Tam Wa Lun v. HKSAR

FAMC No. 56 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 56 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO.856 OF 2009)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.It is only in extremely rare and utterly exceptional circumstances that this Committee would grant leave to appeal to the Court of Final Appeal against sentence.  Such circumstances may be found to exist where, for example, it is reasonably arguable that a defendant has, by reason of a violation of a basic sentencing principle, been sentenced too severely to a material degree.  This applicant seeks leave to appeal to the Court of Final Appeal against his sentence, imposed by a magistrate and affirmed by the High Court, of a total of 26 months’ imprisonment made up of consecutive terms of 16 months for trafficking in dangerous drugs and 10 months for possession of dangerous drugs.

2.The dangerous drugs the subject-matter of the trafficking charge consisted of 0.17 gms of a mixture containing 0.09 gms of heroin hydrochloride.  On the afternoon of 12 August 2009, at a street corner in Shamshuipo, the applicant sold those drugs, wrapped in plastic, for $140 to an undercover police officer posing as a buyer.  At the time, the applicant had on him another five plastic packets of heroin hydrochloride. With a view to avoiding the detection of these five packets of heroin hydrochloride, the applicant swallowed them.  On the following afternoon, while he was being processed for remand at the Lai Chi Kok Reception Centre, the applicant was warned by a Correctional Services Department (“CSD”) officer that any prohibited items, including dangerous drugs, in his possession had to be surrendered.  At that point in time, the applicant said nothing about the five packets of heroin hydrochloride which he had swallowed.  Having been told that he would be put under supervision, he eventually told a CSD officer that evening about those dangerous drugs.  And they were discovered when he excreted them.  They consisted of a total of 0.85 gms of a mixture containing 0.49 gms of heroin hydrochloride.  And they are the dangerous drugs the subject-matter of the possession charge.

3.Brought before a magistrate, the applicant pleaded guilty to both charges.  For the trafficking charge the magistrate took a starting point of 2 years.  He described it as a “lower” starting point, meaning no doubt one at the lower end of the appropriate band. For the possession charge he took a starting point of 15 months, saying that he took that starting point even though he could have taken one of 18 months. It is by discounting each of the starting points which he took by a third for the guilty pleas that he arrived at the terms of 16 and 10 months which he made consecutive to arrive at a total of 26 months.  He said that he took totality into account.  It is properly to be inferred that this was a reference to his having taken starting points lower than the ones which he thought could otherwise have been taken.

4.In contending that the punishment which his client received violated principle or departed from accepted norms, counsel for the applicant took two points.  One of which he abandoned.  The point maintained has to do with the right to silence.  It is that the magistrate’s view that the applicant had deliberately taken dangerous drugs into prison involved holding it against him that he had not revealed, when being processed for remand, that he had dangerous drugs inside his body.  In our view, the point is untenable.  It was entirely up to the applicant whether he spoke up or remained silent.  He remained silent when he so chose, and he eventually spoke up when he so chose.  It is said on the applicant’s behalf that the “tariff” sentence for the possession offence would have been 12 months’ imprisonment after plea.  The sentence he received for this offence was 10 months’ imprisonment.

5.Counsel for the applicant has put forward everything that can be urged on behalf of his client, but there is no reasonable basis on which to grant leave to appeal against sentence is this case.  Leave to appeal is therefore refused.

Mr H Y Wong (instructed by Messrs Au Thong & Tsang and assigned by the Legal Aid Department) for the applicant

Mr Edmond Lee (of the Department of Justice) for the respondent