HKSAR v. ABDOU ISSAKA

CACC 142/2019

[2020] HKCA 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 142 OF 2019

(ON APPEAL FROM DCCC NO 1018 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant pleaded guilty to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The drugs involved were 26.30 grammes of a crystalline solid containing 1.83 grammes of methamphetamine and 497 tablets and one tablet fragment containing 46.59 grammes of chloroethcathinone.  On 17 April 2019, he was sentenced by Deputy District Judge K H Cheang to 4 years and 6 months’ imprisonment.

2.  On 26 April 2019, the applicant filed a notice of application for leave to appeal against sentence.

3.  Having heard the submission of the applicant and the respondent, the application for leave to appeal against sentence was refused and these are the reasons.

The facts

4.  At around 5:20 pm on 26 February 2018, the applicant was intercepted outside a room in a flat in Chungking Mansions. Upon entry into the room, the drugs which were the subject matter of the present charge were found inside a plastic box on top of a bedside cabinet. The estimated retail value of the methamphetamine was HKD13,518.00 and for the chloroethcathinone was HKD38,346.00.

The judge’s sentencing approach

5.  In sentencing, the judge considered the applicant’s background and the mitigation advanced on his behalf.  He accepted that chloroethcathinone was similar in nature to MDMA and the sentencing guidelines set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 applied.  In respect of the “ice”, the tariff in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 was relevant.  He then adopted the “combined approach”, and then used the various tests laid down in HKSAR v Chan Yuk Leong, CACC 318/2013 to countercheck.  He considered an overall starting point of 6 years and 3 months’ imprisonment appropriate, and enhanced it by 6 months to reflect the aggravating feature of the applicant’s was a Form 8 recognizance holder status.  The judge then gave him full one‑third discount for his plea of guilty and sentenced him to 4 years and 6 months’ imprisonment.

Application for leave to appeal against sentence

6.  The sole ground advanced by the applicant is that the sentence was too high.  At the hearing, he presented a letter which was written pursuant to his instructions by an inmate to elaborate on his ground.  Apart from complaining about the severity of the sentence, it would seem that he also claimed that the drugs had nothing to do with him and he was framed by the police.  Yet he confirmed at the hearing that he had no intention to apply to reverse his plea or apply for leave to appeal against conviction.

The submission of the respondent

7.  In her written submissions for the respondent, Miss Audrey Parwani, SPP, submitted that the judge adopted the correct approach in sentencing: he applied the correct sentencing tariff to the two types of drugs and tested against the three different tests before deciding to adopt the overall starting point as he did.  The level of enhancement of 6 months could not in any way be criticized as excessive.  It was submitted that the applicant should have counted himself lucky that there was no further enhancement on account of the two different types of drugs that was trafficked in.  The sentence after plea was an entire appropriately one.  Miss Parwani also replied that what he claimed in his letter was totally irrelevant to his appeal against sentence.

Discussion

8.  The applicant confirmed at the hearing that he was only applying for leave to appeal against sentence, so what he claimed in the letter to the court about the lack of knowledge of the drugs or frame up by the police had nothing to do with his appeal against sentence.

9.  Sentencing in trafficking in dangerous drugs case is largely based on the weight of the narcotics involved.  Different sentencing tariffs apply to different drugs.  In the present case, two types of drugs were involved.  It was agreed that the tariff in respect of ecstasy applies to chloroethcathinone.  The judge was correct in adopting the combination approach and counterchecked against the various tests as laid down in the case of Chan Yuk Leong.

10.  Having been assisted by the respondent in the calculations against the tests, I am satisfied that the starting point of 6 years 3 months adopted was within bounds of the tests, and the enhancement for his Form 8 holder status was entirely appropriate.

11.  I am satisfied that there is no merits in the ground of appeal.