HKSAR v. Wong Ping Kay

[English Translation – 英譯本]
CACC 274/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 274 OF 2007

(ON APPEAL FROM HCCC NO. 107 OF 2007)

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Coram: Hon Cheung and Yeung JJA in Court

Date of Hearing: 8 May 2008

Date of Judgment:  29 May 2008

JUDGMENT

Hon Yeung JA (giving the judgment of the Court):

Background

1.On 19 January 2007, Wong Ping Kay, the Applicant herein, arrived in Hong Kong from Caracas via Paris.  From his luggage, 1,455.19g of a mixture containing 810.77g of cocaine was found, the retail price of which was approximately HK$1.5 million.  The Applicant admitted that, having brought the drug to Hong Kong, he would then take it to the Mainland for the purpose of earning a reward of HK$10,000 or HK$20,000.

2.As a result of the above incident, the Applicant was charged with one count of trafficking in a dangerous drug.  He pleaded guilty before Barnes J and was sentenced to imprisonment for 16 years and 8 months.

3.The Applicant now applies for leave to appeal against sentence.

Trial judge’s reasons for sentence

4.The trial judge was mindful of the Applicant’s numerous previous convictions of which 11 were drug-related.  The latest one was in 2001 when the Applicant was sentenced to 12 years’ imprisonment for an offence of manufacturing dangerous drugs.

5.The trial judge referred to a number of cases which indicated a starting point of 25 years or above was adopted for trafficking in cocaine of more than 800g.  The trial judge pointed out that in HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 a starting point of 27 years was adopted against the defendant who trafficked in more than 3,000g of cocaine, whereas in HKSAR v Leang Sze Keong (unrep., CACC 566/1997) a starting point of 25 years was also adopted where the defendant trafficked in 889g of heroin.

6.The trial judge highlighted the Applicant’s extensive conviction record in drug trafficking and said that, pursuant to the guidelines set out in HKSAR v Chan Pui Chi [1999] 3 HKC 848, the tariff laid down in R v Lau Tak Ming & others [1990] 2 HKLR 370 for trafficking in heroin / cocaine should be raised.

7.The trial judge did not agree to lower the appropriate starting point on account of the Applicant’s age of over 60.

8.In the end, the trial judge adopted a starting point of 25 years and, giving the usual one-third discount for his guilty plea, sentenced the Applicant to imprisonment for 16 years and 8 months.

Grounds of appeal

9.Mr. Poon, Counsel for the Applicant, contends that, in view of the Applicant’s age, a custodial sentence with a term running to 16 years and 8 months is tantamount to a life imprisonment and is a destructive sentence.

10.Mr. Poon points out that, in sentencing, the trial judge twice emphasized that the Applicant had been convicted of manufacturing dangerous drugs and sentenced to 12 years’ imprisonment, but in fact the term of that sentence was reduced to 6 years and 8 months on appeal.  Mr. Poon submits that the term of 6 years and 8 months indicated that only a limited quantity of  dangerous drugs was involved in that case.

11.Mr. Poon also submits that in the abovementioned case of Hong Chang Chi the defendant trafficked in cocaine of 3,000g, which far exceeded the quantity involved in the present case, but was in the end sentenced to imprisonment for 17 years only.  Mr. Poon stresses that the defendant in that case was merely aged 37 and therefore 17 years’ imprisonment in no way resembled a “life imprisonment”.

12.Mr. Poon insists that, in view of the Applicant’s background, in particular his age, a starting point of 25 years and the eventual sentence of 16 years and 8 months are manifestly excessive.

Discussion

13.As far as the offence of trafficking in a dangerous drug is concerned, the starting point is determined mainly by reference to the quantity of the drug in question.  Other aggravating or mitigating factors, though not entirely irrelevant, should not be accorded significant weight in the sentencing process.  As the courts have repeatedly emphasized, drug trafficking is a serious offence which causes grave social harm and, as such, calls for deterrent sentences.  Those who are minded commit the heinous offence of drug trafficking should be made aware of the consequences they will inevitably face once they are caught, so that they will not bet on their luck.  For this reason, the sentencing guidelines laid down by the Court of Appeal for this type of offences should be followed as closely as possible and should not be departed from due to particular aggravating or mitigating factors.

14.The trial judge emphasized that the Applicant had numerous previous convictions, 11 of which were drug-related, and one of which was for an offence of manufacturing dangerous drugs which entailed a sentence of 12 years’ imprisonment.  The trial judge overlooked the fact that the term of that sentence had been reduced to 6 years and 8 months upon appeal.

15.A lengthy criminal record may well be an aggravating factor (see the judgment in the abovementioned case of Chan Pui Chi).  However, as pointed out above, such an aggravating factor is of limited weight in the context of drug trafficking offences.  Accordingly, whatever the final sentence imposed on the Applicant for the drug manufacturing offence was, it should not have much bearing on the starting point to be applied in the present case.  As a matter of fact, the conviction records of the Applicant show that the drug-related offences he committed in the past were not of a very serious nature, with custodial sentences of less than 2 years being imposed, and the drug manufacturing offence for which he was sentenced to imprisonment for 6 years and 8 months involved dangerous drugs of merely 10-odd g.

16.Having said that, we do not agree with Mr. Poon’s submission that, in view of the Applicant’s age of 60, the term of 16 years and 8 months is equivalent to a “life imprisonment” and a “destructive sentence” and must therefore be reduced.

17.As we have repeatedly emphasized, drug trafficking is a serious offence which warrants deterrent sentences.  That the offender is particularly old or young or is under a disability will not constitute a strong or adequate mitigating factor.  The purpose of this sentencing approach is to discourage drug traffickers from making use of aged, young or disabled people to participate in those heinous offences.

18.We do not agree with Mr. Poon’s submission that the term of 16 years and 8 months is, as far as the Applicant is concerned, equivalent to “life imprisonment” and hence a “destructive sentence” which must be reduced.  A similar contention was rejected by this Court in R v Chen Chun-yeh CACC 513/1966.

19.If, by reason of his old age, the Applicant is likely to pass away in prison, he may seek pardon from the Chief Executive if necessary.  However, the sentencing court cannot rely on the defendant’s old age as a reason for departing from the sentencing norm and making special arrangements.  Of course, the court may, depending upon the circumstances of each case,  exercise its discretion in making minor adjustments to the sentence on the basis of the defendant’s old age.

20.The starting point for trafficking in cocaine is the same as that for trafficking in heroin (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69).

21.On the basis of Lau Tak Ming, trafficking in heroin of 400g to 600g attracts a starting point of 15 to 20 years, whereas heroin of more than 600g falls into the category of “very substantial quantities”.  The starting point for trafficking in “very substantial quantities” of heroin is to be enhanced from the ceiling of 20 years in the guidelines laid down in Lau Tak Ming.

22.In Lau Tak Ming, no clear sentencing guidelines were laid down for trafficking in heroin of more than 600g.  However, it was held in some cases that the upward adjustment should not be directly proportional to the increase in the quantity of drugs involved.

23.The present case involved approximately 800g of cocaine, which is 200g in excess of the 600g that attracts a starting point of 20 years.  The starting point of 25 years adopted by the trial judge is not completely out of proportion.  Nevertheless, if trafficking in cocaine of 800g justifies a starting point of 25 years, what starting point should be adopted by the court in cases involving trafficking in heroin / cocaine of 1,500g or 2,000g or more?  Should it be 30 years or even more?

24.We note that in R v Ho Chi Ming [1995] 2 HKCLR 29, the 23-year-old defendant trafficked in heroin of 1,200g from Hong Kong to Taiwan, and the sentencing judge also adopted a starting point of 25 years.

25.However, the quantity of drugs involved in the present case is less than that in Ho Chi Ming by one-third.

26.In the abovementioned case of Hong Chang Chi, the defendant trafficked in as much as 3,000g of cocaine, which was almost four-fold more than the quantity involved in the present case, but a starting point of only 27 years was adopted.  In view of the quantities of drugs involved in the two cases, the two sentences are disproportionately discrepant.  The defendant in that case, who had pleaded guilty, was sentenced to a term of 17 years, which is only 4 months more than the term imposed on the Applicant.

27.We also note that in the abovementioned case of Leang Sze Keong, which involved trafficking in 889g of heroin, the trial judge adopted a starting point of 25 years, and it was approved by this Court.

28.However, we must point out that the quantity of drugs involved in that case was 80g more than that involved in the present case.  The Court of Appeal’s judgment in that case contained no more than three paragraphs.  Apart from stating that the starting point of 25 years was in line with the one laid down in Lau Tak Ming, the Court did not go on to discuss the issues arising out of the case, perhaps because the defendant in that case was not legally represented and hence no sufficient assistance was offered to the Court.  In our judgment, the sentence in Leang Sze Keong is not binding on us.

29.Page 600 of Sentencing in Hong Kong (Cross & Cheung, 5^th Edn.) sets out a number of sentencing cases involving trafficking in large quantities of heroin.  In HKSAR v Li Lap-fo Cr App 639/1999, which involved more than 5,000g, a starting point of 24 years was adopted; in HKSAR v Chiu Ho-chung [2001] 1 HKLRD 697, which involved almost 5,000g, a starting point of 25 years was adopted; in HKSAR v Lam Kam-kwong [2002] 1 HKC 541, a starting point of 24 years was adopted in respect of a quantity approaching 1,500g.

30.In light of the above cases, we hold that for the offence of trafficking in 800g of heroin or cocaine, a starting point of 25 years is excessive, and one of 22 years is sufficient.

31.As the Applicant pleaded guilty, the term should be reduced by one-third to 14 years and 8 months.  We see no other factors that justify a further reduction.

Conclusion

32.We allow the Applicant’s application for leave to appeal against sentence and treat the application as the appeal proper.  We allow the appeal and reduce the sentence from 16 years and 8 months to 14 years and 8 months.

Ms. Winsome Chan, Senior Government Counsel, for the Respondent.

Mr. Jackson Poon, instructed by the Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.