HKSAR v. LAU TSZ HO

CACC144/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 144 OF 2014

(ON APPEAL FROM HCCC NO. 36 OF 2014)

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JUDGMENT

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1. On 17 January 2014, the applicant pleaded guilty in the magistrates’ court to an offence of trafficking in a dangerous drug on 10 October 2013, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was committed to the Court of First Instance for sentence.  On 9 April 2014, he was sentenced by Deputy High Court Judge Beeson to imprisonment for 6 years.  He now seeks leave to appeal against that sentence. 

Facts

2. On 10 October 2013, the applicant was intercepted by police officers in the vicinity of Boundary Street near Ki Lung Street and a search was conducted of his person.  In the course of the search 4 transparent resealable plastic bags containing a total of 28.48 grammes of methamphetamine hydrochloride, commonly known as ICE, were found in the right front pocket of the applicant’s shorts.  An electronic scale was also found in the pocket of the shorts.

3. The applicant was arrested and cautioned.  Under caution, he stated “Sir, I delivered these four packets of ICE just to earn $400.  Please give me a chance”.

4. The street value of the drug was $19,660.

5. In a subsequent video-recorded interview, the applicant stated, inter alia, that he was assisting a person “Chu Chai” to carry the dangerous drugs. This person Chu Chai, he said, had given him the drugs at an amusement centre earlier that day and told him to deliver them to persons at Boundary Street. He was waiting for Chu Chai’s call when he was arrested.

The Mitigation

6. The applicant was born on 2 July 1986 and so was 27 years of age at the time of sentence.  He had been in trouble with the law since his first conviction on 7 February 2007 when he was only 20 years of age.  He was then convicted of possession of dangerous drugs and fined.  Through his counsel the applicant claimed to have been a drug addict since the age of 17 years.

7. His next conviction was on 22 November 2007 when he was convicted of trafficking in a dangerous drug but only sentenced to Drug Addiction Treatment Centre (DATC).  His counsel explained that the reason for this was because the applicant was not engaged in commercial trafficking but was only sharing drugs with his friend and the quantity was less than one gramme of ICE.

8. His first commercial trafficking offence was in 2009 when he was sentenced to 4 years 8 months’ imprisonment.  On discharge from prison he remained addicted to ICE and on 4 January 2013 was convicted of three possession offences for which he was sentenced to DATC.  In June 2013 he was convicted of criminal damage and sentenced to 2 weeks’ imprisonment suspended for 2 years.  The current offence was committed in the course of this two year suspension.

9. Prior to the present offence the applicant had been working as a driver earning about $10,000 per month.  However, he ceased working as a driver about two weeks before committing the present offence.  He only has form 3 education, is single and before his arrest was living with his parents and younger sister.

10. In support of a submission that the applicant was remorseful, his counsel tendered two letters to the court.  One was from the applicant and the other from his father.  The judge described their contents as follows:

“The defendant indicates his remorse and claims he was used by a group of drug dealers who caused him to commit the crime. He promises his family that he will never touch drugs again and acknowledges his realisation that he will receive a higher sentence for this offence.

His father also asks for leniency.  He asks the court to consider what he terms as ‘the young age’ of his son.  He points out the one who suffers significantly in this matter is the defendant’s grandmother, who is ill.  The father says that he himself has heart disease for which he requires treatment.  He asks the court to give a lighter sentence.”

The Judge’s Reasons for Sentence

11. The judge accepted that the applicant had been addicted to ICE since the age of 17 years. 

12. She said she had listened to the recording of the 2009 sentencing hearing and noted that the offence of which the applicant was then convicted involved a very similar factual situation to the present case and that the judge in that earlier case had considered enhancing the starting point but in the end had decided not to do so.  The judge concluded:

“It appears to me that up to now the defendant has been treated fairly leniently in respect of his offences.”

13. The judge referred to the sentencing guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125 which provides a range of 7-10 years’ imprisonment for quantities between 10-70 grammes of ICE.  Applying that guideline and taking into account the applicant’s previous criminal record, the judge adopted a starting point of 9 years’ imprisonment.  She did not indicate her pre-enhancement starting point.

14. The judge found the applicant’s plea of guilty was the only mitigating factor.  She thus reduced the sentence to 6 years’ imprisonment for the applicant’s guilty plea.  She ordered that the suspended sentence in KCCC2229/2013 should be served consecutively to the sentence of the present case. 

Grounds of Appeal

15. There is only one ground of appeal and that is that the judge erred in adopting a significantly higher starting point to take into account the applicant’s criminal record.  In support of this ground Mr Marray, for the applicant, submitted that the amount involved, namely 28.48 grammes of ICE, is nearer the lower end of the scale and on a mathematical basis should attract a starting point of 7 years 10 months’ imprisonment, a calculation with which Mr Lee, for the respondent, does not disagree.  Since there were no aggravating features associated with the trafficking, the basis of the judge’s enhancement much have been solely his criminal record.  Mr Marray argues that by enhancing the starting point to 9 years’ imprisonment the judge is punishing the applicant for his previous criminal convictions with the consequence, he says, that the final sentence of 6 years’ imprisonment is manifestly excessive.

Discussion

16. Applying the guideline laid down by the Court of Appeal in the Ching Kwok Hung case, the starting point for the amount of drug involved in the present case should be around the 7 years 10 months’ imprisonment suggested by Mr Marray if a purely mathematical approach is taken.  The applicant’s role as courier does not distinguish him in any way from the bulk of traffickers before the court and so a weight-based mathematical calculation is appropriate.  The judge was correct in saying that there was no mitigating feature present to justify a reduction in sentence and Mr Marray is correct in saying there is no aggravating feature present to justify enhancement other than the applicant’s criminal record.

17. Thus, the only issue before us is whether the enhancement adopted by the judge for the applicant’s previous convictions, namely 14 months, is excessive in the circumstances of this particular applicant.  

18. It is well established that the fact that a defendant is a “persistent re-offender” is an aggravating factor that entitles the court to adjust upward the appropriate starting point of his sentence (see R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830).  The reason for this is because the applicant has shown by his conduct a need for greater personal deterrence and a need for the court to give greater prominence in its sentence to protection of the community from the offender’s criminal activity.  It has nothing to do with again punishing the offender for past criminal acts.  Of course, if the enhancement is excessive then the aggrieved offender may well feel that that is precisely what has happened to him.

19. Given the applicant has 8 previous convictions, 2 of them for the same offence and 5 of them for possession of dangerous drugs, it is clear that some enhancement of the starting point is warranted.

20. Because one of the twin goals of enhancement is to deter the offender the court is required to assess what is necessary to achieve this purpose.  To this extent the sentence must be tailored to the needs of the individual offender before the court.

21. The judge thought that this applicant had benefited from leniency in the past and had not taken advantage of it.  Clearly he had not for he would not otherwise be back before the court.  The question for us is whether the judge was correct to assess that the time for extending any further leniency to this applicant was past.

22. The judge accepted the applicant is an addict and she also accepted, or at least did not reject the assertion, that one of his trafficking offences was a non-commercial sharing of a small quantity of drugs with a friend.  That left her with an offender who is a drug addict and who in reality had only one commercial trafficking conviction; who appeared to not just be demonstrating remorse but also to have the support of his family to assist in his rehabilitation.  In these circumstances, with respect, in our judgment the judge fell into error in the view she formed of the applicant. 

23. In HKSAR v Abdallah [2009] 2 HKLRD 437 this Court said that in respect of 1 kg of drug where there was present any 1 of 4 aggravating factors then the enhancement should be 2 years’ imprisonment.  One of the 4 aggravating factors referred to by the Court was the existence of a prior conviction for drug trafficking.  Recently in HKSAR v Chung Ping Kun, CACC85/2014, unreported, 2 July 2014 this Court suggested that as a broad guideline the level of enhancement for quantities of drugs below 1,000 grammes should be as follows:

1)  Up to 250 grammes     6 months

2)  Between 250 and 500 grammes  6 months to 1 year

3)  Between 500 and 1,000 grammes  1 year to 2 years

24. The appropriate starting point for the quantity of ICE in which the applicant was trafficking is 7 years 10 months. Applying the guidelines suggested in Chung Ping Kun, in our judgment the appropriate enhancement of sentence was 6 months’ imprisonment.  Accordingly, the enhanced starting point for sentence is 8 years 4 months’ imprisonment.  Discounted by one third to allow for the applicant’s plea of guilty the final sentence is 5 years 6 months’ imprisonment.

Conclusion

25. For these reasons we allow the application for leave to appeal sentence, treat the hearing of the application as the hearing of the appeal, we allow the appeal and quash the sentence imposed by the judge and in substitution for it, sentence the applicant to 5 years 6 months’ imprisonment.