HKSAR v. LO LAP KAN

CACC 44/2017

[2019] HKCA 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 44 OF 2017

(ON APPEAL FROM HCCC NO 311 OF 2016)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.  The applicant pleaded guilty to two counts of ‘trafficking in a dangerous drug’, namely 727 grammes of ketamine (Count 1), and 2,778.17 grammes of ketamine and 6.78 grammes of cocaine (Count 2).[1] He was sentenced to a total of 13½ years’ imprisonment. He applied for leave to appeal against sentence out of time.

Brief Facts

2.  On the evening of 17 July 2015, the applicant was leaving a building in To Kwa Wan when police officers stopped him and found in his possession a quantity of drugs (Count 1).  Using the applicant’s keys, the police then searched and found in his flat in the same building another quantity of drugs (Count 2).  In relation to each of these quantities, the applicant had admitted under caution that he intended to sell them for money.  In a subsequent interview, he said he was in fact working for someone called “Z Chai” who not only supplied him with drugs but also provided him with customer contacts.  For each delivery of drugs, the applicant would be given $500 to $2,000.

Reasons for Sentence

3.  Observing that there was no mitigating factor that could effectively be advanced on his behalf, DHCJ Poon, as ST Poon J then was (‘the Judge’), sentenced the applicant to a composite sentence of 13½ years’ imprisonment.

4.  This result was achieved by first applying the guideline cases on ketamine and cocaine, and according the applicant a one-third discount for pleading guilty.  For Count 1, which involved only one drug, this was a relatively straightforward exercise.  The sentence arrived at was 8 years and 6 months’ imprisonment.[2]

5.  Insofar as it concerned Count 2, which involved both ketamine and cocaine, the combined approach was used which gave rise to a sentence of 13 years and 2 months after plea.  The Judge explained :[3]

“ For the 2nd charge, that involved two different kinds of drugs. As submitted by Mr Ma, the quantity of cocaine involved when compared to the ketamine involved is relatively insignificant for the purpose of sentencing. The proper approach to take in the present case is the combined approach and the tariff of sentence for ketamine should be adopted for consideration of the sentence. With this approach, adding 6.7 grammes, that is the quantity of cocaine involved, to 2,778.17 grammes, the quantity of ketamine involved, the proper starting point for sentence for the 2nd charge should be 19 years and 9 months’ imprisonment.

 Taking into account the defendant’s plea of guilty, the defendant is sentenced for a term of 13 years and 2 months’ imprisonment for the 2nd charge.”

6.  Then taking into account the totality principle, the said total sentence of 13½ years’ imprisonment was reached, and this by ordering the above two sentences to run partly concurrently and partly consecutively :[4]

“ In relation to the overall sentence, this court should consider the totality principle. If all the drugs involved for the two charges are to be taken into account and using the combined approach, the total quantity for consideration would be 3,551.95 grammes. Adopting the tariff under Hii Siew Cheng and the principles stated in Sin Chung Kin, the proper starting point for sentence should be, in my view, 20 years and 3 months’ imprisonment.

Giving the discount for the defendant’s guilty plea, the sentence should then be reduced to 13 years and 6 months.

 In the circumstances, I order that 4 months of the sentence of the 1^st charge be served consecutively with the sentence of the 2^nd charge.  The rest of the sentences be served concurrently, making a total sentence of 13 years and 6 months’ imprisonment.”

Grounds of Appeal

7.  Whether it was the note attaching to his Notice of Application for Leave to Appeal, the letter he later wrote to this Court or the affirmation his mother filed in his support, the thrust of the applicant’s complaint was the same, ie the police had failed to act timeously on the information he provided, thus depriving him of the discount he should have received for assisting the authorities.  Citing two first-instance cases before us, he further contended that his sentence was excessive.

Alleged Police Inaction

8.  We have considered the applicant’s written and oral submissions in full, just as we have examined the Sivan-compliant material that the police had provided us.[5]  It does not surprise us that the police took their time to take any action.  In fact, we have serious questions about the applicant’s information which, when pursued, was unavailing. It had led to no one that is immediately traceable.  Nor is there clear evidence that this person was involved in any wrongdoing.

9.  In HKSAR v W,[6] Stock VP, as Stock NPJ then was, indicated that “some credit may be due to the defendant” where :[7]

“ …… the specific information is demonstrated to be truthful and likely to be of significant assistance to a prospective investigation which can reasonably be expected as a result of the provision of the information; where it is clear that the accused intends to testify in the event of an arrest and prosecution; but where the provision of the information is shown to bear no fruit by reason of clearly culpable inaction on the part of the law enforcement authorities …...”

This is not one of those “rare” and “wholly exceptional cases”, as His Lordship would put it.[8]  Had the police acted more expeditiously, it would not have made the slightest difference.

10.  The complaint under this head fails.

Whether Sentence was Excessive

11.  As said, the applicant had cited two cases both of which were sentences at first instance.  The first one was HCCC 100 of 2017 (2 June 2017).  It involved 659 grammes of cocaine in a single count of trafficking.  On a plea, the defendant was sentenced to 13 years and 3 months’ imprisonment.  This case is different, incomparable and of no help to the applicant.

12.  The second case was HCCC 122 of 2015 (23 February 2016).  It involved two counts of trafficking in a factual situation not unlike ours.  The total amount of drugs was 4,805.70 grammes of ketamine. For pleading guilty, the defendant was sentenced to a composite term of 13 years and 4 months’ imprisonment.

13.  Given those figures, we can understand why the applicant thinks he was unfairly treated.  That said, having perused the sentencing remarks in HCCC 122, it seems clear to us that the judge was unduly influenced by the age of the defendant (he was 18), a factor this Court has repeatedly said to carry little weight in mitigating the egregious crime of drug trafficking.

14.  For trafficking in 2,000 and 3,000 grammes of ketamine, the starting points of no less than 18 and 20 years’ imprisonment are appropriate: HKSAR v Sin Cheung Kin;[9] HKSAR v Chan Ka Yiu.[10]  In our case, the total amount of ketamine was 3,505.17 grammes; plus there was 6.78 grammes of cocaine which[11], on its own, would attract a sentence of about 3½ years: The Queen v Lau Tak Ming;[12] AG v Pedro Nel Rojas.[13]

15.  Analysed in this way, the overall starting point of 20 years and 3 months which the Judge adopted is unassailable.  Nor can it be said that the total sentence of 13½ years is excessive, not to mention ‘manifestly excessive’.

16.  The applicant’s second head of complaint also fails.

Disposal

17.  We refuse the applicant leave to appeal his sentence out of time and dismiss his appeal.