HKSAR v. Lam Ying Kit

CACC 24/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 24 OF 2009

(ON APPEAL FROM HCCC NO. 221 of 2008)

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BETWEEN

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Before: Hon Hartmann JA and Macrae J in Court

Date of Hearing: 25 June 2010

Date of Judgment: 25 June 2010

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J U D G M E N T

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Hon Macrae J (giving the judgment of the Court):

1.On 7 January 2009 the applicant pleaded guilty before McMahon J to a single count of trafficking in a dangerous drug, namely 2,978.87 grammes of crystalline solid containing 2,928.15 grammes of methamphetamine hydrochloride, commonly known as “Ice”.  He was sentenced to 16 years imprisonment, from which sentence he now appeals.

2.The facts were as follows.  On 20 May 2008 the applicant was the only passenger in a hired motor vehicle which had crossed into Hong Kong from the Mainland through the Lok Ma Chau Border Control Point.  Once on the Hong Kong side of the border, the vehicle was directed into a Customs examination area where it was searched.  In the vehicle was found, on a seat behind the driver, a rucksack which the applicant was seen by the driver carrying on his left shoulder when he entered the vehicle on the Mainland.  In that rucksack were found the drugs, the subject-matter of the indictment, wrapped in tin foil in three packages.

3.The applicant, who was 35 at the time of the offence, had a number of previous convictions, including one for trafficking in a dangerous drug for which he was sentenced in 2004 in the High Court to a period of 4 years and 10 months imprisonment.  That was in fact his last appearance before the courts, prior to the present matter.

4.The operative amount of narcotic for sentencing purposes was 2,928.15 grammes of methamphetamine hydrochloride.  The judge adopted in respect of that amount a starting-point for sentence of 23 years imprisonment, which he enhanced by 1 year to reflect the fact that the drug was imported across the border with the Mainland.  From the resulting 24 years, he discounted the sentence by one-third and sentenced the applicant to 16 years imprisonment.

5.The applicant complains that 16 years was manifestly excessive, when compared with other cases said to involve similar or greater quantities yet lighter sentences.  In particular he cites a case in which he says, for a similar quantity of the same drug, the defendant was sentenced to 13 years imprisonment by the High Court in December 2002.  However, it should be remembered that whatever the sentences passed in other cases in other circumstances, this court is concerned with whether this sentence was proper within the sentencing judge’s discretion and within the appropriate guidelines and principles established for cases of this kind.

6.The case referred to by the applicant as justifying a lower sentence would appear to be, so far as our researches have found, HKSAR v Ngai Ying Cheung HCCC No. 306 of 2002, which did indeed come before the High Court in December 2002 and which eventually gave rise to Criminal Appeal No. 604 of 2002.  The defendant had originally been sentenced to 13 years imprisonment from a starting point taken by the judge of 21 years for trafficking involving an international element in 2,389.98 grammes of methamphetamine hydrochloride.  The judge at first instance appears to have been favourably impressed by letters advanced on behalf of the defendant, who was 21 years of age and of good character.  He was described as simple-minded or gullible and the judge accepted this characterisation and that he had been used by others to courier drugs.  Notwithstanding those findings, the Court of Appeal considered “…  that the starting point adopted by the sentencing judge was low given the quantity of drugs and the international aspect of the offence in question.”  It will be noted that the quantity of narcotic in that case was in fact more than half a kilogramme less than the quantity in the present appeal.

7.Consistent with that sentiment, this Court more recently in a case involving the trafficking across borders of 2.891 kilogrammes of methamphetamine hydrochloride, namely HKSAR v Alwi Tjong Criminal Appeal No. 339 of 2008, held that

“A starting point of 21 years’ imprisonment for an international drug smuggling offence involving just over 2.89 kilogrammes of ice does not sit at all comfortably with other sentences for similar crimes.”

It is clear that the Court in Alwi Tjong did not approve of the sentencing judge’s approach in that case which had resulted in the appellant receiving “a considerably shorter sentence than he deserved.”

8.The question for us is whether the sentence of 16 years’ imprisonment from a starting point of 24 years can be said to be manifestly excessive.  The quantity involved in this case was just less than 3 kilogrammes of methamphetamine hydrochloride and the trafficking was across borders by someone who was no stranger to the offence.  In our judgment the sentence was entirely appropriate and consistent with the levels of sentence in other cases of this kind.

9.There is one other matter we should address in fairness to the applicant.  It is clear that he has with some persistence indicated his wish to provide information to the Customs & Excise Department.  To that end, he has written letters to the court, the Department of Justice and the Customs & Excise Department, which have culminated in his giving a detailed witness statement to the Customs & Excise Department on 10 June 2009.  That statement has been considered by the Department of Justice which, on 17 December 2009, determined for reasons which Ms Lam has explained before us this morning that there was a “less than reasonable prospect of conviction if prosecution was commenced” on the evidence available.  Accordingly, the applicant has been informed by a Senior Assistant Director of Public Prosecutions that a prosecution would not be instituted on the basis of the applicant’s information.

10.This court can only sensibly act on information which has in fact proved of assistance in some positive way to the authorities.  Regrettably, whilst we do not doubt the genuineness of the applicant’s efforts in supplying the information, it has not provided any real assistance nor led to any tangible result.  We feel unable, therefore, to accord the information he has provided any significance in affecting what is otherwise a perfectly proper sentence.

11.Leave to appeal against sentence is accordingly refused.

Ms Lam Wing Sai, Vinci, SPP of the Department of Justice, for the Respondent

The applicant in person, present