HKSAR v. CHAN TSZ-KIN

CACC 16/2022

[2023] HKCA 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 16 OF 2022

(ON APPEAL FROM HCCC NO 3 OF 2021)

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J U D G M E N T

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1.  On 17 May 2021, the applicant pleaded guilty to a single count of trafficking in a dangerous drug, namely 1,886.9 grammes of a solid containing 1,481.6 grammes of cocaine, after the case was committed to the Court of First Instance for trial but before a trial date had been fixed. On 26 August 2021, Wong J (the Judge) sentenced the applicant to 17 years’ imprisonment.

2.  On 21 January 2022, the applicant applied for leave to appeal against sentence out of time. In his affirmation, he explained that the delay was mainly due to the public health restrictions because of the pandemic.

The facts

3.  The facts outlined to the Judge and admitted on behalf of the applicant can be briefly stated as follows[1]. On 14 February 2020, the applicant was intercepted by police officers after he had left a residential flat in Tsim Sha Tsui. The police had the flat under surveillance and questioned the applicant about what was inside. He admitted he stored dangerous drugs in the flat and gave the police the password to the door to enable them to enter. The police searched the flat and found the drugs in question in 192 packets inside different containers. The applicant was arrested and cautioned. He admitted that he was to deliver the drugs for “quick money” and was promised a reward of $50,000.

4.  In a subsequent video recorded interview, the applicant said he came to know two persons in a bar in Europe who asked him if he was interested in receiving a parcel containing drugs for a reward of $30,000 to $50,000 on his return to Hong Kong. Upon receiving the parcel, he was to unpack it and then deliver the contents to someone else. He agreed, and subsequently received a package from a local courier. He unpacked the package, extracted the cocaine concealed in chocolate wrapping and repacked the drugs into resealable bags. He was awaiting further instructions for the disposal of the drugs when the police intercepted him.

The sentence

5.  After the presentation of mitigation, the Judge gave a lengthy set of reasons for sentence[2]. He reviewed the facts of the case and described the applicant’s background and personal circumstances. The applicant was 28 and single. He had studied up to Form 4 but was unemployed at the time of the offence. He had criminal convictions in 2008 for assault and handling stolen goods. In 2012, he was convicted for possession of a dangerous drug and sentenced to Drug Addiction Treatment Centre (DATC). In 2015, he was again sentenced to DATC for a conviction of criminal damage, and later received a total term of 28 months’ imprisonment for conspiracy to commit criminal damage and conspiracy to commit wounding.

6.  The Judge referred to the applicant’s mitigation, which included that he committed the offence due to financial stress during the social unrest and the outbreak of the pandemic in Hong Kong. He was cooperative throughout the investigation and was remorseful for what he had done. He was determined to turn over a new leaf and support his father, who had suffered an occupational accident and was not in good health.

7.  The Judge noted that for trafficking 1,481.6 grammes of cocaine, the appropriate starting point would be 23 to 26 years’ imprisonment according to the established sentencing guidelines.[3] On accepting the applicant’s role was low in the trafficking hierarchy, he adopted a starting point of 23 years and 3 months’ imprisonment.

8.  The Judge also noted that the applicant pleaded guilty after he had been committed for trial but before a trial date had been fixed. Having regard to HKSAR v Ngo Van Nam[4] and the circumstances surrounding the applicant’s change of plea, which involved the change of the legal representatives assigned by legal aid, the Judge awarded a discount of slightly more than 25% to the applicant for his guilty plea.

9.  In addition, the Judge gave a further discount of about 2½ months for the applicant’s cooperation and assistance to the authorities. This resulted in a sentence of 17 years’ imprisonment.

The grounds of appeal

10.  The applicant appears in person and advances two grounds of appeal. In his first ground, the applicant asks for a further sentencing discount for his cooperation and assistance to the authorities. The relevant principles and the approach when addressing the question of assistance rendered to the authorities by an accused for sentencing are set out in HKSAR v Yeung Hoi Ting[5]. This matter has been assessed by the authorities, who have determined that the information the applicant provided was not of any practical use. In the circumstances, he was treated generously by the Judge, who gave 2½ months discount to his sentence for the assistance he rendered to the authorities. This ground of appeal is, therefore, not reasonably arguable.

11.  In his second ground, the applicant asks for a further discount for his guilty plea. He explained his late plea was due to a change of legal representatives. He submits that he changed his plea at an earlier stage than the defendants in HKSAR v Ravinderjit Singh[6] and HKSAR v Lo Sze Tung Stephanie[7], and requests a lesser sentence be imposed on him. It is submitted by the respondent that the current practice for awarding a discount for a plea of guilty is subject to the overriding discretion of the judge as explained in HKSAR v Ngo Van Nam[8]. A discount of 20% from the starting point for sentence is afforded to a defendant who pleads guilty on the first day of trial. In contrast, a discount of 25% is afforded to a defendant who indicates that he wishes to plead guilty after he has been committed to the Court of First Instance but before trial dates have been fixed. The respondent submits that the sentence passed by the Judge was in fact lenient and was equivalent to a 26% discount. In the circumstances, this ground of appeal fails and is not reasonably arguable.

Conclusion

12.  In light of the foregoing reasons, the applicant’s leave to appeal against sentence out of time is refused.

13.  The applicant is informed that he can renew his application before the Court of Appeal, but should he do so and should the Court of Appeal find no merit for the renewal application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal.