HKSAR v. MA KAM SHUI, WATER

CACC15/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 15 OF 2010

(ON APPEAL FROM HCCC 377 OF 2009)

------------------------------------

-------------------------

JUDGMENT

-------------------------

Lunn J (giving the Judgment of the Court):

1.  The applicant seeks leave to appeal against an order that a sentence of 6 years and 8 months’ imprisonment imposed upon him by Mackintosh J on 6 January 2010, following upon his plea of guilty in the Magistracy to a single charge of unlawful trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, be served consecutively to a sentence of 12 months’ imprisonment imposed upon him on 29 June 2009 in Kowloon City Magistracy for the offence of dealing with property knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence, contrary to section 25 of the Organized and Serious Crimes Ordinance.

The charge

2.  The charge alleged that the applicant had unlawfully trafficked in 66.68 grammes of a crystalline solid containing 59.24 grammes of methamphetamine hydrochloride, commonly called “ice”, at the Lok Ma Chau Control Point in the early hours of the morning of 28 June 2009.  The “ice” was found in four plastic bags concealed in the applicant’s underwear.  After having been arrested and cautioned for the offence of unlawful trafficking in a dangerous drug the applicant admitted that he knew the substance in the plastic bags to be “ice”.  In a written record of interview conducted of him by police officers, the applicant admitted that he had been given the dangerous drugs in Shenzhen and that, for the promise of payment of $1,000, he agreed to carry the dangerous drugs into Hong Kong from Shenzhen.

The judge’s reasons for sentence

3.  In his reasons for sentence, the judge stated that, having regard to the guidelines for sentencing in cases of unlawful trafficking in “ice” articulated in the Attorney-General v Ching Kwok Hung, he took a starting point of 9½ years’ imprisonment, to which he added 6 months’ imprisonment for the aggravating factor of importation of the dangerous drugs into Hong Kong.  From the resulting starting point of a total of 10 years’ imprisonment, he afforded the applicant a discount of one third to reflect his plea of guilty.  Accordingly, the judge imposed a sentence of 6 years and 8 months’ imprisonment in respect of the charge of unlawfully trafficking in a dangerous drug.

4.  The judge accepted that in his personal life the applicant had endured “difficult circumstances”.  Nevertheless, he determined that:

“… they cannot in the circumstances amount to mitigation so as to allow for a further reduction of the sentence beyond the one third to which I have already deferred and which is sometimes called the ‘high water mark’ of the discount after a plea of guilty.”

5.  Of the offence for which the applicant was already serving a term of imprisonment of 12 months, which offence the judge described as “money laundering”, the judge said:

“That was an entirely separate matter to the present offence. It arose from your involvement in the cashing of a cheque for $40,000 in April 2008 [there the judge was wrong as to the date, it is 2009] and you were arrested in respect of that offence at the time of your arrest in respect of the present offence.”

6.  Having regard to the totality of sentence, the judge determined that the sentence of 6 years and 8 months’ imprisonment “…  must be wholly consecutive to the term you are presently serving”.

Grounds of appeal against sentence

7.  It was submitted on behalf of the applicant by Mr H.Y. Wong that the judge erred in determining that, having regard to the totality of sentence to be imposed on the applicant, it was appropriate to order that the whole of the sentence of 6 years and 8 months’ imprisonment be served consecutively to the term of imprisonment that the applicant was then serving, namely 12 months’ imprisonment.  In particular, that the judge had failed to stipulate the starting point he would have regarded as appropriate for the “money laundering” offence if he had been passing sentence in respect of that offence at the same time as imposing sentence in respect of the offence of unlawful trafficking in the dangerous drug. (See the observations of this court R v Tsang Chiu Man [1996] 3 HKC 94 at 96 H-I.)

8.  Secondly, it was submitted that the sentence of 10 years’ imprisonment adopted by the judge was the maximum sentence to be imposed within the band of unlawful trafficking in 10 grammes to 70 grammes of “ice”.  Such a starting point, it was submitted, was manifestly excessive having regard to the applicant’s criminal record and strong mitigating factors.

The applicant’s criminal record

9.  The applicant was born in Hong Kong on 1 August 1965.  In January 1985, he was ordered to be detained in a detention centre for offences of impersonating a public officer, claiming to be a member of a triad society and theft.  In September 2000, he was sentenced to 8 months’ imprisonment for dealing with property, knowing or believing it to represent the proceeds of an indictable offence.  In February 2003, he was sentenced to a total of 16 months’ imprisonment for 20 offences of theft.

The submissions of the respondent

10.  On behalf of the respondent Ms Anna Lai submitted in her written submission that having regard to the aggravating factor of importation, the judge was entitled to identify a starting point of 10 years’ imprisonment in respect of the charge of unlawful trafficking in a dangerous drug.  In respect of the aggravating factor of importation into Hong Kong she drew the court’s attention to the observations of this court, differently constituted, in R v Lee Chiu Pang [1995] 2 HKC 523 at page 525G.

11.  Ms Lai provided the court with the “Brief Facts” accepted by the applicant as supporting his plea of guilty to a single charge of dealing in April 2009 with monies knowing or having reasonable grounds to believe them to be the proceeds of an indictable offence.  On that date, a “fraudulent payment of $40,000” had been made in respect of a cheque drawn on an account operated by Kowloon City Magistracy, on which cheque the original descriptions of the payer, the cheque and account number had been altered from the original.  The applicant accepted that he had agreed with a person to cash that cheque on the basis that he would share in the proceeds.  He had arranged for another person to actually cash the cheque, giving him $10,000 of the $40,000 as a reward.  The applicant retained $10,000 and accounted to the former person for the balance of $20,000.

A consideration of the submissions

12.  As the judge stated, the starting point for sentence that he adopted in respect of the unlawful trafficking in the dangerous drugs of 10 years’ imprisonment reflected not only the appropriate sentence of 9½ years’ imprisonment, having regard to the amount of the dangerous drugs, but also an additional sentence of 6 months’ imprisonment in respect of the aggravating factor of importation of the dangerous drugs into Hong Kong.  As has been often stated by this court, enhancement of sentence to reflect the aggravating factor of importation is in addition to that stipulated in the guidelines given by this court for unlawful trafficking in the particular dangerous drug.  The judge’s identification of a starting point of 10 years’ imprisonment was entirely appropriate.

The totality of sentence

13.  Although the judge did not refer to the matter specifically in his reasons for sentence, during mitigation he had been informed that the sentence of 12 months’ imprisonment imposed on the applicant in Kowloon City Magistracy on 29 June 2009 in respect of the “money-laundering” offence followed upon his plea of guilty.  Accordingly, clearly it was to be inferred that that the starting point taken for sentence had been 18 months’ imprisonment.  No issue is taken on behalf of the applicant that such a starting point was inappropriate.

14.  As noted earlier, the applicant had been sentenced to 8 months’ imprisonment in September 2000 for another offence of dealing with property knowing or having reasonable grounds to believe it represented the proceeds of an indictable offence.  Also, in 2003 he had been sentenced to 16 months’ imprisonment for multiple offences of theft.

15.  Clearly, the judge was correct to categorise the “money-laundering” offence as being “… an entirely separate matter to the present offence”.  In our judgment, in having regard to the appropriate totality of sentence to be imposed upon the applicant the judge was entitled to conclude that the sentence of 6 years and 8 months’ imprisonment be imposed consecutively to the sentence of imprisonment then being served by the applicant for the entirely separate and earlier offence of “money-laundering”.

Conclusion

16.  Accordingly, in the result the application for leave to appeal against sentence is dismissed.