HKSAR v. WONG PAK YEUNG AND ANOTHER

CACC 352/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 352 OF 2009

(ON APPEAL FROM HCCC NO. 94of 2009)

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JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1.  The applicants arrived on 9 November 2008 at Hong Kong International Airport from Johannesburg, South Africa. They were intercepted. The first applicant was found to have powder containing 798.79 g of cocaine strapped to his waist and thighs. When he was arrested and cautioned he responded that the substance he was carrying was "Coke".

2.  The second applicant had collected a bag bearing a luggage tag in the name of the first applicant. He, too, was searched: strapped to his waist and calves was powder which contained 1580.79 g of cocaine. When he was arrested he said he did not know the nature of the substance. In a subsequent search of his residence a small amount of herbal cannabis was found, which the prosecution accepted to be for his personal consumption.

3.  The applicants appeared on a joint indictment before Lunn J: each pleaded guilty to the single charge of trafficking in a dangerous drug against him and the second applicant also pleaded guilty to a charge of possession of dangerous drugs. On 6 October 2009, the first applicant was sentenced to undergo imprisonment for a period of 14 years and 8 months whereas the second applicant was sentenced to undergo imprisonment for 16 years and 8 months on the trafficking count and fined $2000, or seven days in default, on the count of possession of a dangerous drug.

4.  Each gave notice of his intention to apply for leave to appeal the sentences. On 2 March 2010 the first applicant abandoned his application. He now makes application for leave to treat the abandonment as a nullity and, in support has filed an affirmation in which he said that, due to what he describes as "... insufficient knowledge in laws...", he was under the impression that that course "... simply meant preserving the right to lodge an appeal and [he] could make an application for appeal again in future when new development emerged."

5.  It is well settled that a court will only grant an application to treat the abandonment of an application for leave to appeal as a nullity where the applicant is able to demonstrate that the abandonment itself is a nullity: where it is satisfied that the mind of the applicant did not go with the abandonment. (See, e.g., HKSAR v LAI Siu-cheung [2005] 1 HKLRD 1;  HKSAR v LAW Kam-fai & Ano.  [2006] 2 HKLRD 879 and HKSAR v YEOH Sooi-hong & Ano. CACC278/2009).

6.  The first applicant's application fails to meet that test. A mistake as to the effect of the conscious act which he undertook does not avail him. The application is dismissed as a consequence of which it is unnecessary for us to consider the merits of the appeal itself.

7.  The second applicant persists in his application. He compares the starting point of 25 years imprisonment adopted by the judge, from which he received the traditional one third discount consequent upon his plea, with the starting points adopted in other cases where persons have been sentenced for trafficking in dangerous drugs. Such an approach is only of limited value.

8.  The judge noted, correctly, when sentencing:

It is a factor of aggravation in respect of the circumstances of the commission of the offences alleged in Counts 1 and 2 that you were importing the cocaine stipulated in the respective counts into Hong Kong from abroad. Each of you had gone to a great deal of trouble in order to import the drugs. You had travelled halfway around the world to do so; that is to say from Hong Kong to South America and back via South Africa to Hong Kong.

9.  The second applicant did not seek to advance any argument in respect of the sentence imposed on the second count against him.

10.  The starting point taken in respect of the first count and the discount afforded were both appropriate. There was no further mitigation available. There is no merit in the second applicant’s application, which is dismissed.