HKSAR v. Kao Chien Kuo

CACC 419/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO 419 OF 2007

(ON APPEAL FROM HCCC NO. 245 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, McMahon J and Saunders J

Date of Hearing: 18 December 2008

Date of Judgment:  18 December 2008

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J U D G M E N T

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Saunders J (giving the judgment of the Court):

1.The applicant seeks leave to appeal against the sentence imposed upon his conviction, on 15 November 2007, by Deputy High Court Judge Geiser, on two counts of trafficking in dangerous drugs, contrary to s 4(1) & (3) of the Dangerous Drugs Ordinance Cap 134.

2.The applicant, a Taiwanese national, was a passenger departing from Hong Kong International Airport, on a flight bound for Jakarta, Indonesia, on 16 May 2007.  In the departure level of the airport he was intercepted by Customs officers and searched.  The search revealed a number of packets of substances strapped around his lower legs.  Upon enquiry he admitted that they were dangerous drugs.  A further search found more packets concealed inside his underpants.  In all five packets were found.

3.On analysis by the Government Chemist, the five packets were found to contain 978.75 g of a crystalline solid containing 946.97 g of methamphetamine hydrochloride, commonly known as ice.

4.A search of the Applicant’s luggage revealed 200 nimetazepam tablets concealed inside a shoe.  Analysis by the Government Chemist showed that the 200 tablets contained 1.71 g of nimetazepam.

5.On enquiry by the Customs officers, the Applicant admitted that the items were dangerous drugs.

6.On his first appearance in Eastern Magistrates Court on 5 October 2007, the Applicant pleaded guilty to two charges of trafficking in dangerous drugs, and was committed to the Court of First Instance for sentence.

7.In fixing the appropriate sentence, the judge correctly referred to AG v Ching Kwok Hung [1991] 2 HKLR 125, in which the tariff for trafficking in over 600 g of ice was set at 18 years and upwards. Taking a starting point of 19 ½ years, the judge gave the applicant credit for his plea of guilty and reduced the sentence by one third.  On the charge of trafficking in ice the applicant was sentenced to 13 years imprisonment.  On the charge of trafficking in nimetazepam the applicant was sentenced to 16 months imprisonment, to be served concurrently.

8.In his grounds of appeal the applicant first refers to two similar cases, one involving 940 g of ice, in which a starting point of 18 years was taken, and a sentence of 12 years imposed, the other involving 1,200 g of ice, in which a starting point of 19 years was taken, and a sentence of 12 years and 8 months imposed.  He asserts that the starting point of sentence of 19 ½ years imposed in his own case, by comparison, was excessive.

9.Having regard to the tariff established in Ching Kwok Hung, we are satisfied that the starting point adopted by the judge cannot be criticised, indeed a higher starting point could not have been criticised.  While it may be that in other cases, involving other facts, more lenient sentences have been passed, those cases cannot assist the applicant in this case.  The correct starting point having been adopted by the judge, and a full discount having been given to reflect the Applicant’s plea, it cannot be said in this case that the sentence imposed was manifestly excessive.

10.Next, the applicant says that his counsel at sentencing failed to inform the trial judge that he had been forced to agree to undertake the trafficking in order to repay a loan of RMB100,000 that had been made to him in Taiwan.  In fact the submission made by counsel was that as a result of an addiction by the applicant to soccer betting he had lost a total of RMB100,000 and that the applicant had been forced by the bookmakers to undertake the drug-trafficking in return for a reduction from the debt on the sum of RMB30,000.  The judge was fully alive to the applicant’s financial situation when passing sentence.  Whether the debt arose from gambling or a loan is irrelevant.

11.Next the applicant says that his counsel failed to put to the judge a letter of commendation and support from a director of CCTV with whom the applicant had previously worked.  It is right that the letter was not put before the judge, but the transcript of the submission made by counsel demonstrates that the substance of the content of the letter was set out for the judge.

12.Finally, the applicant reminds us that he has an 84-year-old father who suffers from hypertension and cardiovascular disease and that he wishes to be able to discharge his filial piety to his parents before it is too late, while they are still alive.  It is unfortunate that he is unable to be with his parents, but that is not a basis upon which we can interfere with a sentence that is in all respects entirely proper.

13.The application for leave to appeal must be dismissed.

Mr John Reading SC, DDPP, and Ms Anna Lai, SPP, both of the Department of Justice, for the Respondent

The Applicant, in person.