HKSAR v. LUI CHEUNG CHI

CACC 76/2020

[2021] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 76 OF 2020

(ON APPEAL FROM HCCC NO 381 OF 2019)

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J U D G M E N T

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Introduction

1.  The applicant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty to the charge in the Magistrate’s Court and was committed to the Court of First Instance for sentence.  On 31 March 2020, Deputy High Court Judge Johnny Chan sentenced the applicant to a total of 7 years and 4 months’ imprisonment.

2.  On 11 June 2020, the applicant filed a Form XI to apply for leave to appeal against his sentence out of time.  The applicant appears in person at the hearing of the application, having had legal aid refused.

The facts

3.  In the early hours of 25 January 2019, the applicant was observed by police officers acting furtively outside a taxi stand near Choi Ming Court, Choi Ming Street, Tiu Keng Leng.  He was stopped and searched by the police officers, who found inside a dark-coloured paper bag that he was carrying, 0.76 gramme of a solid, containing 0.63 gramme of cocaine; 20.89 grammes of a solid, containing 17.78 grammes of ketamine; and 63.38 grammes of crystalline solid, containing 63.38 grammes of methamphetamine hydrochloride, commonly known as Ice.  The cocaine was contained in 4 plastic bags, the ketamine in 25 plastic bags, and the Ice in 9 plastic bags. 

4.  The applicant was arrested and cautioned, and in response he asked if bail was available.

5.  A search was conducted of the applicant’s residence, where police officers found in the lower drawer of his bed, a sealing machine and a box of transparent resealable plastic bags.

6.  In a video recorded interview, the applicant admitted, amongst other things, that he had been approached to act as a drug courier and that he was to be rewarded in the sum of $1,000 upon successful delivery of the drugs.

7.  The total estimated value of the dangerous drugs seized was about $45,826.

The applicant’s mitigation

8.  At the time of the offence, the applicant was aged 21 and single.  He was educated up to Form 4.  He worked as a part-time transportation and warehouse worker, earning $500 per day.  He had a previous conviction for theft in August 2011, for which he was put on probation for 15 months.

9.  It was submitted on the applicant’s behalf that his father suffered from a psychiatric illness as a result of drug and alcohol dependency and that he committed the offence in order to earn some money to improve the standard of living of his parents.

10.  The judge was urged to adopt a combined approach in sentencing the applicant.  It was submitted that this should be done by using the tariff for Ice as the base for determining the starting point because this was the most potent, and of greater quantity, of the three drugs.

11.  A calculation was submitted to the judge of the three tests for checking if a starting point for the nature and quantity of drugs involved is appropriate.[1]  This resulted in starting points of 11 years and 2.5 months for the absurdity test; 10 years and 10 months for the conversion test; 10 years and 2 months for the ratio test.

The reasons for sentence

12.  The judge considered the nature and quantities of the dangerous drugs involved, the fact that three kinds of drugs were seized in the present case, and the mitigation presented on behalf of the applicant.

13.  The judge adopted the combined approach in determining an appropriate sentence and used the tariff of Ice as the base for this purpose. He considered the initial starting point of 10 years 6 months’ imprisonment was appropriate for 63.38 grammes of Ice.  He then adjusted the starting point upward by 6 months to 11 years’ imprisonment for the presence of 17.78 grammes of ketamine.  The notional starting point was reduced by one third to 7 years and 4 months’ imprisonment for the applicant’s timely plea. 

14.  The judge found no other mitigating factors to warrant any further adjustment to the applicant’s sentence.  He considered the health condition of his father and the reason for committing the offence were not mitigating factors.

The grounds of appeal

15.  In his Form XI, the applicant did not set out any grounds of appeal.  He simply stated that the sentence was too heavy.

Discussion

16.  The applicant did not provide any explanation for the late filing of his application for leave to appeal his sentence out of time. 

17.  There are clear sentencing guidelines for trafficking in a dangerous drug as well as a clear approach in determining an appropriate sentence when there is a multiplicity of drugs involved.  The judge followed the correct approach and applied the appropriate sentencing guidelines when determining the sentence he imposed on the applicant.

18.  The more and most serious drug involved, in terms of potency, was Ice.  According HKSAR v Tam Yi-chun [2014] 3 HKLR 691, a starting point of 10 years and 6 months’ imprisonment was appropriate for 63.38 grammes of Ice.

19.  The quantity of cocaine involved was very small and the judge was right not to adjust the sentence upwards for it.  The quantity of ketamine was more significant, consisting of 17.78 grammes, and represented about 22% of the total quantity of the drugs involved.  The judge was therefore correct to make an upward adjustment to the starting point of 6 months.  There were the additional factors that the ketamine was contained in 25 plastic bags and the Ice in 9 plastic bags, which indicated it was ready for sale or distribution, and that ketamine is commonly used with other drugs to prolong its effect.

20.  The applicant has no cause for complaint for the starting point that was adopted by the judge of 11 years’ imprisonment and for the sentence he received of 7 years and 4 months’ imprisonment following a reduction of one third discount for his guilty plea.  Accordingly, the application for leave to appeal sentence out of time is refused. 

21.  The applicant is reminded of his right to renew his application for leave to appeal against his sentence out of time to the Court of Appeal, but he is also warned of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1] HKSAR v Chan Yuk-leong, CACC 318/2013.