HKSAR v. Yip Nga Tik

CACC 57/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2012

(ON APPEAL FROM DCCC NO. 1101 OF 2011)

________________________________

BETWEEN

________________________________

Before: Hon Yeung VP and Barnes J in Court

Dates of Hearing: 6 September 2012

Date of Judgment: 6 September 2012

Date of Handing Down Reasons for Judgment: 17 September 2012

________________________________

REASONS FOR JUDGMENT

________________________________

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Facts

1.On 2 August 2011, police officers conducted an anti-dangerous drugs operation in Sheung Kwai Chung and intercepted the applicant (Yip Nga-tik) when he was walking towards a private car in a furtive manner.  The applicant was carrying a plastic bag in his right hand and inside the plastic bag, there were 52 smaller plastic bags containing 13.43 grammes of a solid containing 9.36 grammes of cocaine.

2.The applicant told the arresting officers that he purchased the cocaine from “Ah Fai” at Kwai Chung Plaza and went home to divide them into smaller bags of 0.27 gramme each.  The applicant further admitted that he intended to sell the small bags of cocaine at $400 each.

3.The applicant was taken to his home in Wo Yi Hop Road for a search and inside his bedroom, a metal box containing one plastic bag and one paper packet were found.  The plastic bag contained 8.13 grammes of a powder containing 6.29 grammes of ketamine and the paper packet contained 0.39 gramme of a powder containing 0.31 gramme of ketamine.  There were also an electronic scale, 120 empty packets and cash of $12,800 in his bedroom.

4.The estimated street values of the cocaine and the ketamine were $14,276 and $903 respectively.

5.On 2 February 2012, the applicant appeared before Deputy Judge A Tse (the judge) in the District Court and pleaded guilty to a charge of trafficking in 9.36 grammes of cocaine and possession of 6.6 grammes of ketamine.

6.The applicant was 26 years old with two convictions unrelated to drugs.  For the purpose of sentence, the judge treated him as someone with a clear record.

7.In mitigation, it was suggested that the applicant committed the trafficking offence because of financial pressure as he had to support his mother who was injured whilst working in a construction site.  It was further suggested that the applicant decided to sell drugs for quick money after incurring a debt of $180,000 in an unsuccessful business endeavour.

The Judge’s Approach

8.The judge took the view that apart from the co-operation with the police and the guilty pleas, there was no other mitigating factor.

9.The judge pointed out that the quantity of cocaine was close to 10 grammes and she adopted a starting point of 5 years for the trafficking charge.  For the possession of ketamine charge, the judge adopted a starting point of 9 months, but increased it by 3 months on account of a significant latent risk, pointing out that the applicant’s friends were drugs users and that there was every possibility for the ketamine to pass onto others.

10.The judge reduced the starting points by one-third on account of the guilty pleas and ordered 4 months of the sentence on the possession charge to run consecutively to the sentence on the trafficking charge, making a total sentence of 44 months’ imprisonment.

The Application

11.Represented by Mr Kelvin KW Lai, the applicant sought leave to appeal against sentence.

12.Mr Lai’s ground was that the judge was wrong to have adopted the 5-year starting point for the trafficking offence when the amount of cocaine involved was 9.36 grammes.

13.Mr Lai suggested that the judge had not paid sufficient regard to the applicant’s relative good record.  Mr Lai emphasized that the applicant’s co-operation with the police was more than a mere admission as he had voluntarily and frankly disclosed the location of the ketamine, leading to the 2^nd charge against him.

Discussion

14.Whilst the two offences were committed on the same day, they were different in nature and involved two different types of dangerous drugs.  The applicant stored the ketamine at home, but was on his way to sell the 52 packets of cocaine.  The judge was entitled to impose partially consecutive sentences.

15.Under The Queen v Lau Tak Ming and others [1990] 2 HKLR 370 guidelines which apply to trafficking in cocaine, the starting point for trafficking up to 10 grammes of narcotic is 2-5 years’ imprisonment.

16.We accepted the submissions of Mr Andrew Cheng, counsel for the respondent, that the applicant, despite his full co-operation with the police, was only entitled to one-third discount for his guilty plea. We wish to repeat the observation of this court in SJ v Lee Chun Ho Jeef [2009] 6 HKC 471 at p 477A-C:

“The Court of Appeal have repeatedly emphasized that the one-third discount ‘is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time’. The respondent’s co-operation with the police referred to by the judge was his admission of the offence to the police, both at the scene of the crime and at the police station. Such a ‘co-operation’ is just part and parcel of the respondent’s admission of his guilt, albeit at the first available opportunity. This mitigation factor should be subsumed within the one-third discount.”

17.The quantity of cocaine in the 1^st charge was 9.36 grammes, close to but not yet 10 grammes.  Further, for the purpose of sentence, the applicant was treated as a person with a clear record and there were no other significant aggravating factors.

18.Whilst Mr Andrew Cheng was right in pointing out that the applicant was not a mere courier or storekeeper of the dangerous drug and that he intended to peddle the 52 small packets on the street, the quantity of dangerous drug remains the single most important factor when it comes to sentence for a drug trafficking offence.

19.In our view, bearing in mind the applicant’s clear record, the adoption of a 5-year starting point for trafficking in 9.36 grammes of cocaine would lead to a genuine sense of grievance on the part of the applicant.

20.We were persuaded that there should be a slight reduction as a matter of principle and that a 4½-year starting point for the trafficking charge would be sufficient to reflect the applicant’s culpability.

21.We therefore granted leave to appeal against sentence.  Treating the application as the appeal proper, we allowed the appeal and reduced the sentence on the trafficking charge from 40 months to 36 months with 4 months of the 8-month sentence on the possession charge to run consecutively.

22.The total sentence on the applicant was reduced from 44 months to 40 months.

Mr Andrew Cheng, PP of the Department of Justice, for the Respondent

Mr Kelvin K W Lai instructed by Lim & Lok assigned by the Director of Legal Aid, for the Applicant