HKSAR v. YU NGAI TO

CACC 76/2024 [2024] HKCA 893

On appeal from [2024] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 76 OF 2024

(ON APPEAL FROM HCCC NO 184 OF 2023)

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J U D G M E N T

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1.  On 27 March 2024, the applicant appeared before Andrew Chan J (the judge) for sentence, having pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. After hearing mitigation for the applicant, the judge sentenced him to 6 years and 8 months’ imprisonment.

2.  The applicant now applies for leave to appeal against his sentence. He appears in person, having had legal aid refused. His sole complaint against his sentence is that the starting point exceeds the sentencing tariff.

The agreed facts

3.  The facts agreed by the applicant and outlined to the judge were as follows.[1] In the morning of 19 November 2021, police officers entered the applicant’s flat to investigate a burglary incident, which had been reported by his mother.

4.  Upon a search of the flat, the police officers found in the applicant’s bedroom the following quantity of drugs in plastic bags, 48.46 grammes of a solid containing 35.19 grammes of cocaine and 273.01 grammes of a solid containing 229.06 grammes of ketamine. Two electronic scales and a packaging machine were also found in the flat. It was agreed that the street value of the drugs at the time of the offence was $262,181.

5.  Before they had entered the flat, police officers had intercepted a school friend of the applicant, Wong Fai Wong (Wong), as he was leaving the building. The applicant, under caution, admitted that he been asked by Wong, his school friend, to store, package and deliver the drugs. Wong promised him a reward of about $5,000 every three days. The drugs were supplied to him by Wong on 16 November 2021, and he had not yet received any reward from him.

The sentence

6.  In mitigation, it was submitted that the applicant was 20 years of age and single at the time of the offence. He was educated up to Form 2 level. He had a prior conviction for trafficking in 2019 when he was 15 years of age. He was ordered to attend a Detention Centre and was discharged in 2020.[2]

7.  The sentencing guidelines for trafficking between 10 and 50 grammes of cocaine is 5 to 8 years’ imprisonment: R v Lau Tak Ming and Others [1990] 2 HKLR 370 and Attorney General v Rojas [1994] 1 HKC 342; and for trafficking between 50 and 300 grammes of ketamine is 6 to 9 years’ imprisonment: Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

8.  In submissions before the judge, the parties agreed that the notional starting point for trafficking in the two dangerous drugs was between 109 and 115 months’ imprisonment.[3] This range was in line with the sentencing guidelines when converting the quantity of ketamine to correspond with the sentencing guidelines for cocaine. The judge, in any event, adopted a notional starting point of 109 months’ imprisonment, which he enhanced by 11 months for his role and culpability and previous criminal record, to 220 months’ imprisonment. He noted the applicant was responsible for safe keeping, repackaging and delivering the dangerous drugs for financial reward. This elevated his role and culpability beyond that of a mere courier and warranted an enhancement to his sentence. The judge reduced the notional starting point by one third for the applicant’s guilty plea to 80 months’ imprisonment, equating to a sentence of 6 years and 8 months’ imprisonment.

Conclusion

9.  The sentence imposed was just and appropriate in light of the quantity of cocaine and ketamine. It was neither wrong in principle nor manifestly excessive. The applicant’s complaint against his sentence is without merit and he is refused leave to appeal against his sentence.

10.  The applicant is reminded of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but he is also informed of the consequences 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 renewal of his application.