CACC 173/2020
[2021] HKCA 876
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 173 OF 2020
(ON APPEAL FROM HCCC NO 152 OF 2020)
_______________
HKSAR
Respondent
v
FONG YAU HEUNG
Applicant
_______________
Before: Hon Zervos JA in Court
Date of Hearing: 17 June 2021
Date of Judgment: 17 June 2021
________________
J U D G M E N T
________________
Introduction
1. On 30 September 2020, following her pleas of guilty to offences of trafficking in a dangerous drug, namely a total of 18.66 grammes of methamphetamine hydrochloride (commonly known as “Ice”), together with an unquantified amount of methamphetamine[1] [2]
2. The applicant now applies for leave to appeal against her sentence.
The facts
3. The facts outlined to the judge and admitted by the applicant were as follows. On 20 July 2013, the applicant entered Hong Kong from mainland China and proceeded through the customs arrival hall at Lok Ma Chau. She was checked for customs clearance. Inside a brown handbag she was carrying, Customs officers found a mobile phone pouch, a black wallet and a plastic container. A search of these items uncovered nine transparent re-sealable plastic bags each containing dangerous drugs. A body search was then conducted on the applicant, and another transparent re-sealable plastic bag, containing a dangerous drug, was found inside the right sock she was wearing.
4. The dangerous drugs found were later examined and certified to be respectively:
(1) 0.36 gramme of crystalline solid containing 0.35 gramme of methamphetamine hydrochloride;
(2) 9.3 grammes of crystalline solid containing 9.09 grammes of methamphetamine hydrochloride;
(3) 0.07 gramme of methamphetamine hydrochloride;
(4) 0.09 gramme of a powder containing methamphetamine;
(5) traces of a powder containing methamphetamine;
(6) 0.15 gramme of a powder containing 0.08 gramme of methamphetamine hydrochloride;
(7) 0.3 gramme of a powder containing 0.04 gramme of methamphetamine hydrochloride;
(8) 0.06 gramme of methamphetamine hydrochloride;
(9) methamphetamine (unquantified);
(10) 8.78 grammes of crystalline solid containing 8.56 grammes of methamphetamine hydrochloride;[3]
(11) 0.42 gramme of a powder containing 0.41 gramme of methamphetamine hydrochloride.[4]
5. The street value of the drugs at the time of the offence was about $13,000.
6. The applicant was arrested and cautioned. She said that the drugs found were Ice and “magu”, and that items (1) and (11) were for her own consumption, and she made the same statement later in a video recorded interview.
7. The applicant was formally charged and was initially remanded in custody. She applied for and was granted bail in the High Court on 9 August 2013. She then absconded and failed to attend a hearing on 16 September 2013 (the subject matter of Count 2).
8. About six years later, on 17 June 2019, the applicant surrendered to the police. Under caution, she said she absconded because her children were young and she wanted to care for them. During this period, she remained in Hong Kong and worked to support her family. She decided to surrender to the authorities because her children had grown up, and she knew what she had done was wrong.
Mitigation
9. At the time of sentence, the applicant was 47 years old. She and her former husband had just divorced and she lost custody of her two children, who were 11 and 5 years at the time, a son and a daughter respectively. Counsel on her behalf submitted that she resorted to drugs as a means of comfort and solace. She had no previous criminal record. Relying on a positive urine test conducted shortly after her arrest and her statements under caution, it was submitted that part of the drugs were for her own consumption, and that she would have shared the rest with her friends in a social setting.
10. As for Count 2, it was submitted that she absconded because she was suffering with depression and acted out of panic and fear. Even though she lost custody of her children, she wanted to help raise them. During this time, she was working in Hong Kong and actively supporting her children. In about 2017, her former husband suffered a stroke and as a result he was paralysed down one side and confined to a wheelchair. She also cared for him.
11. It was explained that the applicant had resorted to drugs because of her marital breakup and the loss of the custody of her children. Later, she was determined to put that period of her life behind her and look after her children.
12. Letters of mitigation were submitted by the applicant, her former husband and son. Her son is now at university and her daughter in high school.
Reasons for sentence
13. The offence under Count 1 was committed at a time when the guidelines laid down in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125 were applicable, where a starting point from 7 to 10 years was suggested for 10 to 70 grammes of Ice. Having considered defence counsel’s submissions and the letters in mitigation, the judge adopted a starting point of 7 years for the total of 18.66 grammes of Ice narcotic. As the applicant brought the drugs across the border into Hong Kong, she enhanced the starting point by 6 months for the international element.
14. As items 1 and 11 were for the applicant’s own consumption, which amounted to 0.76 gramme from a total of 18.66 grammes of Ice seized, the judge held that the evidence did not allow a finding that a substantial amount of the drugs were for self-consumption. Nevertheless, referring to HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, the judge discounted 6 months from the notional starting point of 7 years and 6 months’ imprisonment.
15. In view of the delay of 6 years in entering her plea because she had absconded, the judge allowed a 25% discount on Count 1, relying on HKSAR v Lam Chi Kwan [2019] HKCA 538 . She passed a sentence on Count 1 of 5 years and 3 months’ imprisonment.
16. As for Count 2, the judge adopted a starting point of 6 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 4 months’ imprisonment, and ordered that the sentence run consecutively with the sentence on Count 1.
17. The total sentence imposed on the applicant was 5 years and 7 months’ imprisonment.
The grounds of appeal
18. The applicant, by her letters to the Court dated 6 and 21 December 2020, put forward the following grounds of appeal, which can be summarised as follows:
(1) she complained that she was not given a one third discount on Count 1. By her calculation, the starting point was 7 years’ imprisonment on Count 1 and 6 months’ imprisonment on Count 2. She submitted that after a one third discount the sentence should have been 5 years’ imprisonment.
(2) She also complained that her counsel did not mitigate on the basis that (i) part of the drugs were for self-consumption; (ii) she had changed her lifestyle as reflected in the mitigation letters; and (iii) she voluntary surrendered to the authorities.
The respondent’s submission
19. Ms Phenix Tse, for the respondent, submits that on a strict arithmetic calculation based on the tariffs in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, 18.66 grammes of Ice would attract a starting point of 7 years and 5 months’ imprisonment. She points out that the judge had therefore been generous in adopting a starting point of 7 years’ imprisonment. She further notes that enhancing the starting point by 6 months for the cross border element was consistent with HKSAR v Chung Ping Kun [2014] 6 HKC 106, where an enhancement of 6 months for up to 250 grammes of drugs was suggested for cases involving less than 1,000 grammes.
20. Ms Tse submits that there was extensive discussion between the judge and defence counsel on a discount for self-consumption. The judge was correct that there was no evidential basis to find that a substantial amount of the drugs was for the applicant’s own consumption. Referring to HKSAR v Choi Chun Wo [2018] 5 HKLRD 717,[5]
21. It is submitted that the applicant was only entitled to a discount between 20% and 25% for her plea of guilty when it was delayed by her having absconded, relying on HKSAR v Lam Chi Kwan , [2019] HKCA 538 .[6]
22. As for the applicant’s voluntary surrender to the police, Ms Tse submitted that this did not constitute a mitigating factor, as offenders should not be encouraged to abscond and hope for a reduction in sentence, referring to HKSAR v Chan Tai Wai David , unrep., CACC 7/2006, 12 July 2006, at [22].[7]
Discussion
23. Whilst I appreciate the applicant has seriously offended by absconding, she has to her credit voluntarily surrendered to the authorities, fully acknowledging her previous wrongdoing. She also, during the period she was a wanted person, turned a new leaf and was a responsible and caring parent. It would appear that her drug addiction at the time, which is not in dispute, was brought about by her marital discord and the loss of the custody of her children. When her ex-husband suffered a stroke, she took on the responsibility of caring for him as well as the children.
24. The issue as to the level of entitlement to a discount for the applicant’s voluntary surrender and plea of guilty has been addressed in previous decisions of this Court. On the issue as to the voluntary surrender to the authorities, a useful overview of the relevant principles is set out in Sentencing in Hong Kong, 9th Edition, at [30-376] to [30-384]. As noted, the voluntary surrender to the authorities by a person who is wanted is in the interests of justice but the extent of its mitigating effect will be a contextual question. It seems to me that this factor will have more relevance to the sentence to be imposed for the offence of failing to surrender to custody without reasonable cause. I have considered whether the applicant has a reasonably arguable ground on this point but given the generous approach taken by the judge in respect of the starting point that she adopted on Count 1 and the discount for self-consumption, it would have little or no bearing on the ultimate sentence the applicant should serve. On the issue of the discount given to the applicant for her plea of guilty, the judge followed HKSAR v Lo Kam Fat [2016] 2 HKLRD 308, where it was held that the usual range of discount afforded to a defendant who has absconded is between 20% to 25%, depending on the circumstances of the particular case. The judge therefore gave the applicant an appropriate discount of 25%.
25. Accordingly, I refuse the applicant leave to appeal against her sentence on the above grounds.
26. The last matter that I wish to mention concerns the enhancement for the so-called “international element”. I think the time has come to consider the appropriateness of this enhancement in the sense of the nature of the aggravation to the offending that it seeks to address in the form of extra punishment. It is relevant to bear in mind that included in the definition of “trafficking” in relation to a dangerous drug is “importing into Hong Kong”.[8]
27. In the present case, the applicant received an enhancement of 6 months’ imprisonment for the fact that she brought drugs across the border into Hong Kong. Built into the trafficking alleged against the applicant was that she was importing the drugs into Hong Kong, so it begs the question whether that was already reflected in the gravity of the offence for which a starting point had been adopted, and whether it was fair to enhance her sentence for something that had already been taken into account. It cannot be said that given the quantity of drugs involved and the nature and circumstances in which they were brought into Hong Kong across the border by the applicant that she was part of an international drug syndicate.
28. This brings me to the next question as to what we actually mean by an “international element” as an aggravating factor to the offence of trafficking in a dangerous drug. See HKSAR v SK Wasim [2020] 2 HKLRD 1139, at [29] –[40]. It is important that this question is addressed in order to guard against the routine and broad application of an “international element” when sentencing an offender for drug trafficking.
Conclusion
29. It follows from what I have said on the “international element” issue, I am prepared to grant the applicant leave to appeal against her sentence and in order for her to appropriately argue the point before the Court of Appeal I grant her an Appeal Aid Certificate.
30. In respect of the grounds that I have refused leave, the applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also informed of the consequences of doing so, which may include a direction of any loss of time spent in custody pending her appeal, if the court were to come to the view that there was no justification for the renewal of her application.
(Kevin Zervos)
Justice of Appeal
Ms Phenix Tse, SPP, of the Department of Justice, for the respondent
The applicant appears in person
[1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
[2] Contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.
[3] This item was contained in a transparent re-sealable plastic bag, which was itself contained in another transparent re-sealable plastic bag, together with items 8 and 9.
[4] This item was found in the right sock of the applicant.
[5] At [28], [29] and [37].
[6] At [24].
[7] At [20].
[8] Section 2 of the Dangerous Drugs Ordinance, Cap 134.