HKSAR v. Lee Sin Seang

CACC341/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 341 OF 2010

(On appeal from High Court Criminal Case No. 5 of 2005)

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BETWEEN

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Before : Hon Hartmann JA and Chu J in Court

Date of Hearing : 31 March 2011

Date of Judgment : 31 March 2011

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

1.This is the applicant’s application for leave to appeal out of time against sentence.

2.The applicant was jointly charged with another accused for one count of trafficking in a dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The dangerous drug involved was 4,962.97 grammes of a crystalline solid containing 4,901.54 grammes of methamphetamine hydrochloride, commonly known as “Ice”.

3.At the committal proceedings held on 7 January 2005, both the applicant and the other accused pleaded guilty to the charge and were committed to the Court of First Instance for sentence. On 10 March 2005, Lunn J sentenced the applicant to 16 years of imprisonment. A similar sentence was passed on the co-accused.

4.On 24 September 2010, the applicant applied for leave to appeal against sentence and also made an application for extension of time.

Application for extension of time

5.The applicant’s application is out of time by more than five years. The relevant principles that the court has to consider in an application for time extension were set out in R v. Wong Kai Kong [1990] 1 HKC 279, 280H-281D.  They are: (1) The court has to consider the period of delay, the reasons for the failure to make the application timeously and the bona fides of the applicant. Substantial grounds must be shown for the delay before the court will grant the indulgence sought.  (2) The longer the delay, the more onerous is the duty of the applicant.  (3) It is open to the court to look at the grounds of appeal to see if they are impressive and to check that refusing leave to appeal will not shut out a substantial and plainly arguable ground of appeal.

6.In his affirmation in support of the application for extension of time, the applicant gave the following reasons for his delay:

(1) He has no knowledge and understanding of the law.

(2) He does not have legal aid and he has no financial means to obtain legal representation.

(3) His mother language is Malay whereas most of the information available to him was in English.

(4) He was not aware there was a statutory time limit for appeal against sentence.

(5) He had been transferred from one place to another and had been deprived of the relevant papers of his case.

7.We do not consider any of these explanations affords good reason for the very long delay.  According to the applicant, what prompted him to make this application more than five years after he had been sentenced is the assistance he recently received from a fellow prison inmate.  However, the applicant was legally represented during the committal stage and also at the hearing in the Court of First Instance.  In the normal course, his trial counsel would have advised him of his right of appeal and the relevant time limit.  At the very least, it was open to him to seek advice from his trial counsel on these matters or on any legal point related to his case. 

8.That said, however, we will nonetheless look at the grounds of appeal to see whether they are arguable.

The intended appeal

9.The facts admitted by the applicant and upon which he was convicted and sentenced are these: On 29 August 2004, Customs and Excise officers intercepted the applicant and the co-accused on a plane at the Hong Kong International Airport, which was scheduled to leave for Tokyo, Japan.  The two were sitting next to each other.  Upon a body search, four packets containing crystalline substance were found being wrapped in brown adhesive tape around the applicant’s body in the area below his chest. Subsequent examinations revealed the contents of the four packets to be 2,428.5 grammes of crystalline solid containing 2,399.28 grammes of methamphetamine hydrochloride.  The other accused was also found to have four packets wrapped around his body in similar manner.  Examinations revealed the four packets to contain 2,534.47 grammes of crystalline solid containing 2,502.26 grammes of methamphetamine hydrochloride. 

10.Upon being arrested and cautioned, both the applicant and the other accused admitted they knew the substance in the packets to be “Ice”.  During their video-recorded interviews, they both stated they had agreed with a man in Malaysia to take the dangerous drugs from Hong Kong to Japan.  After they arrived in Hong Kong from Malaysia, the two of them shared a hotel room and later booked a group tour to Japan.  On the evening before their arrest, someone delivered the dangerous drugs to their hotel room.  In the following morning, one man and one woman came and helped them to wrap the packets of dangerous drugs around their bodies. The applicant and the other accused were present in the room when the wrappings were being carried out. On arrival in Japan, they were to contact someone in Malaysia to make arrangement for the collection of the dangerous drugs. The two admitted they would each be paid a reward of about HK$40,000. 

11.The applicant was 38 years of age at the time of the offence.  He, as well as his co-accused, is a national and resident of Malaysia. He has no criminal record in Malaysia and Hong Kong.

12.In passing sentence, the trial judge noted that the applicant and the other accused had been charged with trafficking in the whole of the amount of dangerous drugs found on both of them and considered that this was undoubtedly on the basis of a joint enterprise.            

13.The trial judge was of the view that it was an aggravating feature that they were in the process of exporting the dangerous drugs from Hong Kong and intending to import them into Japan and that, while they were couriers, they did so for substantial reward. The trial judge adopted a starting point of 24 years and discounted it by one-third on account of the frank admissions and the guilty pleas.

14.In his Grounds of Appeal, the applicant raised three main grounds. The first ground is that it was erroneous in law to charge, convict and sentence him on the basis of a joint enterprise, such that he should only be liable for the amount of dangerous drugs found on his person and not for those found on the person of the co-accused.  The second ground is that the starting point is too high and the sentence of 16 years is manifestly excessive and wrong in principle.  The third ground is that the trial judge failed to have regard to the “foreignness” of the applicant.  

15.On the first ground, the substance of the applicant’s complaint is that the prosecution failed to prove beyond reasonable doubt a case of joint enterprise and that it was wrong to have regard to the admissions made by the accused, which was inadmissible evidence against him.  However, the case had not gone through a trial. As recorded by the trial judge, the applicant was convicted on his own guilty plea and also on his admission of the Summary of Facts that had been read out to him in court.  On the basis of the facts as admitted by the applicant, there is ample support for a case of joint enterprise between him and the co-accused. We see no merit in this ground.

16.As to the second ground, the applicant referred to a number of authorities and argued that in those cases, which bore similarities to his case, a lower starting point of 21 to 22 years imprisonment was adopted.  He also suggested that his role was a mere courier, which is the least serious form of the offence.

17.In AG v. Ching Kwok-hung [1991] 2 HKLR 125, it was held that for trafficking in a quantity of “Ice” of over 600 grammes, an appropriate sentence, after trial, should range from 18 years upwards, though the courts were to bear in mind the danger of mathematical progression causing injustice.  The quantity of “Ice” that the applicant was convicted of was in excess of 4,900 grammes, which is more than eight times of the quantity of 600 grammes. In our view, the starting point of 24 years’ imprisonment is clearly within the range of recognized range of sentence.

18.On the applicant’s point that the starting point of 24 years is out of line when compared with other cases, it is apt to note the principles stated by this court in HKSAR v. An unknown person alias Stojanovic Milka and Skopljak Sara, CACC110/2010, 3 November 2010, unreported, para.12:

“We have been presented with a plethora of decisions designed to show that in other cases of trafficking in drugs in greater or similar quantities, a lower starting point has been taken. It is true that in this category of offence, sentence is very largely based on quantity and whilst it is normally of limited avail in other categories of offence for applicants to point in respect of like offences to sentences by different courts, there is a particular need for consistency in a category of offence when individual mitigation tends, for policy reasons, to count for little, the point made by this Court in HKSAR v Leung Wai Man, CACC 24/2007, 7 December 2009, unreported, para. 11. But there is a limit to which this can be taken, for there is a danger of the exercise of comparison getting out of hand with a view to such fine tuning as to denude sentencing discretion of any meaning at all. Some differences between different courts are bound to occur if sentencing is not to be an entirely mathematical exercise.”

19.As to the cases referred to by the applicant, in which a starting point of 21 to 22 years was adopted, the quantity of “Ice” involved was in the range of 2,000 grammes.  We have already indicated we do not agree that the applicant should be convicted and sentenced only for the quantity of “Ice” found on his person.  These cases therefore do not serve to show that the trial judge’s starting point of 24 years is out of line with the range of sentences imposed for a similar quantity of drugs and for similar factual circumstances.

20.On the applicant’s argument that this is a less serious case because he was merely a courier, we are of the view that, on the facts, the applicant was a courier for international drug trade.  In fact, he came to Hong Kong for the sole purpose of committing the offence. We agree with the trial judge this is an aggravating feature.  The applicant’s second ground of appeal is unarguable.                 

21.We turn to the third ground of appeal, namely, the foreignness of the applicant.  As consistently stated by this Court, in serious offences like trafficking in dangerous drugs, the personal circumstances of the accused, including the inconvenience of a foreigner serving sentence in the local prison, will play little part in mitigation.  This ground is also unarguable.

Conclusion

22.Given the substantial delay, the lack of satisfactory explanations for the delay and also the lack of merits in the intended appeal, we see no basis to extend the time for the application for leave to appeal.  Accordingly, we dismiss the applicant’s application for leave to appeal against sentence out of time. 

Ms Agnes Chan, Assistant DPP (Ag) of Department of Justice, for the Respondent.

The Applicant, unrepresented, appeared in person.