HKSAR v. LAU KAM HUNG

CACC 28/2025, [2025] HKCA 943

On Appeal From [2025] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 28 OF 2025

(ON APPEAL FROM HCCC NO 114 OF 2024)

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J U D G M E N T

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1.  Having pleaded not guilty before a magistrate at his committal on 11 April 2024 to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant later indicated that he would plead guilty shortly after trial dates were fixed in the High Court. On 22 January 2025, he was sentenced by D Yau J (“the judge”) to 6 years and 1 month’s imprisonment.

2.  By his Form XI Notice filed on 13 February 2025, the applicant now seeks leave to appeal against his sentence.

The admitted facts

3.  In the evening of 2 April 2022, during an anti-narcotics operation, the police took the opportunity to enter Room 2110, Hoi Yan House[1], Hoi Fu Court, Mong Kok (“the Flat”) when Ms Hon Yin-hiu opened the door for two visitors. The applicant, being the Flat’s registered tenant, was lying on a bed inside the premises[2].

4.  Six re-sealable plastic bags containing 8.49 grammes of methamphetamine hydrochloride, commonly known as “Ice”, were found on Ms Hon after a body search[3].

5.  On a table in the Flat, the police found a metal box with the following contents[4]:

(i)  4 re-sealable plastic bags containing totally 17.0 grammes of “Ice”;

(ii)  An electronic scale;

(iii)  Multiple re-sealable plastic bags contained in a larger re-sealable plastic bag;

(iv)  2 glass bottles each attached with a straw, resembling pipes for smoking drugs.

6.  Besides these items, 3 plastic bags containing 14.4 grammes of herbal cannabis were also found inside a pouch on a bedside desk[5].

7.  Upon arrest and under caution, the applicant said that the “Ice” and cannabis were for his own consumption and occasional sharing with friends. In a cautioned video recorded interview, Ms Hon claimed that the “Ice” found on her had been given to her for free by the applicant, whom she had known for about a month[6].

8.  The applicant was charged with trafficking in the 17.0 grammes of “Ice” and 14.4 grammes of herbal cannabis found inside the Flat[7], the street value of which was HK$9,895.60 and HK$2,621 respectively. Notwithstanding his cautioned statement upon arrest, the applicant eventually admitted the charge[8].

Background of the applicant

9.  In mitigation, it was said that the applicant was brought up in a modest family in the mainland. At 21, he came to Hong Kong in pursuit of a better life. However, marginalised and frustrated by society, he descended into a life of crime and bad habits[9]. At the time of sentencing, the applicant was a former drug abuser aged 68, with 20 previous convictions, for which he has served more than 20 years in prison as follows[10]:

Court Appearances	Date of Sentence	Offence	Sentence
1st	3/4/1979	7 counts of theft	3 years’ imprisonment for each count (served concurrently)
		Rape	6 years’ imprisonment (run consecutively to the sentences for thefts)
		Robbery	5 years’ imprisonment (served concurrently to the above)
2nd	21/7/1986	Assault with intent to rob	6 years’ imprisonment
		Indecent assault	5 years’ imprisonment (served concurrently)
		Rape	12 years’ imprisonment (served concurrently)
3rd	14/2/1996	Managing a vice establishment	6 months’ imprisonment suspended for 36 months & fined HK$10,000
4th	18/7/2008	Assault occasioning actual bodily harm	8 months’ imprisonment
		Criminal intimidation	2 months’ imprisonment (served concurrently)
		Assaulting a police officer	4 months’ imprisonment (run consecutively to the sentences above)
		Failing to surrender to custody	12 weeks’ imprisonment (run consecutively to the sentences above)
		Breach of suspended sentence	6 months’ imprisonment (run consecutively to the sentences above)
5th	9/12/2009	Breach of condition of stay	2 months’ imprisonment suspended for 12 months
6th	2/10/2019	Possession of dangerous drugs	18 months’ imprisonment

Reasons for sentence

10.  Acknowledging the applicant’s humble background and the difficulties he had encountered in life, including various health issues, the judge dealt with the major aspect of mitigation put forward on his behalf, namely, the contention that he consumed a significant portion of the drugs himself. The applicant did not give evidence in support of his contention and the judge found the claim to be unsubstantiated, indeed contradicted by the evidence. Accordingly, he declined to give the applicant any reduction in sentence for this factor[11].

11.  The judge then applied the 6-step approach of HKSAR v Herry Jane Yusuph[12], identifying the applicant’s role as a “storekeeper”; and, by arithmetically applying the applicable guidelines, adopted a starting point of 7½ years’ imprisonment for trafficking in 17.0 grammes of “Ice”[13].

12.  The quantity of herbal cannabis was found to be insignificant such that the judge ignored it when calculating the starting point. However, as trafficking in more than one type of drug was an aggravating factor, the judge enhanced the starting point by 1 month[14].

13.  The judge further found the applicant to be a persistent offender, for which he enhanced the sentence by a further 6 months, taking the overall starting point to 8 years and 1 month’s imprisonment[15]. The judge said:

“36. The defendant has a number of convictions for very serious offences. Although this is his first conviction for trafficking in dangerous drugs, and his only other drug related conviction was in 2019 for simple possession, I find that I must place more weight on the need to deter the defendant from committing further offences in the future when sentencing…”

14.  The sole functional mitigating factor was that the applicant had pleaded guilty. However, since he did so about a month after the trial dates were fixed in the High Court, the applicant was given a discount of about 25% for his late plea, in accordance with HKSAR v Ngo Van Nam[16], resulting in a sentence of 6 years and 1 month’s imprisonment, which the judge considered to be in line with the totality principle[17].

The grounds of appeal

15.  The complaint of the applicant is that the judge erred in enhancing the starting point by 6 months’ imprisonment for the applicant’s poor criminal record[18]. Mr Percy, counsel for the applicant, submitted that the lack of similar offences for trafficking in dangerous drugs did not warrant any enhancement[19]. He further contended that the applicant was not shown by his criminal record to be a persistent offender[20]. In this regard, there was no suggestion that the applicant would reoffend within a short period of time. On the contrary, there were long periods, some as long as a decade, when the applicant had not reoffended at all. These intervals demonstrated that his previous sentences had provided an effective deterrent to the applicant[21]. Moreover, many of the particularly serious offences in his criminal record had been committed when he was a much younger man.

16.  Finally, Mr Percy was critical of the judge for failing to warn defence counsel of his intention to enhance the starting point because of the applicant’s criminal record, thus depriving him of an opportunity to provide a relevant response.

The respondent’s submission

17.  Mr Daryanani, for the respondent, opposed the grant of leave. His argument was twofold:

(i)  While there was no previous conviction of trafficking in dangerous drugs, the previous conviction of simple possession could be considered a similar offence to drug trafficking because of the evident latent risk involved.

(ii)  The applicant’s bad criminal record of very serious offences was itself an aggravating factor justifying an enhancement of sentence.  

18.  The respondent made reference to what I had said in HKSAR v Wan Wai Lun[22] at [19], subsequently referred to in Sentencing in Hong Kong (11^th edition) at [14-22][23]:

“19. … there are difficulties in treating previous convictions for simple possession of dangerous drugs as aggravating a sentence for trafficking. Whilst we accept that many defendants sell drugs to feed their own addictions, and the possession of some quantities pose a significant latent risk of being shared with, or falling into the hands of others, the legislature and the courts have nevertheless recognised that the offences of simple possession and trafficking are qualitatively very different offences calling for very different levels of punishment and/or types of sentence. …”

19.  Nevertheless, Mr Daryanani suggested that, where a latent risk was involved, a conviction for simple possession could be considered a similar offence to trafficking in dangerous drugs. He noted that there were similar patterns in the facts of the applicant’s previous District Court case[24], where the applicant was convicted of simple possession. In that case, the applicant was charged with trafficking in dangerous drugs but ultimately convicted of simple possession. The types of the dangerous drugs were similar and the location of the two offences was the same. The sentence of the applicant in that case was enhanced by 9 months for the presence of a latent risk. Mr Daryanani argued that, because of the latent risk present, the line between simple possession of drugs and drug trafficking had become especially fine[25].

20.  In support of his contention that a conviction for simple possession could be treated as a similar offence to trafficking for the purpose of enhancing a sentence, the respondent referred to HKSAR v Chau Hon Kwong[26], where the Court said the sentencing judge was entitled to have regard to the defendant’s previous convictions for trafficking and simple possession, and enhance the sentence accordingly[27].

21.  Secondly, the respondent submitted that even if there was no similar previous conviction, a bad criminal record was an aggravating factor in itself. This had been recognised in Chan Chi Ming v R[28], albeit with an emphasis on the same or similar previous convictions. He also made reference to the English case of R v Woods[29], a case of violent crime where the defendant only had previous convictions for dishonesty. Lord Parker CJ said, in giving the judgment of the English Court, that there was no rule that only previous convictions of the same type should be considered but consideration would always be given to the fact that the offence was out of character with or was part of the accused’s ordinary criminal activity[30].

22.  Given the applicant’s bad criminal record, Mr Daryanani argued that the judge was entitled to treat the record as an aggravating factor in itself and enhance the sentence accordingly[31].

23.  Finally, the respondent submitted that the enhanced sentence considered by the judge would be appropriate on an arithmetical basis if the applicant had trafficked in about 26 grammes of “Ice”, which represented an increase of about 50% of the quantity seized. This was to be contrasted with the facts of HKSAR v Har Tsz Yui[32], where the trial judge’s enhancement reflected an arithmetical sentence of twice the amount of narcotic actually seized (namely, 20 grammes as against 9.86 grammes), which the Court found disproportionate in the circumstances[33].

Consideration

24.  The applicant’s argument is somewhat technical and overly arithmetic and, accordingly, rather loses sight of the reality of the facts of the case. Those facts showed that, whatever the judge’s conclusions may have been, two people were seen visiting a public housing unit, the door to which was opened by another person, Ms Hon, with the applicant being found on a bed inside. The paraphernalia of the trafficker were found inside the premises, namely two different types of dangerous drugs contained in smaller re-sealable bags of drugs, multiple empty re-sealable plastic bags and an electronic scale. That people would come to the flat to consume or receive drugs was apparent from the fact that the person who opened the door had herself received drugs from the applicant, there were two glass bottles and straws found for the consumption of drugs in the premises and the applicant admitted that he would share drugs with his friends. This was, with respect, a rather more active, albeit on a small scale, centre for the distribution, packaging and consumption of different dangerous drugs than the judge’s somewhat generous classification of the applicant as a mere “storekeeper” depicted.

25.  It should also be remembered that an appellate court, in re-examining the facts of any case and the propriety of a sentence, is not bound to accept the judge’s interpretation of the Summary of Facts and his characterisation of the role and culpability of the defendant, if it disagrees with it.

26.  Since the case of Herry Jane Yusuph, the Court has been encouraging judges and magistrates to avoid the slavish application of guidelines to quantity but, instead, to look to the defendant’s particular role and culpability. In this case, the applicant could not have complained if the judge had considered a starting point higher than 7½ years’ imprisonment, bearing in mind his role and culpability and the fact that two kinds of dangerous drugs were on offer in his premises.

27.  Once one accepts that fact, then the argument about whether there should have been any enhancement for the applicant’s bad criminal record for serious offences (in particular sexual and violent offences), and whether simple possession should be regarded as a previous similar offence to trafficking, becomes rather redundant. However, accepting the argument at face value, the judge was concerned about the need to deter the applicant from committing further serious offences in the future. I cannot see a reasonable argument that the judge should not have been so motivated. It seems a startling proposition that one cannot enhance a persistent offender’s sentence simply because he has not been previously convicted for trafficking in dangerous drugs, when he has two convictions for rape, two for robbery or assault with intent to rob, and others for indecent assault, assault occasioning actual bodily harm, assaulting a police officer, managing a vice establishment, criminal intimidation and multiple convictions for theft; not to mention possession of dangerous drugs.

28.  As this Court has said on a number of occasions, and most recently in HKSAR v Cheung Ka On[34], an appellate court’s focus is more on the ultimate sentence than the route by which that sentence was reached (as noted in the General Editor’s comment on the case[35]).

29.  As for the argument that the judge should have alerted defence counsel to the possibility that he might enhance the applicant’s sentence for his bad criminal record, this is not a reasonably arguable proposition. Any defence counsel should have been alert to the possibility, indeed the likelihood, in this particular case that the court would do so given the applicant’s long list of very serious convictions.

30.  In all the circumstances, I do not consider there are reasonably arguable grounds of appeal against sentence in this case. The application is accordingly refused.