HKSAR v. Lo Kwong Yin

CACC 223/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2008

(ON APPEAL FROM HCCC 14 OF 2008)

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BETWEEN

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Before : Hon Lunn JA and Hon McWalters J in Court

Date of Hearing : 5 October 2012

Date of Judgment : 5 October 2012

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicant, who appears in person, seeks leave to appeal against sentence out of time. On 5 June 2008, following a trial before Deputy High Court Judge Geiser and a jury the applicant, together with his co-accused at trial, was found guilty of three counts on the indictment: unlawfully manufacturing a dangerous drug, namely cocaine (count 1); and two charges of unlawfully trafficking in a dangerous drug, namely 32.95 grammes and 11.01 grammes of cocaine respectively (counts 2 and 3). It was alleged that the offences occurred on the same date, namely 8 June 2007. The first two offences were alleged to have been committed inside a room inside the San Diego Hotel in Woosung Street in Yaumatei, whereas the third offence was alleged to have been committed in the street outside the hotel. The applicant was sentenced to 12 years’, 6½ years’ and 5½ years’ imprisonment respectively in respect of counts 1, 2 and 3. The sentences were ordered to be served concurrently. Accordingly, the total sentence imposed on the applicant was 12 years’ imprisonment.

2.A notice of application for leave to appeal against conviction, Form XI, was filed with the court on 26 June 2008.  Although the applicant’s application for leave to appeal against his conviction of the unlawful manufacturing count (count 1) was allowed by this Court, differently constituted, his appeal against conviction was dismissed on 3 September 2009.  On 14 May 2010, the Appellate Committee of the Court of Final Appeal refused the applicant leave to appeal against that conviction.  On 15 March 2012, the applicant filed a notice of application for leave to appeal against sentence.

3.In a letter to the court dated 19 September 2012, inter alia, the applicant explained the circumstances of delay in his filing of a notice of application for leave to appeal against sentence, albeit that he pursued an application for leave to appeal against conviction to the Court of Final Appeal:

“ During the appeal, on the advice of my lawyer, I only filed an appeal against a conviction but not sentence to the Court of Appeal. After the appeal proceedings had concluded, my family and I did not have enough money to engage a lawyer. I later learnt that the sentences of two other similar cases were very much different from that in my case. So again, I applied to have my sentence reduced…”

4.In considering whether or not to grant leave to appeal out of time this court has regard to the length of the delay, the reasons advanced for that delay and the merits of the proposed grounds of appeal, so as to ensure that by refusing leave to appeal the court is not shutting out a substantial and plainly arguable grounds of appeal (see R v Wong Kai Kong [1990] 1 HKC 279; HKSAR v Leung Yiu Ming & Anr [2000] 1 HK LRD 247; cited with approval in HKSAR v Medina; CACC 296/2007; unreported 31 January 2012).

5.As was noted by Silke VP in Wong Kai Kong (page 281 C-D), the longer the delay the more onerous is the duty on the applicant to advance a cogent explanation for delay.  None is advanced by the applicant.  Clearly, whilst the applicant was represented in advancing his application for leave to appeal against conviction in both this court and the Appellate Committee of the Court of Final Appeal a considered decision was taken not to seek to challenge the sentences of imprisonment imposed on the applicant.  More than four years elapsed between the date of the applicant’s conviction and sentence and the applicant’s notice of application for leave to appeal against sentence.

6.In his proposed grounds of appeal against sentence the applicant submitted that whilst he had been convicted of manufacturing a dangerous drug what he had done was merely to change the form of cocaine into a more suitable form for consumption, namely ‘crack’ cocaine.  He had done that by mixing the cocaine with bicarbonate of soda and water and heating up the resulting mixture.  That is a commonly used method of making ‘crack’ cocaine.  As the judge directed the jury at his trial, “manufacture” is defined in section 2(1) of the Dangerous Drugs Ordinance, Cap. 134 as meaning “any act connected with making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug.”  Clearly, the applicant was manufacturing ‘crack’ cocaine.

7.There is no dispute that the offence of manufacturing dangerous drugs is more serious than that of unlawfully trafficking in dangerous drugs (see the judgments of this court R v Wong Chun King [1984] HKLR 247 at page 257; R v Cheung Wai Kwong [1997] 3 HKC 496 at page 501 A-B; and HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 at 586).  As Roberts CJ noted in Wong Chun King, the most serious feature of the commission of the offence is the fact of manufacture, rather than the quantity of drugs seized by the authorities.  Roberts CJ went on to state that it would only be in exceptional cases that a sentence of less than 10 years’ imprisonment on conviction for manufacturing dangerous drugs would be appropriate.

8.In the case of the applicant, the judge accepted that the circumstances of the commission of the offence did not point to a particularly large scale or sophisticated operation. Nevertheless, he noted that the total amount of cocaine seized was 43.96 grammes, which had a street value of $49,899.  Also, he noted that the applicant had been found in possession of over $51,000, which he determined to be the proceeds of his drug trade.

9.The reliance by the applicant on the judgment of this court in HKSAR v Chan Sung Wing [2008] 1 HKLRD 126 is misplaced.  There, this court was critical of the bringing of a manufacturing charge against an applicant whom the court found to be in possession of dangerous drugs for his own consumption only, so that his “manufacturing” involved only a conversion of a tiny quantity of cocaine into crack cocaine for his own use.  As noted earlier, the circumstances of the commission of the offences by the applicant was entirely different.

10.In those circumstances, there is no arguable ground of appeal that the sentence of 12 years’ imprisonment imposed on the applicant in respect of count 1 was manifestly excessive.  The same is obviously the case in respect of the sentences of 6½ years’ and 5½ years’ imprisonment, in respect of the two separate charges of unlawfully trafficking, in a dangerous drug.

Conclusion

11.Accordingly, the application for leave to appeal against sentence out of time is refused.

Miss Noelle Aileen Chit, PP, of the Department of Justice, for the respondent

The applicant appeared in person