HKSAR v. GURUNG MOHIT

CACC 15/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 15 OF 2015

(ON APPEAL FROM HCCC NO. 413 OF 2014)

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JUDGMENT
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1.  On 19 September 2014, the applicant pleaded guilty at the Eastern Magistracy to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for which he was committed to the High Court for sentence. He duly appeared before A Pang J on 18 December 2014 and was sentenced to 6 years’ imprisonment. He now seeks leave to appeal against his sentence.

2.  The facts, which the applicant admitted, were as follows.  On 1 April 2014, the police intercepted the applicant at North Point MTR Station and found in his possession 4 plastic bags containing what was later found to be 53.76 grammes of a crystalline solid containing 51.71 grammes of methamphetamine hydrochloride, a dangerous drug commonly known as “Ice”.  The estimated street value of the dangerous drugs seized was $21,880.

3.  The applicant, who was 24 at the time of his sentence, had received education up to secondary level and had come to live in Hong Kong in 2006.  He had worked as a delivery and casual construction worker.  He had two children, who at the time of sentence were 9 and 18 months of age by his girlfriend who had since left him.  As a result, the children were in the care of Po Leung Kuk.

4.  The applicant had eight previous convictions, three of which concerned the possession of dangerous drugs and one for the possession of Part 1 poison. It was said in mitigation that he had been a drug addict since 2009 and had committed the present offence for a reward of $1,000.

5.  In sentencing, the judge observed that the offence committed by the applicant pre-dated the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, so that the new guidelines were not applicable to his case.  The judge relied on the cases of Attorney-General v Ching Kwok-hung [1991] 2 HKLR 125 and HKSAR v Capitania (unrep., CACC 28/2004), noting that trafficking in 10 grammes to 70 grammes of “Ice” would warrant a sentence between 7 and 10 years’ imprisonment.  For the amount of “Ice” involved in this case, namely 51.71 grammes of methamphetamine hydrochloride, the judge adopted a starting point of 9 years’ imprisonment.  Giving the applicant the usual one-third discount for his guilty plea, the judge sentenced him to 6 years’ imprisonment.

Grounds of appeal against sentence

6.  In his notice of application for leave to appeal against sentence filed on 14 January 2015, the applicant simply complained that his sentence was too long. Before me today, he has maintained that 5 grammes of the total quantity of mixture were for his own consumption, even though he acknowledges that such a claim was not put before the sentencing judge in mitigation by his counsel.

Respondent’s submissions

7.  Mr Lui, for the respondent, submitted that the judge had correctly identified the applicable sentencing range as laid down by the Court of Appeal in Ching Kwok-hung, and had properly adopted 9 years’ imprisonment as the starting point for trafficking in 51.71 grammes of “Ice”. Further, the one-third discount for plea was correct.  As for the suggestion that 5 grammes of the mixture was intended for the applicant’s own consumption, it would not have made any difference to the sentence, even if the claim were true.

Consideration

8.  I agree with Mr Lui.  On a strictly mathematical basis of computing sentence by reference to the guidelines in Ching Kwok-hung, a quantity of about 50 grammes of methamphetamine hydrochloride narcotic would have merited a starting point of 9 years’ imprisonment.  Given the quantity in which the applicant was trafficking, with or without the 5 grammes the applicant now claims were for his own consumption, the starting point adopted by the judge would appear to have been unimpeachable.  There was no mitigation beyond the plea of guilty, nor was the applicant of good character.

9.  In the circumstances, leave to appeal against sentence is refused.  The applicant is duly advised of his right to renew his application for leave to appeal to the Court of Appeal and the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court of Appeal comes to the conclusion that there was no justification for the renewal of the application.