HKSAR v. LI LEUNG FAI

CACC 74/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 74 OF 2017

(ON APPEAL FROM DCCC NO 1025 OF 2016)

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J U D G M E N T

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1.  The applicant was charged with unlawfully trafficking in a dangerous drug, namely 10.1 grammes of a solid containing 9.0 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 10 March 2017, he pleaded guilty to the charge in the District Court before HH Judge Dufton (“the judge”) and was sentenced to 3 years’ imprisonment.

2.  By way of a Notice of application for leave to appeal (“Form XI”) filed on 27 March 2017, the applicant applied for leave to appeal against his sentence.

Facts admitted by the applicant

3.  On 19 August 2016, at about 0122 hours, when the applicant was walking from Chuen Lung Street towards Tai Uk Street in Tsuen Wan, he was intercepted by some police officers who found that he was acting suspiciously.  Upon search, the officers found in the applicant’s left front trouser pocket a bag containing a suspected dangerous drug, later confirmed to be cocaine in the quantities stipulated in the charge.

4.  The applicant was duly arrested.  Under caution, he admitted that he had been paid HK$1,000 to carry the drugs in question, which admission was later post-recorded in a police notebook.

5.  At the time of his arrest, the applicant was found to be in possession of a mobile telephone, HK$2261.50 and RMB¥80 in cash.  A search of the applicant’s home then followed but nothing incriminating was found.

6.  The estimated retail value of the cocaine was HK$12,100.

Mitigation

7.  The applicant was 16 years and 11 months of age at the time of his arrest.

8.  During mitigation there was an exchange between the applicant’s solicitor and the judge as to whether there was any need to call for pre-sentencing reports.  The exchange went as follows:

“Mr Yuen: Yes, I don’t know whether you ask for the various reports, for a background report and an updated DATC report so that to enhance your passing sentence…

Court: Depends upon what you say and what you are going to urge upon me as to sentence as you’re quite - - what sentence options you think are available for me.

Mr Yuen: Yes, I think…

Court: I mean you have to have a look at it. It’s an excepted offence. I don’t need to call for reports in any event.

Mr Yuen: Okay. Then…

Court: Ordinarily, you would have if it’s someone under 21 but it being an excepted offence, that provision doesn’t apply. But in my view, it depends upon what I’m told but one has to look here also realistically. There is the authority which says Training Centre other than in most rare cases is inappropriate for trafficking drugs in large quantities. (In) relative terms, 9 grammes of cocaine is a large quantity because of the sentence it attracts. Secondly, he is not going to be suitable for Training Centre.

Mr Yuen: Yes, definitely, yes.

Court: Clearly, with him being in DATC, he is not going to be suitable. So is there really any point in calling - - even beginning to consider, even if I think it’s appropriate? I’ll have to be first persuaded it’s potentially a rare case.

Mr Yuen: Well, it’s not a rare case but if your Honour intend to have a gaol prison, I would like to start my mitigation rather than to wait for further reports…

Court: You can - - I mean you may persuade me to call for reports but I’ve got to look at what the purpose of calling the reports are for.

Mr Yuen: Well, it - - unless your Honour want to know more about the background of my client, otherwise, I think the background report is not necessary at all.

Court: I’m quite sure, Mr Yuen, you’ll be able to tell me as much as I need to know and although antecedents are usually very brief, this probably - - this one I’ve looked at quickly. It’s no exception but it does tell me…

Mr Yuen: Exactly.

Court: …it does tell me a little bit about him, his background, that he had been working, he was unemployed at the - - when he was arrested, and it also details his family background and his triad association…

Mr Yuen: Yes.

Court: …which is also referred to by the criminal conviction being a triad offence.

Mr Yuen: Exactly. Okay.

Court: I’m not sure I need a great deal more.  Mitigation, please.”

9.  Following the above exchange, it was submitted on behalf of the applicant that:

(a)   his parents were separated when he was very young;

(b)   he worked as a trainee in a salon;

(c)   he acted out of greed; and

(d)   he was a drug addict at the time of offence and was in need of money to finance his drug habit.

10.  A handwritten letter of mitigation by the applicant was produced to the court.  The letter stated that the applicant had reflected on his circumstances; he was very remorseful; and promised to behave in the future.  Finally, it was submitted that the best mitigation was the applicant’s plea of guilty.

Reasons for Sentence

11.  In his Reasons for Sentence, the judge was plainly aware of the applicant’s age at the time of the commission of the offence.  The judge acknowledged that section 109A of the Criminal Procedure Ordinance, Cap 221, stipulated that no court should sentence a person of or over 16 and under 21 years of age to imprisonment unless the court was of the opinion that no other method of dealing with such person was appropriate.  He observed that, although that provision did not apply to a trafficking offence, any court must be cautious before committing a young offender such as the applicant to prison.

12.  The judge went on to note that in Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853, the Court reaffirmed the sentencing principle that it was only in very rare cases where there were exceptional circumstances that a Training Centre order could be appropriate for a trafficking offence involving a substantial quantity of dangerous drugs.

13.  Applying that principle to the circumstances of the applicant, the judge held that the applicant had committed the present offence whilst on police bail for the offence for which he was subsequently sent to DATC.  He also derived from the applicant’s antecedent statement that he had a triad association.  The judge further considered that, since the applicant was currently serving a DATC order, it would be unlikely that he would be a suitable candidate for a Training Centre order.

14.  The judge referred to the relevant sentencing guidelines set down by the Court of Appeal in R v Lau Tak Ming & Another[1] and noted that trafficking in up to 10 grammes of cocaine would merit a starting point of between 2 and 5 years’ imprisonment.  On a purely arithmetical basis, the appropriate starting point for trafficking in 9.0 grammes of cocaine would be just over 4 years and 8 months’ imprisonment.  Bearing the applicant’s young age in mind, the judge adopted a reduced starting point of 4 years and 6 months’ imprisonment.

15.  Giving the applicant a full one-third discount for his plea of guilty, the judge imposed an eventual sentence of 3 years’ imprisonment.

Grounds of appeal

16.  Mr James Tze, counsel (on appeal but not in the court below), had advanced a single perfected ground of appeal on behalf of the applicant, namely that a Training Centre order was a more appropriate sentencing option, which the judge failed sufficiently to consider.  However, the applicant has this morning indicated that he does not wish to retain the services of the Legal Aid Department any further, since he does not agree with the ground advanced by Mr Tze.  Having heard his reasons for discharging Mr Tze and counsel’s response, I discharged Mr Tze from further appearing at the appeal.

17.  Acting on his own behalf, the applicant now says that he does not wish to go to a Training Centre.  Instead, he asks for a lenient sentence in view of his age, that he was used by someone else to deliver dangerous drugs and that this is his first conviction for a dangerous drug offence.

Respondent’s submissions

18.  Ms Ranee Khubchandani, on behalf of the respondent, argues that, in light of the quantity of cocaine in which the applicant trafficked, the offence was a serious one, which should normally warrant a sentence of imprisonment.

19.  She points out that, although the judge was open to persuasion on the point, the applicant’s solicitor did not persist with his request to call for pre-sentencing reports; indeed, he acknowledged that a Training Centre order was not a suitable option.

20.  As for the applicant’s relative youth, Ms Khubchandani submits that he should not be regarded as an extreme youth[2].  Absent any exceptional circumstances in favour of the imposition of a Training Centre order, she contends that the judge was correct in refusing to call for such a report.

21.  Ms Khubchandani submits that the term of imprisonment to which the applicant is subject is based on a correct arithmetical application of the relevant Lau Tak Ming guidelines to the starting point, for which there can be no complaint.

Discussion

22.  Interesting though Mr Tze’s argument might have been, since all of the authorities cited by Mr Tze and Ms Khubchandani involved somewhat larger quantities of dangerous drugs for which the sentencing bands for the respective dangerous drug concerned were higher, I am not going to consider this line of argument.  The applicant has obviously thought about it in practical terms and, having been in custody now for more than 1 year, he obviously does not see any benefit in being sent to a Training Centre, even if he were to be considered suitable for such an order, which is perhaps doubtful.  Obviously, he fears that a Training Centre order imposed at some future stage by the Court of Appeal, would actually result in him serving longer in custody in real terms than a determinate prison sentence.

23.  Having said that, I can see no reasonably arguable ground of appeal against the sentence of imprisonment imposed by the judge, who evidently considered the question of the appropriate sentence on the applicant very carefully, as the above exchange in mitigation demonstrates. The judge had obviously had regard to whether he should call for various reports, notwithstanding that trafficking in dangerous drugs is an excepted offence, decided not to do so, yet nevertheless went on to give the applicant a small reduction from the starting point on account of his age.  In my judgment, his approach cannot be faulted.  Nor can the arithmetical starting point of 4 years and 8 months’ imprisonment for the quantity of cocaine involved, from which he gave the applicant a 2 months’ discount for his age, be criticised. Finally, the one-third discount accorded by the judge for the applicant’s plea is unimpeachable.

24.  In my judgment, once the judge had determined that there was no other appropriate way to deal with the applicant than imprisonment, there can be no reasonably arguable ground of appeal against the ultimate sentence, which he approached correctly and in line with authority.

25.  The application must be refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application.