HKSAR v. FONG KAI-YIN MARCO

CACC 334/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 334 OF 2001

(ON APPEAL FROM HCCC 355 OF 1996)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 3 December 1996, the Applicant pleaded guilty in the High Court before Deputy Judge Wesley Wong to two charges of trafficking in heroin hydrochloride. The combined mixtures containing the heroin had a narcotic weight of just under 972 grammes, valued at approximately $1,400,000. The Applicant received an overall sentence of fourteen years' imprisonment against which, on 6 September 2001, for the first time, which was by then over four years late, he sought leave to appeal out of time. He gave as his reason for his extreme delay in making this application that he had received no legal advice and that, while serving his sentence, he came to feel aggrieved when he began to realise that there were others who had trafficked in similar quantities of heroin who had received lighter sentences.

2. Plainly, a very substantial ground must be shown for granting leave out of time, particularly when the delay is of this magnitude. In this regard, all that we need say is that neither of the reasons proffered by the Applicant provide an explanation which would justify granting leave out of time.

3. Nevertheless, we are entitled to consider the merits of an out-of-time application and today we are presented with perfected grounds of appeal by Mr Ching Y. Wong, SC, leading Ms Barbara Cheng, in which it was asserted that the judge erred in:

"not having considered sufficiently or at all the following relevant mitigating matters peculiar to the case, namely that the Applicant:

(a) was a man of hitherto clear record;

(b) was 21 years of age at the time of the offence;

(c) was tempted to be a courier by the person who had rented (premises in North Point); and

(d) had made no profit from the trafficking in dangerous drugs apart from the payment to him as a courier."

4. The ground went on to suggest that the sentence imposed was wrong in principle and/or manifestly excessive, although today Mr Wong limited his arguments by submitting merely that the sentence was wrong in principle because the judge had failed to give sufficient consideration to the Applicant's age and previous clear record.

5. Seldom, if ever, in a case of this sort, have we seen a less meritorious application. It is not only more than four years out of time, but every aspect of the perfected grounds reveals a total misconception of the sentencing principles to be applied in cases concerned with trafficking in dangerous drugs. The Applicant's age (see: HKSAR v Manalo [2001] 1 HKLRD 557) and clear record (see: HKSAR v Poowongsa Worachet & Anor, CACC 218/2001) could have had no impact of any significance on the appropriate starting point to be adopted, and that has effectively been the situation since the decision in Lau Tak-ming [1990] 2 HKLR 370 at 386F-G.

6. In fact, the judge took twenty-one years as his starting point, having heard defence counsel, who was then instructed, sensibly suggest, in accordance with ample previous authority, that the probable range for sentence after trial was between twenty to twenty-five years' imprisonment. Counsel in the court below went on to submit, again very properly, that twenty to twenty-one years was perhaps the realistic starting point having regard to the quantity of heroin involved.

7. The Applicant was not a mere courier as Mr Wong had suggested. The tenancy agreement and rental receipts which were found at the Applicant's flat where a considerable amount of drugs' paraphernalia was discovered, including chemical additives, electronic balances and a blender, bore his name. His fingerprints were also found inside these premises. However, even if he had only been a courier, the Applicant was as such deserving of no special treatment outside the normal guideline tariff. The fact that we are told he made no profit, which in itself is a most unlikely story in the present context, is neither here nor there. In any event, this aspect was no longer relied upon.

8. All in all, the Applicant was being sentenced for a particularly grave offence of trafficking in heroin. The sentence the Applicant received was the very least he could reasonably have expected.

9. We refuse to give leave out of time and the application is dismissed.