this was valued at about $213,000.  The weight of the narcotic in the heroin mixture was 47.97 grammes and was valued at about $23,000.  The applicant later admitted that he had been paid $3,000 by someone he called ‘Fat Ken’ to bring the drugs to Hong Kong from the Mainland.

3.The applicant, aged 57, has a bad criminal record having been before the courts on 34 previous occasions.  He has on numerous occasions been sentenced to imprisonment.  In 1995, he was sentenced to 6 years’ imprisonment for trafficking in dangerous drugs and he was convicted of two like offences in 2002 when he received a total sentence of 3 years’ imprisonment.

4.Deputy High Court Judge Poon, when sentencing the applicant on 23 January 2006, said:

“… I have taken into account the nature of the offence, the different kinds of drugs involved and the sentencing authorities and tariffs.  In cases involving different drugs, a combined approach is usually adopted in sentencing, i.e., the whole of the narcotic weight of the drugs is to be taken into account.  In the present case total narcotic weight, 557.97 grammes.

Sentencing tariff and progression of scale in respect of ice and heroin differ.  For ice weighing between 300 to 600 grammes the starting point is between 14 to 18 years’ imprisonment, whilst for heroin weighing between 400 to 600 grammes, the starting point is 15 to 20 years.  I am of the view that should all the drugs in the present case be ice, or heroin, the starting [point] should be one of 18 years.

I adopt that as the starting point.  I shall give [the] defendant the full one-third discount for his plea of guilty.  He is sentenced to 12 years’ imprisonment.”

5.In combining the narcotic weight of the two drugs to find a starting point for sentence, the judge’s approach, following HKSAR v Chan Hei-kam CACC 229/1999 and HKSAR v Yip Pik-Kwai [1999] 3 HKLRD 42, was entirely correct.

6.The applicant’s complaint that the sentence was excessive, raised in his original ground of appeal, is without substance.

7.However, in a recent written communication with the court dated 4 May 2006, the applicant has expanded on his earlier ground of appeal.  The only matter of any potential weight arising from this letter was the applicant’s suggestion that his revelations to the police about ‘Fat Ken’, who the applicant alleged was the “boss behind the scenes”, should have been acknowledged by the judge as an act of providing useful information to the police.  It was the applicant’s contention, therefore, that the information he had given deserved recognition as a factor to be taken into account in mitigation.

8.In the proceedings today, the applicant suggested (for the first time) that he had provided the police with the telephone number for ‘Fat Ken’, but Ms Wong Kam-hing, on behalf of the respondent, has assured us that the applicant provided no information to the authorities which could be regarded as having any value whatsoever.  She also told us about the contents of the conversation between the police and the applicant which was the subject of a video-recording.  The applicant is there recorded as denying any knowledge of Fat Ken’s telephone number.

9.There is no substance in this application and it is dismissed.

Ms Wong Kam Hing, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.