HKSAR v. Law Num Chun

CACC 360/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2013

(ON APPEAL FROM DCCC NO. 635 OF 2013)

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BETWEEN

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Hon Lunn VP (giving the Reasons for Judgment of the court):

1.The appellant appealed, with leave granted by Stock VP on 28 January 2014, against a sentence of 59 months’ imprisonment imposed on her on 30 September 2013 by Deputy District Court Judge W T So following her conviction, on her plea of guilty, on 26 September 2013, of a single charge of unlawfully trafficking in dangerous drugs in premises in Sheung Shui on 12 March 2013, namely 7.81 grammes of methamphetamine hydrochloride (“ice”), 13.58 grammes of heroin hydrochloride, 16 tablets containing 0.16 grammes of methamphetamine and 334 tablets containing 4.68 grammes of midazolam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we allowed the appeal and quashed the sentence of 59 months’ imprisonment imposed on the appellant. In its place, we imposed a sentence of 4 years and 4 months’ imprisonment. We said that we would give our reasons in due course. That, we do now.

The Facts

2.Having been stopped in San Fung Avenue, Sheung Shui on the morning of 12 March 2013 and having been unable to produce her identity card, the appellant was taken to her nearby home, to which entry was gained by the appellant’s use of keys in her possession.  A search of the appellant’s handbag revealed the presence of three mobile telephones, two notebooks and $10,920 in cash.  The dangerous drugs, the subject of the charge, were found in a safe next to a bed in the premises.  The ice was found contained in eight plastic bags, whereas the heroin hydrochloride was contained in 22 packets.  The 16 tablets containing methamphetamine were found contained in a single plastic bag, whereas 334 tablets of midazolam were found contained in five plastic bags.

3.On arrest and having been cautioned the appellant admitted that she was a drug addict, claiming that some of the dangerous drugs were for her own consumption whilst the remainder was for sale.  In two subsequent video recorded interviews, conducted after caution, the appellant claimed first that she had purchased the dangerous drugs a few days earlier for $23,000.  Then, she said the purchase was a month earlier.  Next, she claimed that all the dangerous drugs, except the heroin, were for her own consumption. However, subsequently she asserted that all the dangerous drugs were for her own consumption.  The appellant accepted that the estimated retail value of all the dangerous drugs was $32,523.

Newton hearing

4.The prosecution having refused to accept the assertion made on behalf of the appellant that all of the ice in crystalline form was for her own consumption, the judge conducted a Newton hearing in which the appellant gave evidence.  In the result, the judge rejected the appellant’s testimony and found that the appellant was trafficking unlawfully in all of the ice in crystalline form.[1]

Reasons for Sentence

5.In his reasons for sentence the judge noted that the appellant was a 39 year old unemployed divorcee with a 12-year-old son, who was in the custody of her ex-husband, and that she was a first offender.

The role of the appellant

6.Having noted that on arrest and under caution the appellant had said that she was a drug addict and intended that some of the dangerous drugs were for her own use, the judge said that she also conceded that “some were for selling for profit.” [2]  Of the latter activity, the judge went on to note: [3]

“ In two subsequent video-recorded interviews, she admitted inter alia that she used the safe to keep cash and dangerous drugs; all the drugs seized were bought in Mongkok a few days ago at HK$23,000; sometimes she would sell heroin to drug addicts outside Shek Wu Hui Jockey Club clinic; the handwritings found in the notebooks were hers which showed the date and telephone numbers, the Chinese characters “male” stands for midazolam and “female” for heroin; the empty re-sealable plastic bags and sheets were purchased for practicing packaging. She however later changed her version and claimed that all the drugs were for her own consumption.”

7.Having observed that unlawfully trafficking in more than one type of dangerous drugs was an aggravating factor in the commission of the offence, given that it enabled the trafficker to “cater for a wider market”, the judge stated that he adopted a “combined approach” in sentencing.[4]  He said that, given the quantity of midazolam, he disregarded it for the purposes of determining sentence.[5]

Starting point for sentence

8.Having adverted to the guidelines for sentencing for unlawful trafficking in ice and heroin articulated in the judgments of this Court in the Attorney General v Ching Kwok Hung [6]and R v Lau Tak Ming [7] respectively, the judge said that unlawful trafficking in up to 10 grammes of ice fell in the range of 3 to 7 years’ imprisonment, whereas unlawful trafficking in amounts of between 10 and 50 grammes of heroin fell in the range of 5 to 8 years’ imprisonment.  The judge said that the appropriate starting point for unlawful trafficking in 7.97 grammes of ice was 5 years and 6 months’ imprisonment, whereas for unlawfully trafficking in 13.58 grammes of heroin the appropriate starting point was 5 years and 3 months’ imprisonment.  He went on to note that if all 21.55 grammes had been ice the appropriate starting point would not exceed 8 years’ imprisonment.  In the result, the judge stipulated a starting point for sentence of 7 years and 6 months’ imprisonment.

Discount from the starting point

   (i) Self-consumption

9.Having stated that in the Newton hearing he had rejected the appellant’s claim that all of the crystalline form of the ice was for her own consumption, the judge said that he accepted that some of the dangerous drugs in tablet form were for her own consumption.[8]  Having adverted to the judgment of this Court in HKSAR v Chow Chun Sang [9] and having noted that it was suggested there that the range of discount to be afforded to a defendant in respect of whom a court determined that some of the dangerous drugs were for his own consumption, depending on the specific circumstances, would fall within the range of 10 to 25% from the starting point taken to sentence.  The judge noted that regard was to be had to: [10]

“ factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

10.In the result, the judge stipulated a discount of 10% from that taken as the starting point to reflect the element of self-consumption of some of the dangerous drugs, noting that reduced the sentence by 9 months’ imprisonment.

   (ii) the appellant’s plea of guilty

11.Noting that he had rejected the appellant’s evidence in the Newton hearing that all the ice in crystalline form was for her own consumption, the judge said that the appellant was not entitled to the “conventional one-third discount”.  However, he said that, having regard to the fact that the hearing took one hour only, he was prepared to reduce sentence by 22 months’ imprisonment, which he said was a discount of about 27%.[11]

Sentence

12.In the result, the judge sentenced the appellant to 59 months’ imprisonment.

Grounds of appeal against sentence

13.In the ground of appeal against sentence advanced on behalf of the appellant, Mr Christopher Grounds submitted that in sentencing the appellant the judge “adopted a simple mathematical approach” and had failed to take into account her “clear record” and the fact that she was a drug addict who had evinced an intention to eschew the abuse of dangerous drugs.

14.Next it was contended that the judge had failed to have regard to the fact that, if all the 21.55 grammes of dangerous drugs had been heroin, the appropriate starting point for sentence would be about 6 years’ imprisonment.  Then, it was submitted that, having determined that the fact that the appellant was trafficking in several different types of dangerous drugs was an aggravating factor in the commission of the offence, the judge failed to stipulate how and to what extent that was reflected in the sentence imposed on the appellant.

15.Further, it was submitted, that the judge had failed to take into account the factors identified in the judgments of this Court in Ching Kwok Hung [12] and Lau Tak Ming [13] as being relevant to the determination of the appropriate sentence within the suggested bands.  As a result, the starting point taken for sentence of 7 years and 6 months’ imprisonment was manifestly excessive.

16.It was submitted that the judge had erred in determining in the Newton hearing that none of the ice in its crystalline form was for the appellant’s own consumption, given that the prosecution conceded that the appellant was a drug addict and accepted that some, but not all of the dangerous drugs was for her own consumption.  It was suggested that in consequence the judge erred in affording the appellant a discount of only 10% to reflect self-consumption of some of the dangerous drugs.

A consideration of the submissions

   Starting Point

17.No issue is taken with the judge’s calculations of the appropriate starting point for sentence having regard to the respective amounts of heroin and ice, namely 5 years and 3 months’ imprisonment and 5 years and 6 months’ imprisonment.  The judge went on to calculate the appropriate sentence on the assumption that the total amount of the dangerous drugs, other than the tablets, namely 21.55 grammes was ice. On that basis, he said that the appropriate starting point for the sentence “should not exceed 8 years’ imprisonment”.[14] As Mr Grounds pointed out the judge did not calculate the appropriate starting point for sentence on the assumption that the total amount of 21.55 grammes was heroin.  No issues was taken with the calculation of Mr Grounds that in those circumstances the appropriate starting point to sentence would be about 6 years’ imprisonment.

18.With respect to the judge, his calculation that the starting point for sentence should not exceed eight years’ imprisonment, on the assumption that there were 21.55 grammes of the ice, was not helpful.  On an arithmetic basis on that assumption the starting point for sentence was about 7 years and 6 months’ imprisonment.  As it happens, that is the sentence that the judge stipulated as his starting point for the combined amounts of dangerous drugs.  So, the starting point he took was the equivalent to that on the worse of the two assumed bases, namely that all the dangerous drugs was ice, whereas in fact only about one third in quantity was ice and about two thirds heroin.

Unlawful trafficking in several types of dangerous drugs: aggravating factor

19.Although the judge was correct to determine that an unlawful trafficking in several different types of dangerous drugs was an aggravating circumstance in the commission of the offence, nowhere did he quantify the effect on sentence.  That aggravating factor is more serious when the types of drugs in which the defendant has unlawfully trafficked are drugs that are used in combination by abusers.  As the appellant testified in the Newton hearing she consumed ice together with the red methamphetamine tablets.  Further, the availability of both ice and heroin enabled her to reach a wider market.

Other factors relevant to sentence

20.As Stock VP said in granting leave to the appellant, in the judgment of the Court given by Silke VP in Lau Tak Man, a range of factors were identified to which a judge was entitled to have regard to determine the appropriate sentence to impose on a person convicted of unlawfully trafficking in heroin within the bands of sentence identified in that judgment:[15]

“ Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf.” [Italics added.]

21.As Mr Grounds acknowledged in his written submissions, in its consideration of the appropriate application of the guidelines articulated in Lau Tak Ming and Ching Kwok Hung this Court has placed emphasis on the importance of consistency in sentencing achieved by sentences being “largely based on the weight of the drug being trafficked”.[16] In HKSAR v Manalo the appellant pleaded guilty to unlawfully trafficking in 51.02 grammes of ice.  The judge stipulated a starting point for sentence of 9 years’ imprisonment and, having afforded the appellant a discount of one-third for her plea of guilty, imposed a sentence of 6 years’ imprisonment.  The appellant had been granted leave to appeal against sentence by Keith JA, who gave reasons for granting leave.[17]

22.Of the role of the appellant in that case, Leong JA said in his judgment dismissing the appeal:[18]

“ In the present case, the appellant admitted she worked for her boyfriend and was sent by him to collect the bags from a staircase in Mongkok to take them to Wanchai for delivery to a buyer. She saw the drug in the bags and she was told by her boyfriend it was dangerous drug. She was not an innocent courier for the man. She was his partner in the trade of trafficking in dangerous drug. I see no ground to interfere with the sentence.”

23.In his judgment, Stuart-Moore CJHC(Ag) said of the reasons given by Keith JA in granting leave to appeal:[19]

“ He stated that it appeared as if the trial judge had decided on a starting point of nine years’ imprisonment by a “mathematical and mechanical application of the tariff” by taking into account only the amount of ice involved. He went on to say that the Applicant was “simply a courier taking ice from one point of the chain of distribution to another” and that it was arguable that the starting point taken by the judge had not taken into account the degree of the Applicant’s involvement in the drugs trade.

If what was being implied by Keith JA was the suggestion that a “simple courier” is deserving of less than a tariff sentence under the guidelines, (whether these are in respect of ice in Attorney General v Ching Kwok-hung (1991) 2 HKLR 125, or heroin in R v Lau Tak-ming & Anor (1990) 2 HKLR 370), we feel bound to say we disagree with such a notion.

Keith JA continued in his judgment by summarising the effect of a passage taken from Lau Tak-ming (above), and said:

“ The degree of an offender’s involvement in the drugs trade was a factor which the Court of Appeal in Lau Tak-ming said should be taken into account in deciding where within a suggested band a sentence should be.”

Keith JA went on to say that by a similar line of reasoning it was arguable that the degree of a person’s involvement in the heroin trade “and other factors enumerated in Lau Tak-ming” should apply to the tariffs for trafficking in other forms of hard drugs.”

24.Stuart-Moore CJHC(Ag) drew attention to the fact that immediately following the passage quoted earlier from Lau Tak Ming, Silke VP had gone on to say:

“ It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability – though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.

This court must guard against … the tailoring by the dealer of the quantities he sends out into the street and procures for his sellers to sell, his couriers to carry or his storekeepers to keep so as to reduce, for them, the length of the inevitable custodial sentence which will be passed on conviction – playing the ‘Bands’ in other words.”  [Emphasis added by Stuart-Moore CJHC(Ag)]

25.Of those observations, Stuart-Moore CJHC(Ag) said:[20]

“ It is quite apparent from this passage in Lau Tak-ming that the court had no intention of treating couriers or storekeepers of heroin as if they were deserving of more lenient treatment than the guideline tariffs generally suggest. The same would obviously apply to couriers and storekeepers of ice. Not even youth, old age or disability will carry much weight and more often than not it carries none.

The policy of this court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases earlier mentioned so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffick in dangerous drugs. It is important for the courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.

Whilst those who play an aggravated role in the drugs trade, such as the manufacturers, the wholesalers and the “bosses” who send the couriers out onto the streets to traffick can all expect longer sentences than the couriers and storekeepers, the couriers and storekeepers themselves cannot expect to receive less than the tariff sentence.”  [Emphasis added.]

26.It is to be noted that in his judgment Stock JA, as he was then, said only that he agreed with the judgment of Stuart-Moore CJHC(Ag) and that of Leong JA, in consequence of which the appeal against sentence was dismissed.

27.In HKSAR v Chan Yuk Fung[21] the applicant had been sentenced to 5 years and 4 months’ imprisonment, having been convicted on her plea of Guilty of unlawfully trafficking in 26.73 grammes of ice.  She was 21 years of age and had no criminal convictions.  Of the fact that the applicant pointed to other cases at first instance in which, on the one hand, a defendant who had previous criminal convictions and had trafficked unlawfully in over 46 grammes of ice but had received the same sentence as the applicant and, on the other hand, that a defendant in another case had been sentenced to 4 years’ imprisonment having been convicted of unlawfully trafficking in the same amount of dangerous drug as the applicant, Tang JA, as he was then, said:[22]

“  The reason for guidelines is that as much as possible “like cases should be treated alike”.  But as the range of sentence in the guideline indicates, the sentencing judge is given a discretion in the matter.  Here the range of sentence for 10 to 70 grammes of ice is 7 to 10 years.  This court is not entitled to interfere unless the sentence is manifestly excessive.  It is not sufficient to point to other cases where the defendants might have been given higher or lower sentences.  The starting point of 8 years in this case, falls within the range of 7 to 10 years and cannot be described as manifestly excessive.”

The role of a courier

28.In HKSAR v Leung Kwai Ping (No 2) this Court addressed the issue of the approach to be taken in sentencing a defendant whose role was that of courier only.  In the judgment of the Court, Stock JA said:[23]

“ When Lau Tak Ming set its tariff it did not do so in a loose way which presupposed that quantity was but one of several equal factors together with role and previous history. What was envisaged was that the appropriate sentence would in the first instance be approached according to weight. Once that level was, within the bands, determined according to weight, then there would, where appropriate, be an adjustment for aggravating features on the one hand and mitigating features on the other.

There is no basis for assuming that the fact of being a courier should be considered a mitigating feature.  It never has been a mitigating feature. In 1993, in R v Leung Kim Wah Crim App No. 442 of 1992, this court, then comprising Macdougall JA, Litton JA and Bokhary JA, as each then was, endorsed the sentencing judge’s contention that being a courier was not a mitigating factor and said, in terms, that “couriers cannot expect to receive a reduction in sentence simply because they are couriers.”

The courier is the category of trafficker who comes before the court probably more frequently than any other, and is an essential part of the whole nefarious and devastatingly harmful business that is illicit drug trafficking; and there is no basis upon which to assume that, when the court in Lau Tak Ming set its bands and its tariffs, it intended anything other than that the courier would face a sentence based upon the weight of the drugs he or she was carrying, subject of course to such mitigating, or aggravating, factors that prevailed in a particular case.  Others, taking a more major role, such as the wholesaler, or the importer or, of course, the manufacturer, would expect an aggravation of sentence; if necessary beyond the limit of a particular band where weight alone would carry sentence to the top end of the band.  That is how role is distinguished, and a fear that there is no room to reflect role is not, therefore, a well founded fear.”  [Italics added.]

The appellant’s good character

29.This court has said on many occasions that in offences of gravity, which call for a deterrent sentence, the fact that the defendant is of good character, in the sense that he has no criminal record, is not a factor for which a discount in sentence is generally appropriate.  In the judgment of the Court in HKSAR v Bugaay, in the context of the factors relevant to sentencing for unlawfully trafficking in 1.9 kg of cocaine by way of importation into Hong Kong Stuart Moore VP said of the fact that the applicant had no criminal record:[24]

“ …as this court has so often said with reference to cases where serious criminal acts are concerned, a clear record (or good character) in itself is not a factor for which a discount is generally appropriate....”

30.As Mr Grounds pointed out in oral argument in Buggay this Court was concerned with a discount afforded to the applicant, inter alia, for good character from the stipulated starting point for sentence, not with the relevance of good character to determining the appropriate starting point.[25]  Nevertheless, the principle is that good character is not a factor relevant generally to determining the starting point to be taken for sentence in serious criminal offences for which a deterrent sentence is required.

31.Conversely, the fact that a defendant has previous convictions for offences involving dangerous drugs may be considered an aggravating factor in the commission of a subsequent offence of unlawfully trafficking, which calls for a higher starting point than that which would be appropriate for a person without such a criminal record.

The Newton hearing

32.Mr Grounds was correct to point out that the judge’s determination, that none of the ice in crystalline form was intended for self-consumption by the appellant, was contrary to the prosecution case as suggested in cross-examination of the appellant and in submissions.  In submissions prior to the appellant’s evidence, Mr McNamara took issue with the assertion that all of the ice was for self-consumption:[26]

“ ...obviously some of these drugs were for her own consumption. I don’t know how much and I don’t suppose anyone ever will but I can’t accept, as a matter of common sense, that all of that Ice was for her own consumption... the way it was packed and all of that... for her own consumption.”

In cross-examination, Mr McNamara suggested to the appellant, who disagreed:[27]

“ ...in fact although you might, may or not have been taking some Ice, the vast bulk of it you had was for selling?”

33.In such circumstances of uncertainty, whilst the judge was not bound by the prosecution approach to the issue, nevertheless the prosecution’s approach resonated with common sense.  No challenge was made to the contention made in mitigation that the appellant was a drug addict and had been for 10 years.  In her evidence, the appellant had described how she consumed ice together with a methamphetamine tablet.  She said that she had been consuming ice for about three years.[28]  Notwithstanding his rejection of the appellant’s evidence, and his determination that all of the ice in crystalline form was for unlawful trafficking, the judge went on to say:[29]

“ given the concession that maybe some of the drugs were for self consumption, I am prepared to give some discount.”

34.In sentencing the appellant, the judge described the effect of the concession:[30]

“ There remains ice in tablet form, i.e. 0.16 gramme and heroin. In sentencing, I am prepared to accept that some of those drugs were for self-consumption.”

35.The judge did not explain at all how it was that he accepted that the appellant abused methamphetamine tablets, but not the crystalline ice.  Counsel had mitigated on the basis that the appellant abused all four of the types of dangerous drugs found in her home, on occasion mixing some of them together.[31]

36.Having regard to the appellant’s evidence, the judge’s rejection of the appellant as an evasive and untruthful witness in respect of the source of the dangerous drugs was entirely justified.[32]  Similarly, as he did, he was entitled to reject her evidence as to her ability to finance the purchase of the dangerous drugs, other than from drug trafficking.[33]  Furthermore, the judge was entitled to reject the appellant’s evidence that all of the ice in crystalline form was for self-consumption.  On the other hand, we are satisfied that the judge fell into error in determining that none of the ice in crystalline form was intended to be consumed by the appellant herself.  The judge ought to have accepted the prosecution’s sensible concession that some part of the ice in crystalline form was for self-consumption, albeit that the “vast bulk of it was for selling”.

Discount for plea of guilty

37.Given that the judge was entitled to reject the main thrust of the appellant’s evidence, that all of the ice in crystalline form was for self-consumption, and, notwithstanding our determination that the judge erred in not accepting that some small part of that ice was for self-consumption, we are satisfied that the judge was entitled to afford a discount of sentence less than one-third from that taken as a starting point.

The role of the appellant 

38.It is clear that the “degree of involvement” of the appellant in unlawful trafficking in the several types of dangerous drugs was significant.  On the one hand, as she admitted, she purchased dangerous drugs in larger quantities and on the other hand she sold in smaller quantities.  She was a retailer.  It appears that she maintained records of transactions in her notebooks.  She admitted that she had paid $23,000 for the dangerous drugs the subject of the charge.  The 7.81 grammes of ice were packaged in eight plastic bags, whereas the 13.58 grammes of heroin hydrochloride were contained in 22 packets.  She had taken steps to protect the security of her operation, storing the dangerous drugs in a safe of which only she knew the combination.  She had 212 empty re-sealable plastic bags.  $10,920 had been found in her handbag.  She was not a vulnerable person of whom advantage was taken to cajole her to act as a casual courier.

Mitigating factors

39.Although the appellant, a mature woman, had no criminal convictions, that mitigating factor was of little weight having regard to the seriousness of the offence.

Starting point

40.We are satisfied that the judge fell into error in stipulating a starting point for sentence of 7 years 6 months’ imprisonment.  As noted earlier, on the assumption that all of the dangerous drugs were either ice or heroin, the range of sentence lay between 7 years and 6 months’ and 6 years’ imprisonment.  Having regard to the fact that one-third of the dangerous drugs was ice and two thirds heroin, in our judgment the appropriate starting point for the sentence is 7 years’ imprisonment, 3 months of which reflects the factor of aggravation in the commission of the offence of the presence of multiple dangerous drugs.

Discount

   (i) self-consumption

41.We are satisfied that the appellant was entitled to a discount of about 15% to reflect the fact that some part of the dangerous drugs, including ice in crystalline form was for self-consumption.  We interfere with the percentage of discount afforded by the judge on that basis only.  Accordingly, the starting point for sentence is reduced on that basis to 5 years and 11 months’ imprisonment.

   (ii) mitigating factors

42.For her plea of guilty, albeit that her contention that all of the ice in crystalline form was for self-consumption was properly rejected by the judge in the Newton hearing, the judge was correct to afford the appellant a reduced discount of sentence from the one-third discount normally afforded.  We are satisfied that the appellant was entitled to a discount of 19 months’ imprisonment from that taken as the starting point, so that the appropriate sentence to be imposed on the appellant is 4 years and 4 months’ imprisonment.

Conclusion

43.For those reasons we were satisfied that the sentence of 59 months’ imprisonment imposed on the appellant was manifestly excessive.  Accordingly, we quashed that sentence and in its place, we imposed a sentence of 4 years and 4 months’ imprisonment.

Ms Vivien Chan, SPP, of the Department of Justice, for the respondent

Mr Christopher Grounds, instructed by Lo, Chan & Leung, assigned by Director of Legal Aid, for the appellant  

[1] Appeal Bundle; page 32 K.

[2] Appeal Bundle; page 10 B-C, paragraph 5.

[3] Appeal Bundle; page 10 E-J, paragraph 6.

[4] Appeal Bundle; page 11, paragraphs 13 and 14.

[5] Appeal Bundle; page 11 R, paragraph 14.

[6] Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125.

[7] R v Lau Tak Ming [1990] 2 HKLR 370.

[8] Appeal Bundle; page 12, paragraphs 16-17.

[9] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

[10] Appeal Bundle; page 13, paragraph 18.

[11] Appeal Bundle; page 8 Q, paragraph 20.

[12] Attorney General v Ching Kwok Hung, page 130 H-I.

[13] R v Lau Tak Ming, page 386 E-H.

[14] Appeal Bundle; page 12, paragraph 8.

[15] R v Lau Tak Ming, page 386 E-G.

[16] HKSAR v Manalo [2001] HKLRD 557, at page 560 F-G.

[17] HKSAR v Manalo (CACC 94/2000; unreported, 6 September 2000).

“  It looks as if the judge decided on a starting point of 9 years’ imprisonment by taking into account only the amount of ice involved, and that he selected his starting point by a mathematical and mechanical application of the tariff.  In my opinion, it is arguable that in deciding on his starting point the judge did not take into account the degree of the Applicant’s involvement in the drugs trade.  On her version of events (which the prosecution was not in a position to challenge), she was simply a courier taking the ice from one point of the chain of distribution to another.  The degree of an offender’s involvement in the drugs trade was a factor which the Court of Appeal in Lau Tak Ming said should be taken into account in deciding where within a suggested band a sentence should be.”

[18] HKSAR v Manalo, page 558 J - 559 B.

[19] HKSAR v Manalo, page 159 B-H.

[20] HKSAR v Manalo, page 560 D-J.

[21] HKSAR v Chan Yuk Fung (CACC 195/2005; unreported, 19 April 2006).

[22] HKSAR v Chan Yuk Fung, paragraph 5.

[23] HKSAR v Leung Kwai Ping (No 2) [2003] 2 HKC 575; at page 580 G - 581 D, paragraphs 10-12.

[24] HKSAR v Bugaay [2008] 6 HKC 326; page 331 D-E, paragraph 17.

[25] HKSAR v Bugaay; pages 329 I - 330 C, paragraph 11 and page 331 B-F, paragraphs 16-17.

[26] Appeal Bundle; page 22 T - 23 B.

[27] Appeal Bundle; page 28 F-G.

[28] Appeal Bundle; page 24 A-B.

[29] Appeal Bundle; page 32 P-Q.

[30] Appeal Bundle; page 12 N-P, paragraph 17.

[31] Appeal Bundle; H 20 U - 21 D.

[32] Appeal Bundle; page 31S.

[33] Appeal Bundle; page 32 G-H.