HKSAR v. Lau Dick Yung

CACC 327/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 327 OF 2008

(ON APPEAL FROM HCCC NO. 150 of 2008)

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BETWEEN

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Before: Hon Ma CJHC, Stuart-Moore VP and Wright J

Date of Hearing: 17 February 2009

Date of Judgment: 17 February 2009

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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.The applicant, aged 32, pleaded guilty on 18 September 2008 before Deputy High Court Judge Mackintosh to a charge of trafficking in 1,987.69 grammes of powder containing 1,605.46 grammes of ketamine for which he received a sentence of 8 years’ imprisonment on the same day.

2.The applicant now seeks leave to appeal against his sentence. 

3.This was an importation case.  The applicant was intercepted as he left the Customs Arrival Hall at Lo Wu Control Point at 5.32 pm on 1 April 2008.  When searched, he was found to have 3 plastic bags strapped to his body.  He explained to the arresting police officer that he was bringing ‘K Chai’ into Hong Kong from the Mainland in order to earn $8,000.  The value of the ketamine was $256,412.

4.The judge made it plain to the applicant that the new, and higher, sentencing guidelines for ketamine traffickers, given on 6 June 2008 in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, would not apply to his case as his offence was committed about two months before those guidelines were issued.  Accordingly, as the judge also explained, the lower guidelines for trafficking in ecstasy in HKSAR v Lee Tak-kwan [1998] 2 HKC 371, which had also been applied in ketamine cases, would be applicable to this case. 

5.The suggested sentence after trial for amounts of over 800 grammes under the guidelines in Lee Tak-kwan is “8 years’ imprisonment or upwards”.  The judge then analysed a number of earlier decisions involving ketamine weighing above 800 grammes, noting that in Lee Tak-kwan importation was regarded as a factor in aggravation of the sentence for traffickers.  He then said:

“… I note that in the new guideline case, Hii Siew Cheng, the quantity of ketamine imported by the defendant was almost exactly the same as in this case, and the judge, using the old guidelines, adopted 11 years as a starting point.  There does not seem to have been any particular reference to the aggravation of importation by the Court of Appeal.

Having regard to all these matters, including the aggravation of importation, I judge that the proper starting point here is 12 years’ imprisonment.”

6.The judge then reduced the applicant’s sentence by a third to reflect his plea of guilty.

7.Mr Tong, who also appeared on the applicant’s behalf in the court below, advanced a single ground of appeal, submitting that the judge’s sentence was “manifestly excessive and/or wrong in principle”.  We can say immediately that there was nothing, in principle, which is inappropriate about the sentence and it is quite apparent, as Mr Tong has accepted, that any suggestion to the contrary is unarguable.

8.In regard to the contention that the sentence was manifestly excessive, Mr Tong drew our attention to two decisions of the Court of Appeal which he had placed also before the sentencing judge.  In the first of these, HKSAR v Tsang Wai-kei, CACC 452/2002, where the trafficking involved 4.2 kilogrammes of ketamine, there was no element of importation involved.  We hardly need to emphasise this as the judge, when sentencing, had also commented on this.  The sentence in that case was 8 years’ imprisonment after a one-third reduction in the starting point of 12 years following that defendant’s plea of guilty.

9.The other case Mr Tong relied upon, HKSAR v Sankar Babu Raajeshwari, CACC 238/2006, involving 4.19 kilogrammes of ketamine, was an importation case.  The judge in that case sentenced the defendant to 13 years’ imprisonment, a decision which Yeung JA described as “… far from being manifestly excessive, [it] is in fact quite a lenient sentence, considering that the applicant was in fact importing the dangerous drugs into Hong Kong”.

10.In the present case, the applicant’s sentence under the old guidelines was, in our opinion, appropriate.

11.The application is dismissed.

Mr John Reading, SC, DDPP and Mr Bobby Cheung, PP, of the Department of Justice, for the Respondent.

Mr Tong Ming, instructed by Messrs Tsangs, assigned by Director of Legal Aid, for the Applicant.