HKSAR v. LAU YIU MING

CACC 92/2019

[2020] HKCA 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 92 OF 2019

(ON APPEAL FROM HCCC NO 190 OF 2018)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  Following his pleas of guilty on 4 June 2018 in the Magistrate’s Court, the applicant was committed for sentence to the Court of First Instance on two charges of trafficking in a dangerous drug, namely 55.9 grammes of a mixture containing 45.4 grammes of heroin hydrochloride (Charge 1) and 692.17 grammes of a mixture containing 562.01 grammes of heroin hydrochloride (Charge 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 1 March 2019, he was sentenced by Toh J (“the judge”) to 13 years and 4 months’ imprisonment.

2.  The applicant subsequently applied for leave to appeal against his sentence and on 20 December 2019, he was refused leave to appeal against sentence by the Single Judge[1].  He then renewed his application for leave to appeal against sentence before the Court of Appeal.

3.  At the hearing of the application we refused it, dismissed his appeal and directed that two months of the time he has spent in custody pending the determination of his appeal shall not be reckoned as part of the term of his sentence.  We said we would hand down our reasons for our decisions at a later date.  These are our reasons.

The Summary of Facts

4.  The Summary of Facts which the applicant admitted and which was used for his sentencing revealed that on 1 August 2017, at around 8:45 pm, police officers stopped the applicantwhen he was seen walking out of No. 18 Larch Street, Tai Kok Tsui, Kowloon.  Upon a search of his person, the police officers found two packets containing suspected dangerous drugs hidden inside his underpants.  These were subsequently confirmed to be 55.9 grammes of a mixture containing 45.4 grammes of heroin hydrochloride.  The applicantwas arrested and, in response to being cautioned, he claimed that the white powder was for his own consumption.

5.  The police officers also seized from the applicant a key which they then used to unlock the door to his residence at Room 6 on the 6^th floor of the same building.  In his presence, a rucksack was found on his bed which contained the following items:

(a)  one packet, containing 351 grammes of a mixture containing 285 grammes of heroin hydrochloride;

(b)  one packet, containing 297 grammes of a mixture containing 242 grammes of heroin hydrochloride;

(c)  one plastic bag, containing 24.3 grammes of a mixture containing 19.3 grammes of heroin hydrochloride;

(d)  one plastic bag, containing 16.3 grammes of a mixture containing 12.9 grammes of heroin hydrochloride;

(e)  one plastic bag, containing 3.57 grammes of a mixture containing 2.81 grammes of heroin hydrochloride;

(f)  two electronic scales; and

(g)  some empty transparent re-sealable plastic bags.

6.  When further cautioned in respect of these drugs the applicant accepted that the white powder belonged to him.

7.  In a subsequent video record of interview, the applicant accepted that he possessed the dangerous drugs seized from his rucksack for the purpose of trafficking.  He also admitted that he had been selling dangerous drugs for two months earning $260,000 in total.  He said he was expecting to earn between $80,000 and $100,000 for the present trafficking. 

8.  The estimated value of the dangerous drugs found on his person and in his rucksack was $475,024. 

The mitigation

9.  The applicant was 47 years of age and educated to Form 3 level.  Prior to the arrest on 1 August 2017, he worked as a transportation worker for a vegetable store, earning a monthly income of about $15,000.  It was asserted by counsel on his behalf that, in June 2017, he agreed to keep and deliver the dangerous drugs for a female friend surnamed Chan and nicknamed “Ah Sou”. 

10.  Prior to sentencing the applicanthad provided information to the ICAC and to the police in respect of his accomplices and their drug trafficking activities.  Ultimately, the applicant’s assistance to the ICAC was not pursued by the applicant’s counsel as a mitigating factor and his counsel also accepted that the information the applicant had provided to the police was not fruitful. 

11.  The applicant had a lengthy criminal record.  He had over 20 previous convictions and 4 of them were related to drug trafficking. Two trafficking charges, together with a charge of managing a divan, dated back to 2005.  He pleaded guilty to these offences in the District Court and was sentenced to a total of 25 months’ imprisonment.  The other two charges related to trafficking in heroin hydrochloride.  He pleaded guilty in the Court of First Instance to these charges and he was sentenced on 9 September 2009 to a total of 64 months’ imprisonment.

The judge’s Reasons for Sentence

12.  The judge referred to the sentencing guideline in HKSAR v Abdallah[2] which stipulated that trafficking in a quantity of heroin hydrochloride that was between 600 and 1,200 grammes would attract a starting point of between 20 and 23 years’ imprisonment.  She combined the quantity of heroin narcotic in both charges, which totalled 607.41 grammes, and for this quantity then took an overall starting point of 20 years.  She said that although the applicant had a bad criminal record, she would not enhance the starting point as his early plea of guilty and his attempt to assist the authorities indicated “a certain amount of remorse.”[3]  She then awarded him a full one-third discount to reflect his remorse and timely pleas of guilty. 

13.  The final sentences that the judge imposed were 4 years’ imprisonment for Charge 1 and 13 years and 4 months’ imprisonment for Charge 2.  She ordered that both sentences should run concurrently with each other.

The applicant’s grounds of appeal

14.  When applying for leave to appeal before the Single Judge, the applicant filed a number of documents with the court.  The documents included:

(a)  a 2-page submission attached to his Form XI filed on 21 March 2019.  In that document, he blamed his counsel for failing to discharge his professional duties because he did not ask for a reduction in sentence with regard to the detailed information provided by him to the ICAC;

(b)  a 2-page submission filed on 30 August 2019.  In this document, the applicant again criticized his counsel for usurping the role of the judge and concluding that his information to the ICAC was not useful.  He disagreed, and argued that if his counsel was right, the ICAC would not have interviewed him so many times.  He complained that he was deprived of a fair sentence.  

(c)  a 9-page submission filed on 12 September 2019.  In this document, the applicant repeated grievances that he harboured against his counsel.  He said that his instructing solicitor had taken a different view from his counsel and described the information he provided to the ICAC as “in fact very useful”.  He also gave a detailed account of how he came to commit the present offences.  Whilst admitting that he had “engaged in trafficking in a dangerous drug”, he was aggrieved at being betrayed by someone and as a result of that the police unfairly targeted him and other less culpable drug couriers, but not the masterminds. 

15.  The applicant has not filed any further submissions since his unsuccessful leave application and at the hearing of this renewed application he said he had nothing to add to his written submissions.

The applicant’s assistance to the authorities

16.  The applicant’s assistance to the ICAC and the police has been thoroughly investigated by the respondent.  The respondent assessed the information provided by the applicant and, noting that it had not led to any arrest or prosecution of any person, formed the view that “the information provided was of no practical use to the law enforcement agencies and the highest it can be put is that the applicant had tried to help.”  That assessment was available to the applicant prior to the leave hearing.  In his leave judgment the Single Judge said:

“From the material available to me, I cannot see that the authorities can be criticised for that assessment. And nor can the applicant’s counsel. He did not make the decision that the information was of no practical use: the authorities did.”[4]

The respondent’s submissions

17.  Ms Lily Yip, for the respondent, adopted the written submissions that she had filed for the hearing before the Single Judge.  Those that are relevant to the present application were:

(i)  the judge was lenient in not enhancing the starting point of the applicant’s sentence in view of his appalling criminal record;

(ii)  the applicant’s information and/or assistance to the ICAC and the police was assessed to be of no practical use; and

(iii)  since the information to the ICAC was devoid of practical use, there could be no complaint that the applicant’s counsel was incompetent or unfairly deprived him of a lower sentence.

Discussion

18.  The applicant has not raised any new grounds of appeal.  At the heart of his complaints is a grievance that he has not received any sentencing credit for his assistance to the authorities.  That he provided assistance was recognized and that he was genuine in his efforts to assist was accepted by the judge.  However, his assistance was not, ultimately, of any practical use to the law enforcement agencies whom he sought to assist.  That being so, there was no error by the judge in not reducing her sentence in order to reflect this assistance.  This was also the conclusion reached by the Single Judge in his leave judgment and which conclusion he carefully explained to the applicant in that judgment.  There being no merit in his renewed application for leave to appeal against his sentence, we refused to grant him leave to appeal and we dismissed his appeal.   

Loss of time

19.  Prior to the hearing of his renewed application we reminded the applicant of the power this court possesses, should we find no merit in his renewed application, to direct that part of the time he has spent in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.  This power of the Court of Appeal is contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  It was drawn to the applicant’s attention by the Single Judge in his leave judgment and it is also specifically drawn to the applicant’s attention as a note on the Form XIII which is used to renew an unsuccessful application for leave to appeal.

20.  Despite our warning the applicant persisted in his application.  After refusing his application and dismissing his appeal we asked the applicant why we should not make an order for loss of time.  In reply the applicant said he had nothing to say.  

21.  We noted that the applicant had received a thorough assessment of the value of his assistance from the respondent and that the Single Judge had considered this assessment at the leave stage and could find no fault with it.  Even though no specific discount was given in respect of it, we noted that the judge used it as a reason for not enhancing her starting point in view of his appalling criminal record.  Had she decided to enhance her starting point the amount of the enhancement would have been substantial.  We were in no doubt that, indirectly, the applicant received a significant, and arguably undeserved, sentencing benefit for the useless assistance he provided to the authorities.  In this renewed application the applicantdid not raise any new grounds of appeal but merely repeated the grounds relied on at his leave application.  These grounds were found not to have any merit by the Single Judge in a careful and thorough judgment.  The applicant’s grounds were not improved by repetition before us and we were satisfied that this was an appropriate case in which we should make a direction for two months’ loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221. 

Disposition

22.  For these reasons we refused the applicant’s renewed application, dismissed his appeal against his sentence and directed that two months of the time he has spent in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.