Yuen Tsz Hei v. HKSAR

[English Translation – 英譯本]
CACC199/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 199OF 2014

(ON APPEAL FROM DCCC NO 329 OF 2014)

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J U D G M E N T

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1.The applicant pleaded guilty before District Judge Sham to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drug involved was 8.50 grammes of a mixture containing 6.82 grammes of heroin hydrochloride. On 29 May 2014, Judge Sham sentenced the applicant to 38 months’ imprisonment. The applicant now applies for leave to appeal to the Court of Appeal against the sentence.

Facts

2.The facts, admitted by the applicant, are as follows.  At about 5:27 pm on 9 January 2014, the police were carrying out an anti-narcotic operation in the vicinity of Soy Street, Kowloon.  During the operation, a car appeared and pulled over at a traffic light junction in Soy Street.  The applicant approached the car.  He spat out a pellet of drug, handed it to the driver who was inside the car, and received some money from him.  A police officer intercepted the driver and found a pellet of drug in red wrapping from his jacket upon search.

3.Meanwhile, another police officer intercepted the applicant and, upon search, found from his pant pocket 15 pellets of drug in red wrappings and 5 pellets of drug in white wrappings. The applicant admitted under caution that he sold No. 4 heroin on behalf of someone for a reward of $700.

4.On 11 January 2014, while in the custody of the Correctional Services Department, the applicant twice discharged drugs: he discharged 6 pellets of drug in red wrappings and 9 pellets of drug in white wrappings on the first occasion and one pellet of drug in red wrapping and 4 pellets of drug in white wrappings on the second.  He said under caution that he had swallowed those pellets accidentally upon his arrest on 9 January.

5.The above pellets contained a total of 6.82 grammes of heroin hydrochloride.

The sentence at first instance

6.The applicant is 34 years old.  He has 22 previous criminal convictions. Eight of them are related to drugs or Part I poison, 3 of which are convictions for trafficking in a dangerous drug.  His last conviction prior to the present one is dated December 2009 and is for possession of a dangerous drug, for which and he was sentenced to a drug addiction treatment centre.

7.By way of mitigation, counsel for the applicant submitted that the applicant started taking drugs since the age of 20 and that he fully cooperated with the police after his arrest.  Counsel also stated that the applicant’s three previous convictions for trafficking in a dangerous drug dated back to 1999, 2000 and 2003 respectively and that prior to the present offence he had not been committing any drug trafficking offence for 11 years.  Counsel therefore requested Judge Sham not to enhance the sentence on the basis that the applicant was a persistent offender.

8.Judge Sham adopted 4 years’ imprisonment as a starting point.  Since it was the fourth time the applicant committed the offence of trafficking in a dangerous drug, Judge Sham considered him a persistent offender and found it necessary to enhance the sentence in order to strengthen deterrence.  He therefore enhanced the starting point  to 4 years and 9 months.  Giving the one-third discount for the applicant’s guilty plea, Judge Sham sentenced him to 38 months’ imprisonment.

Grounds of appeal

9.In the Notice of Application for Leave to Appeal, the applicant did not put forward any grounds of appeal.

10.At the hearing, he made written submissions to the effect that, given the quantity of the drug involved in the present case, the starting point of 4 years and enhancement of 9 months adopted by Judge Sham were manifestly excessive.  The applicant referred to a District Court case (HKSAR v Yu Kwok Ming, DCCC 322/2012) and stated that, despite the larger quantity of heroin involved and the extensive drug trafficking conviction records of the defendant in that case, the judge adopted a starting point of 3 years and 9 months and did not enhance the sentence.  In comparison, the applicant submitted that his sentence was manifestly excessive and unfair.

Reasons for judgment

11.In R v Lau Tak Ming & Others [1990] 2 HKLR 370, the Court of Appeal laid down sentencing guidelines for trafficking in heroin.  For a quantity of 10 grammes or below, the starting point is 2 to 5 years’ imprisonment.  The present case involves 6.82 grammes of heroin.  The starting point of 4 years adopted by Judge Shum is in line with the guidelines set out in Lau Tak Ming and is not manifestly excessive.

12.In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833B-834C, the Court of Appeal held that repeated commission of the same type of offence by a defendant is an indication that the previous sentences imposed on him are not serving any deterrent effect and therefore, to reflect the gravity of the matter and protect the general public, the court will impose a deterrent sentence.

13.In the present case, the applicant has a number of drug-related convictions, including convictions in 1999, 2000 and 2003 for trafficking in dangerous drugs, for which he was sentenced to imprisonment for 18 months, 22 months and 24 months respectively.  The applicant is obviously a persistent offender of this type of offence.  This also shows that the previous sentences imposed on him are not serving a deterrent effect.  It was not unreasonable for Judge Sham to enhance the starting point in order to strengthen deterrence.  And while the enhancement by 9 months was on the high side, it was not manifestly excessive in the circumstances of the present case, particularly in light of the fact that the applicant was carrying 41 small packets of drug on the day of arrest.

14.Other than the applicant’s guilty plea, I can discern no other mitigating factors.  The one-third discount to sentence that Judge Sham gave to the applicant for his guilty plea was appropriate.

15.The applicant has relied on HKSAR v Yu Kwok Ming in support of his assertion that his sentence is manifestly excessive and unfair.  In Yu Kwok Ming, the defendant was charged with trafficking in 7.26 grammes of heroin hydrochloride.  Similar to the present case, the defendant discharged some further drugs while he was in custody.  That defendant had 8 previous convictions, 4 of which were for trafficking in a dangerous drug.  The judge adopted a starting point of 3 years and 9 months and, noting that some of the drug in question was for the defendant’s self-consumption, reduced the starting point to 3 years and 4½ months.  The judge then reduced the term by one-third discount on account of the defendant’s guilty plea and, in addition, gave the defendant a further one-month discount in sentence in light of his involvement in voluntary work.  In the end, the defendant was sentenced to 26 months’ imprisonment.

16.It has to be pointed out that sentencing decisions made by the District Court are not binding on the Court of Appeal and only serve as a reference.  Furthermore, in Yu Kwok Ming the starting point of 3 years and 9 months was on the low side in light of the quantity of drug involved.  More importantly, defendants are to be sentenced on the basis of the circumstances of each case.  For example, in Yu Kwok Ming, the judge accepted that some of the drug was for self-consumption, and this was a factor which warranted a reduction of the starting point.  No such factor or any other mitigating factor exists in the present case.  Put simply, it is not for this Court to rule that the sentence imposed in the present case is manifestly excessive or unfair merely because the defendant in another case was sentenced to a shorter term.

17.The applicant’s intended appeal against sentence has no merits.  Leave to appeal is refused accordingly.

Mr Jones Tsui, Senior Public Prosecutor of the Department of Justice, for the respondent.

The applicant in person, present.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor