HKSAR v. WAN WAI LUN

CACC 90/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 90 OF 2017

(ON APPEAL FROM DCCC NO 1135 OF 2016)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against his sentence of 53 months’ imprisonment imposed by HH Judge Sham (the “judge”) in the District Court on 21 March 2017, following his plea of guilty to a single charge of trafficking in a dangerous drug, namely 29.80 grammes of a mixture containing 22.72 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant filed his Form XI Notice of application for leave to appeal against sentence within time on 6 April 2017.

The facts

3.  On 12 September 2016, at about 3:25 pm, police officers patrolling in Sham Shui Po area, Kowloon noticed the applicant riding a bicycle and acting furtively.  They intercepted him at what was termed in the charge a “sitting-out area” in Nam Cheong Street, near Fuk Wing Street, Sham Shui Po, and upon a body search found inside his underwear 2 transparent re-sealable plastic bags, containing a number of green packets of suspected dangerous drugs; and 2 transparent re-sealable plastic bags, containing a number of blue packets of suspected dangerous drugs.  A mobile telephone and HK$1,123 in cash were also found on the applicant.

4.  Upon arrest and caution, the applicant said he was working and asked for a chance.  In a subsequent video-recorded interview, the applicant said, inter alia, that: he had no home of his own and had been unemployed for half a year; a male called “Ah Wing” had invited him to deliver dangerous drugs for HK$800 a day and would contact him to make payment after 7 days; he had only been working for 3 days before he was arrested; he was to meet another male named “Ah Man” every day at 3 pm in Shek Kip Mei MTR station to collect ‘bak fun’ and then drop the drugs off in Nam Cheong Street “sitting-out area”; he knew that what was found on him was ‘bak fun’ but did not know why they were packaged in different coloured wrapping; and both the cash found on him and the mobile telephone were unrelated to drug trafficking.

5.  A Government Chemist later found that there were a total of 112 small packets found on the applicant, which upon examination were found to contain 29.80 grammes of a mixture containing 22.72 grammes of heroin hydrochloride.  The market value of the dangerous drugs in question was about HK$23,780.

6.  Upon his plea, the applicant admitted that he possessed the dangerous drugs for the purpose of trafficking.

Mitigation

7.  In mitigation, counsel then acting for the applicant submitted that he was 39 years of age and did not have a fixed abode, although he was permitted to return to live with his family in Yuen Long and occasionally went there to spend the night.  He had not worked since the year 2000 and relied on CSSA.  He had a daughter from a previous marriage in the Mainland, who was then nearly 16 years old.  It was submitted that his family was willing to give him moral support, and his mother and three sisters were present in court during the hearing.  A number of mitigation letters from various family members were produced to the court.

8.  Upon enquiry by the judge as to the relevant sentencing guidelines for the case, defence counsel confirmed that for amounts of heroin between 10 to 50 grammes of narcotic, the sentencing range was between 5 and 8 years’ imprisonment after trial.

Reasons for sentence

9.  In his reasons for sentence, the judge noted that the applicant had 10 previous convictions over the previous 14 years; two of which were for possession of dangerous drugs, for which he was sent to a Drug Addiction Treatment Centre.  This was the applicant’s first offence of trafficking in dangerous drugs.  The judge said he would apply the guidelines which he had earlier canvassed with counsel and adopted a starting point of 80 months’ imprisonment.  Affording the applicant a full one-third discount, he sentenced him to 53 months’ imprisonment.

Grounds of appeal

10.  Ms Priscilia Lam, on behalf of the applicant, argues a single ground of appeal that the judge was wrong to take a starting point of 80 months’ imprisonment, when the appropriate sentence after trial for the quantity concerned should have been, on an arithmetical basis, no more than 72 months’ imprisonment under the relevant guidelines in R v Lau Tak Ming & Others.[1]

11.  She points out that the applicant had no previous convictions for trafficking in dangerous drugs, nor did the judge suggest that there was any other aggravating feature in his case.  Indeed, the judge said he saw “no reason to depart from the guidelines set down by the higher court”.[2] Ms Lam submits that had the judge adopted a starting point in accordance with the guidelines of about 72 months’ imprisonment, the applicant’s ultimate sentence after plea should have been 48 months’ (or 4 years’) imprisonment, not 53 months’ (or 4 years 5 months’) imprisonment.

The respondent’s submissions

12.  Submissions were originally filed on 4 July 2017 by Mr Nicholas Wong, on behalf of the respondent, acknowledging that “the starting point of 80 months’ imprisonment was too high and the ultimate sentence of 53 months’ imprisonment might be too high”.

13.  However, Mr Eddie Sean, who appears on behalf of the respondent before me today, in his written argument filed on 18 August 2017 in lieu of the earlier submissions, argues that an 8-month higher starting point than a strictly arithmetical application of quantity to guideline would suggest was reasonable and within the judge’s discretion; and he cites two authorities suggesting that previous convictions for simple possession of dangerous drugs could have justified a higher starting point, since they were offences of a “similar” kind or nature to trafficking in dangerous drugs: see HKSAR v Lau Tsz Ho[3]; HKSAR v Chau Hon Kwong.[4]

Consideration

14.  In my judgment, there is a reasonably arguable ground of appeal that the judge has adopted a starting point that was too high for the quantity of narcotic concerned.  Absent any aggravating feature identified by the judge, an arithmetical approach to the quantity within the relevant Lau Tak Ming guidelines would have produced a starting point of about 72 months’ (or 6 years’) imprisonment.[5]  Yet the judge adopted a starting point of 80 months’ (or 6 years 8 months’) imprisonment.

15.  In HKSAR v Smit Hector Edward[6], the Court said of a similar complaint:

“A departure from a strict arithmetical starting point is not, by itself, objectionable, but where it is significant it should be explained.” (Emphasis added)

In Smit Hector Edward, the judge had adopted a starting point 5 months higher than an arithmetical application of the guidelines would have produced.  Yet, in that case, the starting point indicated by the relevant quantity on a purely arithmetical basis was over 20 years’ imprisonment and the Court interfered with the sentence, albeit for other reasons as well.  It seems to me that, if the emphasis is on the word “significant”, then an enhancement of 8 months when an arithmetical application of the guidelines would produce a base starting point of less than 10 years’ imprisonment is rather more significant than an enhancement of 5 months when an arithmetical application of the guidelines would produce a base starting point of more than 20 years.  Yet the judge in the present case gave no explanation for the enhancement.  Indeed, as Ms Lam argues, it would seem that he did not think there were any aggravating features.

16.  Notwithstanding Mr Sean’s valiant argument in support of the judge’s sentence, the ground of appeal put forward by Ms Lam remains reasonably arguable.  Accordingly, I grant the applicant leave to appeal on the ground advanced.  No doubt, at the hearing of the appeal, Mr Sean will be able to argue for a clear decision from the Court of Appeal as to whether previous convictions for possession of a dangerous drug can aggravate a sentence for trafficking and, if so, to what extent.