HKSAR v. LUK CHUN MAN

CACC 146/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 146 OF 2006

(ON APPEAL FROM DCCC NO. 172 of 2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  This is an application for leave to appeal against a sentence of 3 years and 8 months’ imprisonment imposed on 4 April 2006 by Deputy District Judge Mackintosh in respect of a charge of trafficking in a mixture containing 9.87 grammes of heroin hydrochloride to which the applicant, aged 20, pleaded guilty.

2.  The facts, shortly described, established that on 4 January 2006 the applicant was found holding a bag which contained five resealable bags each containing twenty packets of suspected drugs.  When he was arrested, the applicant said that because he had recently been unemployed he was helping others to carry the powder so that he could “earn a few hundred dollars to spend”.  The task he had been given involved collecting the drugs from their hiding place in a building on the Wang Tau Hom Estate in Wong Tai Sin and putting them on a flowerbed at a designated location.  He was intercepted after taking the drugs from the place where they had been hidden.

3.  In passing sentence, the judge accepted that the applicant was not going to make a large profit from his activity but he went on to say:

“… Here there were quite a large number of packets so this quantity of drugs was ready for distribution to a large number of users.  That is an element of aggravation which I am bound to take into account.

3. You are only 20 years of age yet you have a previous conviction in the year 2000 for trafficking in dangerous drugs, which I am told was also heroin.  Because of your age, then 14, you were dealt with in the Juvenile Court and you were dealt with by way of a probation order with a condition of residence for nine months at a boys’ home.  That was, in any view, a lenient sentence; you might have been sent to Detention Centre or Training Centre for trafficking in dangerous drugs.  I make it clear that you are not to be sentenced again for that offence but it does amount to an aggravation of the present offence; if a person re-offends in the same way then a court will obviously take a more serious view of the fresh offence.”

4.  The judge then indicated that the normal sentence for trafficking in about 10 grammes of heroin would be 5 years’ imprisonment but that, given the matters to which he had referred, the appropriate starting point was one of 5½ years’ imprisonment.  The judge added that the applicant’s relatively young age could not be a reason for reducing the starting point but that a full discount of a third would be given to reflect his guilty plea.

5.  The grounds of appeal raised by Mr Hoosen, on the applicant’s behalf, amounted to a submission that the judge had erred in principle by treating the applicant’s previous conviction for trafficking and by having regard to the fact that there were a large number of packets of heroin as elements which aggravated the offence for sentencing purposes.  As to the first of these elements, Mr Hoosen laid emphasis on the previous conviction having been six years earlier when the applicant was 14 years old.  As to the second element, he submitted that there was, in any event, no evidence to show that the applicant had any awareness of the way the drugs had been packaged inside the bag he was holding on arrest.

6.  Ms Rosaline S Y Leung, for the respondent, submitted that the judge was entitled to increase the starting point for the reasons he had given.  In regard to the previous conviction, the applicant had not merely committed an offence of a similar kind but had re-offended in exactly the same way as before (see: HKSAR v Chan Pui-chi [1999] 3 HKC 848).  In regard to trafficking in a quantity of heroin which had been divided into a hundred separate packets, she referred to the judgment in R v Lau Tak-ming and Ors [1990] 2 HKLR 370 at 386 where Silke VP said:

“The tariffs which we are about to set out are intended for imposition after trial.

Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.” (Emphasis added)

The court went on to provide a guideline sentencing tariff of 2 to 5 years’ imprisonment for “up to 10 grammes of narcotic”.

7.  Although the starting point adopted by the judge in the present case was not “within the suggested band” the court had set out in Lau Tak-ming, the judge was entitled to go above the 5-year ceiling for the reasons provided in HKSAR v Yuen Wing-chuen CACC 436/2005 (unreported).  There, it was decided that it would not be sensible that a sentence could be enhanced only when the tariff lay at the “lower end of the suggested band” and not (as in that case) “when the tariff lay at the very top of the suggested band”.  A similar situation arises in the present case where the quantity of heroin fell just short of 10 grammes.

8.  Our concern in this case has been largely directed at the absence of any evidence to show that the applicant was aware that he was trafficking in numerous packets of heroin.  His own account, on the facts as they were summarised, was consistent with complete ignorance on his part.  His role appears to have been confined to taking “a bag” from its original hiding place to a new location.  We consider that, in the same way that a trafficker who has or may have trafficked in dangerous drugs which he has reason to believe were different and less serious in kind to the drugs in which he was actually engaged in trafficking may justifiably be given a reduced sentence, the applicant’s lack of awareness in this case about the number of packets of drugs in the bag he was carrying meant that the sentence ought not to have been enhanced.  Indeed, as a factor which leads to the aggravation of a sentence for trafficking in dangerous drugs, we are doubtful that the mere “number of packets”, as it was expressed in Lau Tak-ming, will ever in itself be a substantial reason for aggravating a sentence on the part of a courier caught in circumstances such as these.  The guideline tariff is already a substantial one based, as it is, upon the narcotic weight of the heroin whether or not it has been divided into smaller packets.  The position might well be different if the trafficker was a distributor caught, for example, in a public park or at a place of entertainment or outside a school in possession of a large quantity of packets.

9.  We also have in mind, with regard to the other reason given by the judge for increasing the starting point to 6 months above the usual guideline tariff, that six years had elapsed since the applicant’s previous offence which he had committed as a juvenile.  Whilst this was a factor which the judge was entitled to consider, in our view, the present circumstances did not truly give rise to the concern, as expressed in Chan Pui-chi (above) at page 851, where:

“… the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other.  The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender.”

10.  Unusual though it is for this court to interfere with the exercise of a judge’s discretion, we consider that in this case we must do so for the reasons we have outlined.

11.  Accordingly, we shall grant leave and, treating the hearing as the appeal we shall, as a matter of principle, reduce the sentence from 44 months to 40 months’ imprisonment to give effect to a starting point of 5 years for this offence reduced by a third for the guilty plea.  To this extent, the appeal is allowed.