HKSAR v. YIP KWOK SING

CACC 143/2019

[2019] HKCA 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 143 OF 2019

(ON APPEAL FROM HCCC 289 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant faced one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and one count of possession of a dangerous drugs, contrary to section 8(1)(a) and (2) of the same ordinance (Charge 2). The trafficking charge involved 1,390 grammes of a mixture containing 1,115 grammes of heroin hydrochloride. The possession charge involved 0.57 gramme of a crystalline solid containing 0.56 gramme of methamphetamine hydrochloride (“Ice”).

2.  Following his plea of guilty in the Magistracy and his Committal for Sentence to the Court of First Instance, the applicant appeared before M Poon J (“the judge”) for sentence. In respect of Charge 1, he was sentenced to 16 years and 4 months’ imprisonment and in respect of Charge 2, he was sentenced to 8 months’ imprisonment. The judge ordered the sentence for Charge 2 to run concurrently with that of Charge 1. 

3.  He now applies for leave to appeal against his sentence on the ground that it was manifestly excessive.

4.  At the hearing of the application I refused it and said I would hand down my reasons for doing so in due course. These are my reasons. 

The charges

5.  In the evening of 11 December 2017, the applicant was intercepted by Customs Officers at the Customs Arrival Hall of the Lo Wu Control Point, New Territories and a search was conducted of his person. The 4 packets of dangerous drugs that are the subject of Charge 1 were found under his clothes at his lower back held in place by three elastic bands. The dangerous drugs had an estimated value of HK$1,120,340.

6.  The applicant was taken back to his home in Tseung Kwan O for a house search. There, inside his bedroom, the dangerous drug the subject of Charge 2 was found. It had an estimated value of HK$257.64.   

The judge’s Reasons for Sentence

7.  After referring to the circumstances surrounding facts of the case, the judge set out briefly the applicant’s background. She noted that he had 39 convictions of various types of dishonesty and drug-related offences, including three trafficking offences in the past. 

8.  In respect of Charge 1, the judge directed herself in accordance with HKSAR v Abdallah^[1] and adopted 22½ years as her starting point which she then enhanced by 2 years for the cross-border factor. After allowing the applicant a one-third discount for his timely plea, she sentenced him to 16 years and 4 months’ imprisonment.

9.  In respect of Charge 2, the judge adopted 12 months’ imprisonment as her starting point which she then discounted by one-third discount to reach a final sentence of 8 months’ imprisonment. She ordered this sentence to run concurrently with the sentence she imposed on Charge 1.

The applicant’s ground of appeal

10.  The applicant was unrepresented on the leave application. In his Form XI, he complained about his sentence being manifestly excessive. No perfected grounds of appeal or any written submission were filed in support of his application.

11.  At the hearing of the application the applicant referred the court to a sentencing decision of the Court of First Instance in HCCC 305/2016 where a lower amount of enhancement, for a greater quantity of dangerous drug, in that case Ice, had been imposed for the cross-border factor. He also relied on other matters personal to him.

Discussion

12.  The judge correctly directed herself on the law and her starting point of 22½ years cannot be criticised. Likewise, the 2 years’ enhancement for the cross-border element is also correct. Indeed, both the starting point and the enhancement were suggested by the applicant’s counsel as appropriate when he made his address in mitigation.

13.  The case of HCCC 305/2016 does not assist him. The judge in that case acknowledged that his lenient enhancement may well be over generous. The Court of Appeal has said on many occasions that what is done in other cases does not mean that a different sentence imposed on a different defendant in respect of a different occasion of trafficking is necessarily wrong.

14.  There is no reasonably arguable basis for asserting that the sentence imposed on the applicant is manifestly excessive.

15.  I should add that the applicant can consider himself fortunate that the starting point for Charge 1 was not further enhanced for his criminal record. His past involvement in criminal activities, especially drug trafficking, demonstrates a need for additional deterrence and for the community to be protected from him.

16.  The sentence for Charge 2 does not impact upon the overall sentence as it was ordered to run concurrently with the sentence of Charge 1.

17.  At the hearing of the application I had regard to the personal matters relied on by the applicant and explained to him why they would not amount to a reasonably arguable ground of appeal that his sentence was excessive. 

18.  In the circumstances, I can see no reasonably arguable ground of appeal against sentence, and the application must be refused.

Disposition

19.  For these reasons I refused the applicant leave to appeal his sentence. I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.