HKSAR v. Ho Ka Fu

CACC 398/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2013

(ON APPEAL FROM HCCC NO. 2 OF 2013)

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BETWEEN

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

1.The applicant pleaded guilty to one count of trafficking unlawfully in a dangerous drug on 13 June 2012, namely 0.33 kilogramme of cocaine. On 15 October 2013, he was sentenced by Deputy High Court Judge McMahon to 7 years and 9 months’ imprisonment. Now, he applies for leave to appeal against that sentence.

The Facts

2.On 13 June 2012, Police officers stopped the applicant in the street and, having taken him to his flat, searched the flat.  Underneath a television set they found a pink coloured box containing the dangerous drugs in question.  Next to that box, was a plastic box containing gloves, re-sealable plastic bags and one electronic scale.

Reasons for Sentence

3.The applicant is aged 53.  He had previous convictions, two of which were for the offence of possessing dangerous drug for the purpose of unlawful trafficking.

4.Noting the fact that those convictions were almost 20 years old, the judge said that he ignored them as an aggravating factor.  He acknowledged that the quantity of the drugs was the most significant factor in sentencing in a drug trafficking case.  Having stipulated a starting point of 13 years’ imprisonment, the judge stated that he imposed that sentence having regard to the applicant’s “early admissions and his plea of guilty”.

5.The sentence imposed on the applicant represents a discount of 40.38% from that taken as the starting point for sentence.  It follows, that in imposing sentence, in addition to the normal one-third reduction of sentence for the applicant’s early plea of guilty, the judge afforded the applicant an extra discount of 11 months’ imprisonment.

Grounds of Appeal against Sentence

6.In his grounds of appeal against sentence, the applicant’s complaints are that:

(a) he had given assistance to the Customs & Excise        Department; 

(b) compared to sentences imposed in other cases which he cited to this Court, the extra reduction of 11 months is below what should be accorded to him for his assistance;

(c) his family circumstances were not given sufficient weight by the judge.  That is a matter that he has reiterated in his oral submissions today; and

(d) the judge did not give reasons to explain his sentence.

A CONSIDERATION OF THE SUBMISSIONS

7.As the judge observed correctly, sentences imposed in respect of dangerous drugs are determined mostly by the quantity of the narcotic substances involved.  Personal or family circumstances pale into insignificance.  There is no dispute that the assistance afforded to the authorities by the applicant was fruitful, in that it led to the seizure of a substantial quantity of dangerous drugs, the arrest and charging of a person.  The 13-year starting point is entirely appropriate.

8.It is clear from the papers that the extra discount of 11 months’ imprisonment reflected the assistance provided by the applicant to the authorities.  On numerous occasions this Court has indicated that a discount of about 40% from that taken as the starting point for sentence (including the one-third discount for a guilty plea) is the appropriate discount for a defendant who has provided information to the authorities, but who has not testified for the prosecution in any resulting trial.  That practice was noted in the judgment of the Court of Final Appeal inZ v HKSAR . [1]

9.The cases that the applicant cited to this Court are all decisions of the Court of First Instance in which sentences were imposed by the same judge, Deputy Judge P. Li, as he was then: HCCC 30 of 2012; HCCC 51 of 2012; HCCC 118 of 2102 [2]. In the first two cases, after having been arrested, the defendants took part in what is known as a ‘controlled delivery’, but to no avail.  Nevertheless, they were each given an extra 1-year discount in sentence from the respective starting points taken for sentence, namely 11 years and 2 months’ and 11 years and 3 months‘ imprisonment.  Although the operations in which the respective defendants participated were unsuccessful, nevertheless each of the defendants exposed himself to an element of risk, for which he was entitled to an additional discount in respect of sentence above that afforded to each of them for their pleas of guilty.  In the third case, where the information turned out to be of no practical assistance, the defendant was so given an extra discount of 6 months.  On that bare information, with respect to the judge the additional discount was not justified. [3] The cases are of no help to the applicant.

Conclusion

10.There is no merit in the application, which is dismissed.

Miss Audrey Parwani, PP, of the Department of Justice, for the respondent

The applicant appeared in person

[1]Z v HKSAR (2007) 10 HKCFAR 183, at 194 D-H.

[2] HKSAR v Chan Chi Fai(HCCC 30/2012; unreported, 29 March 2012); HKSAR v Wong Hon Man, Leo (HCCC 51/2012; unreported, 2 May 2012); HKSAR v Yeung Chun Hung (HCCC 118/2012; 1 March 2013).  There is a fourth case, but that cannot be traced because of insufficient details.

[3] In the judgment of this Court in HKSAR v Bin Kei Chi & Another (CACC 181/2005; unreported, 23 September 2005) the then Stuart-Moore VP said:

“  ..co-operation after arrest, where meaningful assistance provided has led to a tangible result, is rewarded by the courts but either an unfulfilled promise or an attempt to assist which is of no significant practical value at the sentencing stage does not carry with it the prospect of a reduced sentence.”