HKSAR v. Chan Wai-kit

CACC 173/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 2013

(ON APPEAL FROM HCCC 34 OF 2012)

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BETWEEN

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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 seeks leave to appeal out of time against sentences of imprisonment imposed on him on 22 August 2012 by M. Poon J following his conviction on his plea of guilty to two counts of unlawfully trafficking in dangerous drugs on 9 November 2011, namely 6.01 grammes of ketamine (Count 1) and 463.15 grammes of ketamine (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The facts

2.At about 18:30 on 9 November 2011 the applicant was intercepted after he had emerged from Kwun Tong Mansion, 36 Yuet Wah Street, Kwun Tong and after he had walked to the buildings car park.  He was stopped and searched by officers from the Narcotics Bureau and an envelope containing a white plastic bag, which itself contained a re-sealable plastic bag containing a powder, was found in his trouser pocket.  The powder was the subject of Count 1.  After having been cautioned the applicant claimed that the ketamine was for his own consumption.

3.Having been taken by police officers to his domestic premises at Room 33, 10/F, Kwun Tong Mansion, 36 Yuet Wah Street, Kwun Tong the applicant was present when his premises were searched and 4 bags of ketamine the subject of Count 2 found in a moon cake tin in a drawer in the premises.  The ketamine was found to be concealed in a total of 20 re-sealable plastic bags.  Other re-sealable plastic bags and an electronic scale were found on the premises.  In a video recorded record of interview the applicant asserted that he had been asked to store the bags for a dealer who would retrieve them in due course.

Reasons for sentence

4.In her reasons for sentence the judge noted that the retail value of the ketamine was in the region of $115,000.  She noted that the applicant was 23 years of age, employed as a decoration worker and had only one previous criminal conviction, namely for possession of dangerous drugs in March 2007 for which he had been put on probation.

5.Having adverted to the guidelines for sentencing in cases of unlawfully trafficking in ketamine, articulated in the judgment of this Court in the Secretary for Justice v Hii Siew Cheng [1], the judge said that the total amount of the dangerous drugs in which the applicant had trafficked, namely 469.16 grammes of ketamine fell in the band of 300 to 600 grammes, for which the starting point to be taken for sentence after trial was in the range of 9 to 12 years’ imprisonment.

Starting point

6.The judge stipulated that she took a ‘global starting point’ for sentence of 10½ years’ imprisonment.

Discount

7.Then the judge said that she afforded the applicant a discount of one third from the starting point taken for sentence for his timely plea of guilty.

Sentence

8.The judge sentenced the applicant to one and a half years’ imprisonment for Count 1 and 7 years’ imprisonment for Count 2, ordering the two sentences to be served concurrently.

Grounds of appeal against sentence

9.The sole ground of appeal against sentence is that, as a result of matters occurring subsequent to sentencing, the applicant is entitled to a reduction of the sentence imposed by the judge.

10.The respondent does not oppose that application.

11.It is apparent to us from the papers that the applicant is entitled to a further discount from that afforded to him by the judge. 

Conclusion

12.Accordingly, the application for leave to appeal against sentence out of time is allowed and, treating the hearing of the application as the hearing of the appeal, we quash the sentence of 7 years’ imprisonment imposed by the judge on Count 2 and in its place impose a sentence of 5 years and 9 months’ imprisonment.  Similarly, we quash the sentence of one and a half years’ imprisonment imposed in respect of Count 1 and in that case impose a sentence of 15 months’ imprisonment.  We do not disturb any of the other orders.  Accordingly, the total sentence of imprisonment that the applicant is now subject to is 5 years and 9 months.

Ms Jasmine Ching, SPP, of the Department of Justice, for the respondent

Ms D. Crebbin, instructed by Ip, Kwan & Co, assigned by Director of Legal Aid, for the applicant

[1] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.