HKSAR v. WONG CHI MING

CACC 31/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 31 OF 2010

(ON APPEAL FROM HCCC NO. 333 OF 2009)

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.  On 14 January 2010, having pleaded guilty in the Magistracy to one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was committed to the Court of First Instance for sentencing.  The drug in question consisted of 1,988.70 grammes of a crystalline solid containing 1,969.14 grammes of methamphetamine hydrochloride, commonly known as 'ice'.  In determining sentence, Deputy High Court Judge A Chan took as his starting point a sentence of 25 years, reducing it by one third in acknowledgement of the applicant's plea of guilty.  The sentence imposed was therefore one of 16 years and 8 months imprisonment.

2.  The applicant, who appears without the benefit of legal representation, now seeks leave to appeal against that sentence.  In so doing, the applicant acknowledges that he has no substantive ground to support the application.  His application therefore is in essence a plea ad misericordiam, a plea for clemency.

3.  The relevant facts are not complex.  In the early morning of 20 February 2009, the applicant went to a hotel in Tsim Sha Tsui where he collected a suitcase.  He then made his way to Hong Kong International Airport, intending to fly to Japan.  At the airport, he was stopped by police and the suitcase was searched.  The ice was found inside the suitcase.  When arrested and cautioned, the applicant said that, as he was in debt, he had tried his luck by agreeing to act as a courier of dangerous drugs.  He co-operated fully with the police, accepting that he was at the time trafficking in the ice found in the suitcase.

4.  In assessing an appropriate starting point, the judge had regard to the sentencing guidelines for trafficking in ice set out in Attorney General v Ching Kwok Hung, unreported, CAAR 15/1990.  He also had regard to previous judgments of this court, more particularly HKSAR v Vhemy Axel-Supardi, unreported, CACC 12/2000, in which a courier coming across the border from the Mainland en route to Indonesia was found in possession of a quantity of ice only just exceeding 2,000 grammes.  In that case, the court held that, bearing in mind that the applicant had involved himself in the international drug trade, that being an aggravating feature, a starting point of "around 24 years" was entirely consistent with the guidelines.

5.  In the present case, the judge took as his initial starting point a sentence of the same duration, namely 24 years, enhancing it by one further year to take account of the fact that the applicant had a previous conviction for unlawful trafficking in a dangerous drug.

6.  The applicant had been sentenced in 1994 to a term of 12 years for that offence.  That the judge chose to enhance the sentence was fully in accordance with established authority.  Most recently, in HKSAR v Abdallah [2009] 2 HKLRD 437, this court confirmed that engaging in trafficking on a previous occasion was an aggravating factor.

7.  As the applicant recognized, therefore, the sentence imposed upon him was neither wrong in principle nor manifestly excessive.

8.  Concerning the enhancement of his sentence to take account of his previous conviction, the applicant pleaded for that one extra year to be set aside.  The applicant spoke of the fact that, after his release from prison in 2001, he had lived an honest and industrious life, working at a steady job, marrying and raising a child.  It was only in 2008, he said, when he lost his job because of the downturn in the economy, that he fell deeply into debt and committed the offence which is the subject of his application.  He had therefore lived an honest life for some seven years or more.  But this history was known to the judge who commented with full justification that the imposition of the earlier sentence, a condign sentence in itself, seemed to have had little deterrent effect on the applicant.

9.  The applicant spoke of his family circumstances, of the fact that he has an aged mother and a daughter who is now only eight years old.  It is however well established that family circumstances, even if they are cause for sympathy, can play virtually no part in mitigation of drug offences: see, for example, R v Hung Mau Sing, unreported, CACC 476/1989 .

10.  The applicant spoke further of the fact that he is now some 57 years of age and that by the time he has completed his sentence he will be "an old man in his seventies".  That in fact is not correct, not if remission for good behaviour is taken into account.  If that remission is earned, the applicant will still be in his 60s when he is released.  Advanced age may be taken into account in pressing cases, not on any actuarial basis, but as an act of mercy.  In the present case, however, at the time when this applicant committed the offence of trafficking he was far from advanced in age, he was in his mid50s.  Nor can it be said that he will be advanced in age when he is released.  In any event, as this Court has observed on previous occasions, if age was to be a good ground for a plea for mercy, it would be an invitation to those who run the international drug trade to recruit those who are old on the basis that, if they are arrested, their sentence will be the lesser for that fact alone.

11.  For the reasons given, this application for leave to appeal against sentence is dismissed.