HKSAR v. TSANG CHI WAH

[English Translation – 英譯本]
CACC 383/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 383 OF 2009

(ON APPEAL FROM DCCC NO. 938 OF 2009)

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J U D G M E N T

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Barnes J (giving the judgment of the Court):

1.  The applicant was charged with one count of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  He pleaded guilty before Deputy District Judge Josiah Lam (as he then was) at the District Court and was sentenced to 28 months’ imprisonment.  He now seeks leave to appeal against his sentence.

Admitted Facts

3.  The facts disclosed that on the material night, a detective police constable posed as a drug buyer and contacted the applicant by phone.  The applicant asked the constable if he wanted “ice” and how much he wanted.  The constable replied that he wanted “two dong”(兩戙).   Later the applicant phoned the constable and told him to proceed to the lift lobby set out in the charge to make a transaction.  The constable and his colleagues went to the lobby to lay ambush.  When the applicant appeared, he gave four packets of “ice” to the constable who in turn gave him $1,200.  At this juncture the other officers who had been laying ambush turned up and arrested the applicant.  Under caution the applicant said he was unemployed and he sold dangerous drugs to make money. The “ice” involved was 1.07 grammes.

Background

4.  The applicant was born in November 1972 and is now aged 37.  He is divorced and was unemployed at the time of the offence.  He had 13 court appearances with a total of 22 convictions, four of which were related to dangerous drugs (one being possession of dangerous drugs and three being trafficking in a dangerous drug).

Sentence

5.  Deputy Judge Lam referred to the sentencing guidelines laid down in Ching Kwok Hung[1] which provide that the tariff for trafficking in up to 10 grammes of “ice” is 3 to 7 years’ imprisonment.  Having considered the facts of the case and the applicant’s previous similar record, Deputy Judge Lam adopted 3 years and 6 months as the starting point.  He gave the applicant a one-third discount and sentenced him to 28 months’ imprisonment.

Grounds of appeal

6.  The ground of appeal put forward by Mr Suen Kam Hee, counsel for the applicant, was that the sentence was manifestly excessive.  He relied on Yeung Kam Chun[2] and Lee Yin Yu [3] to support his arguments, submitting that for the trafficking of small amounts of “ice”, the sentencing judge was not obliged to take a starting point of 3 years.

7.  Mr Suen also submitted that Deputy Judge Lam was wrong in principle to further enhance a sentence that was already manifestly excessive on the basis that the applicant had three similar previous records.   Mr Suen argued that although the court determined in Chan Pui Chi[4] that for a defendant who was a persistent offender, the court was entitled to adopt a slightly higher starting point, that should depend on the gravity of the crime.  The quantity of “ice” involved in the present case was small and did not justify a large upward adjustment of the starting point.

Discussion

8.  In Yeung Kam Chun, one of the offences that the defendant faced was trafficking in 1.59 grammes of “ice”.  The Court of Appeal did not agree with the respondent’s submission about the 3 to 7 years sentencing tariff laid down in Ching Kwok Hung: namely, that 3 years was the minimum starting point.  The Court of Appeal pointed out that for small amounts of “ice”, the judge was not obliged to start with 3 years and it would be within the discretion of the judge to adopt a starting point lower than 3 years in consideration of the actual amount of “ice” involved.

9.  In Lee Yin Yu, one of the offences that the defendant faced was trafficking in 0.51 gramme of “ice”.  The facts of the case showed that she sold the 0.51 gramme of “ice” to a 16-year-old person for $100.  Having considered Ching Kwok Hung, the trial judge sentenced her to 3 years’ imprisonment.  The Court of Appeal referred to Yeung Kam Chun and stated that judges were not bound to adopt a starting point of 3 years.  While the Court of Appeal agreed with the view of the trial judge that the sale of the dangerous drug to a teenager was an aggravating factor which warranted an enhancement of the sentence, it was of the view that the starting point of three years was manifestly excessive and that two years should be adopted as the appropriate starting point.

10.  In the present case, the amount of “ice” that the applicant trafficked in was 1.07 grammes, which was indeed a small amount.  If he were a first offender, the court would not need to take 3 years as the starting point. However, the fact remains that he was a recidivist who had three previous similar convictions, for which he had been sentenced to ten to twelve months’ imprisonment.  Yet he showed no interest in attempts to rehabilitate himself.

11.  In Chan Pui Chi, the Court of Appeal stated that the court was entitled to take a higher starting point for a persistent offender than it would have had for someone of a clear record.  We do not agree that a judge may only do so in serious cases.  The Court of Appeal in Chan Pui Chi’s case cited shoplifting as an example and enunciated that if such an offence was repeated, a heavier sentence was likely to be imposed for repetition.

12.  In view of the facts of this case, the quantity of “ice” involved and the applicant’s persistence in crime, the appropriate starting point should be 3 years.  A starting point of 3 years and 6 months was manifestly excessive.

13.  For the reasons given, we shall grant leave to appeal.  Treating the hearing as the appeal, we allow the appeal to the extent that the 28 months’ imprisonment is set aside and substituted by a sentence of 2 years’ imprisonment.