HKSAR v. LI YAT-OI

CACC 304/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 304 OF 2004 

(ON APPEAL FROM dccc 15 & 377 of 2004)

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Reasons for Judgment

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Hon Yeung JA (giving Reasons for Judgment of the Court):

1.  On 19 May 2005, we dismissed both the application for leave to appeal against conviction out of time and the application for leave to appeal against sentence. We indicated that we would give our reasons in writing and this we now do.

Background Facts

2.  On 17 June 2004, the applicant – Li Yat Oi appeared before Judge Day in the District Court on two charges of trafficking in dangerous drugs.

3.  The 1^st charge involved 14.1 grammes of heroin. The 2^nd charge involved 11.93 grammes of heroin and 135 tablets containing 1.86 grammes of midazolam.

4.  Mr John Pickavant represented the applicant at the hearing, on the instruction of the Director of Legal Aid.

5.  The applicant pleaded guilty to both charges and admitted the consolidated summary of facts relating to the two charges as follows:

“Charge 1 – Trafficking in a dangerous drugs

At around 1635 hours on 3 September 2003, PC 53485 and PC 33441 were on patrol when they saw D (the applicant) acting in a furtive manner outside a public toilet at Gascoigne Road, near the junction of Nathan Road, Yaumatei, Kowloon. D entered the male toilet. PC 53485 and PC 33441 followed D and got into the male toilet.

D kept looking around in the male toilet. Feeling suspicious, PC 53485 and PC 33441 approached D and revealed their police identities. After a preliminary enquiry, PC 53485 conducted a search on D. A total of 30 packets of suspected dangerous drug (which were subsequently confirmed by the Government Chemist to be 30 packets containing 18.85 grammes of mixture containing 14.10 grammes of heroin hydrochloride) were found hidden in D’s underpants. D was arrested. D under caution admitted inter alias that the drug found on him was “white powder”.

Charge 2 – Trafficking in dangerous drugs

At 0440 hours on 24 February 2004, whilst PC 59136 and PC 52085 were on patrol, they spotted D acting suspiciously at Man Ming Lane near the junction of Temple Street, Kowloon. PC 59136 and PC 52085 intercepted D outside 332- 334 Shanghai Street, Yaumatei, Kowloon. PC 59136 and PC 52085 identified themselves to be police officers and conducted enquiry with D. A search was conducted on D and 215 packets of suspected dangerous drug were found inside the front right trousers’ pocket of D. The suspected dangerous drug was later confirmed by the Government Chemist to be 80 packets containing 17 grammes of mixture containing 11.93 grammes of heroin hydrochloride and 135 tablets containing 1.86 grammes of midazolam. D was arrested. D under caution asked for a chance and admitted inter alias possession of the ‘white powder’ and midazolam.

At all material times, D unlawfully trafficked in the dangerous drugs as particularized in Charges 1 and 2 respectively.”

6.  Upon the applicant pleading guilty to the charges and admitting the facts relating thereto, the judge convicted and sentenced him to 4 years’ imprisonment on each of the two charges to run concurrently.

7.  The judge adopted a starting point of 5 years for each of the charges. As the offences were committed six months apart, the judge took the view that the total sentence should be nine years, which exceeded the District Court jurisdiction.

8.  The judge then decided that the applicant should be given a meaningful discount from the seven years’ maximum sentence permitted in the District Court for the guilty pleas, and for other matters appearing on the papers before him.

9.  The judge considered an overall sentence of 4 years’ imprisonment appropriate.

The Applications

10.  On 9 July 2004, the applicant filed his notice of application for leave to appeal against sentence. He said the judge had not followed the guidelines and was wrong in adopting a starting point of nine years.

11.  He also claimed to be confused when the judge mentioned “a further one-third reduction due to other factors relating to sensitive information.”

12.  On 12 August 2004, about two months after the sentence was imposed, the applicant sought an extension of time to file an application for leave to appeal against conviction. There was no explanation for the delay.

13.  His grounds of appeal against conviction set out in his application were:

“When I was in Lai Chi Kok Reception Centre, I was threatened and misled by the Police. They gave me some wrong legal advices in order to seduce me into pleading guilty, such as my sentence could be reduced by one or two years if I plead guilty, and if not, it would be a heavy sentence of more than 5 years or even 10 years and that the sentence would run consecutively.”

14.  At the hearing of his applications before a single judge of the Court of Appeal on 5 November 2004, the applicant indicated that he had evidence to show that the police officers not only had visited him at Lai Chi Kok Remand Centre to force him to plead guilty to the charges, but also had misappropriated money that he was entitled to.

15.  The applicant further accused the Legal Aid Department and Mr Pickavant of not having defended him according to his instructions or properly.

16.  Pursuant to the court’s directions, the applicant, on 7 December 2004, filed an affidavit setting out his complaints against the police officers, the Legal Aid Department and Mr Pickavant.

17.  In response, Ms Keung of the Legal Department, Mr Pickavant, police sergeant 317 Pang Kar-yuen and police constable 47782 Mok Ka-wai filed affirmations/affidavits detailing their dealings with the applicant.

18.  The applicant had also filed another affirmation maintaining his earlier allegations.

19.  We had considered the applicant’s allegations and the responses made to such allegations set out in the relevant affirmations/affidavits. We had also listened carefully to his submission in court. The applicant gave lengthy explanations and answered a series of detailed questions we put to him.

20.  In the light of his answers and the facts before us, we were of the view that the applicant’s allegations were inherently not credible and we rejected his allegations.

21.  In any event, we were not persuaded that the applicant’s allegations had anything to do the conviction that had been entered against him.

22.  He pleaded guilty to the charges and had admitted the facts relating thereto. He had never denied those facts.

23.  The applicant’s explanation, which we did not accept, could not afford him any defence to the charges.

24.  The delayed application for extension of time to appeal against conviction was unsupported by any valid ground. We therefore dismissed it.

Sentence

25.  The applicant had 45 previous convictions, mostly drug related or involving acts of dishonesty.

26.  Over a period of about six months, he committed two separate offences of trafficking in dangerous drugs, involving on both occasions a quantity of more than 10 grammes of heroin.

27.  The second offence, involving an additional 135 tablets of midazolam, was committed when the applicant was on bail in respect of the first one.

28.  Applying the guideline in Lau Tak Ming [1990] 2 HKLR 370, the five-year starting point adopted by the judge for each of the two charges was quite lenient.

29.  Further, as the two offences were committed on different occasions, six months apart and one of them was committed when the applicant was on bail in respect of the other, a major part at least of the sentences must be served consecutively.

30.  As we had already explained, the judge was constrained by the sentencing jurisdiction of the District Court and took a global starting point of seven years’ imprisonment. There was a plea of guilty as well as other mitigating factors which were drawn to the judge’s attention. We see no justification whatsoever for interfering with the sentences imposed.

31.  We therefore also dismissed the application for leave to appeal against sentence.