HKSAR v. Lai Yung Ngai and Another

CACC 335/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 335 OF 2008

(ON APPEAL FROM HCCC 142/2008)

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BETWEEN

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Before: Hon Yeung JA and McMahon J

Date of Hearing: 13 April 2010

Date of Judgment: 13 April 2010

Date of Handing Down Reasons for Judgment: 16 April 2010

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REASONS FOR JUDGMENT

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

Introduction

1.The applicants, Lai Yung-ngai (“Lai”) and Cheung Wai-leung (“Cheung”), were arrested at the Departure Hall of the Hong Kong International Airport on 30 December 2007. They both had e-tickets and travel documents to go to Australia.

2.Lai was found to have four packets of “ice” strapped to his thighs and calves. The total weight of the “ice” was 985.68 grammes of crystalline solid containing 980.1 grammes of methamphetamine hydrochloride.

3.Both applicants admitted that they had agreed to take the “ice” to Australia for monetary rewards.

4.Lai was 34 years old with a clear record. Cheung was 38 years old with three previous convictions, none of which was drug-related.

5.The applicants were both charged with trafficking in the “ice” found on Lai’s person.The applicants pleaded guilty to the charge on 6 June 2008 in the magistracy and were remitted to the High Court for sentence.

6.On 23 September 2008, Lunn J sentenced both applicants to 14 years’ imprisonment. The judge accepted the 21 years’ starting point suggested by defence counsel Mr Collins and reduced it by one-third on account of the guilty pleas.

7.Represented by Mr Andy Hung, the applicants sought leave to appeal against sentence.

8.On 13 April, 2010 we dismissed the application and indicated that we would hand down our reasons in due course and this we now do.

Grounds of Appeal

9.Mr Hung suggested that the 21-year starting point, when comparing with other “ice” trafficking cases, was excessive and that a more appropriate starting point was at most 18 years and 9 months. Mr Hung suggested that there should be a 1-month increase in sentence beyond 18 years for every additional 20 to 30 grammes of “ice” beyond 600 grammes.

10.Mr Hung referred us to HKSAR v Chong Vui Leong and Chok King Foh (unreported, CACC 351/2008), HKSAR v Ng Kei Tiong, Purbasasmita Gandha (unreported, CACC 456/2007) and other similar cases to support his contention. Mr Hung relied particularly on HKSAR v Chong Vui Leong and Chok King Foh (unreported, CACC 351/2008) where the Court of Appeal adopted the respective starting points of 19 years and 3 months, and 21 years for trafficking in about 1,200 grammes and 1,700 grammes of “ice”.

Discussion

11.In AG v Ching Kwok-hung [1991] 2 HKLR125, the Court of Appeal, in laying down sentencing guidelines for trafficking in “ice”, held that trafficking between 300 and 600 grammes of “ice” should attract a sentence of between 14 and 18 years’ imprisonment and trafficking in over 600 grammes should attract 18 years and upwards. Silke VP further said at p 130 of the judgment:

“By upwards we mean, as was indicated in Lau Tak-ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice. In coming to this tariff we have in mind the maximum penalty is life imprisonment.

In considering the appropriate sentence, a sentencing judge can justifiably give allowance for a plea of guilty, assistance to the police, co-operation with them, the giving of evidence against other drug traffickers whether for this drug or otherwise, clear records and any matter personal to a prisoner.”

12.The applicants were trafficking in almost 1,000 grammes of “ice”, 66% more than 600 grammes, which attracts a cut off sentence of 18 years.

13.There may well be cases where more lenient sentences were imposed, but that is not the issue we are concerned with. In determining if we should interfere with a sentence, this court is not concerned with whether it is heavier than one which was imposed on another offender in an entirely different case. The only issue that we have to consider is whether the starting point of 21 years and the ultimate sentence of 14 years imposed on the applicants are manifestly excessive.

14.Despite the effort by Mr Hung, we were not persuaded that they were.

15.The applicants, together, tried to bring a large quantity of “ice” to Australia by joining a tour group. There was an “international” element and what the applicant did put the leader and other members of the tour group in danger. The offence was carefully planned and meticulously executed.

16.On the facts of the case, the starting point of 21 years and the ultimate sentence of 14 years were not manifestly excessive. The application for leave to appeal against sentence was therefore dismissed.