HKSAR v. OH CHUN KIT

[English Translation - 英譯本]
CACC 388/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 388 OF 2011

(ON APPEAL FROM HCCC NO. 115 of 2005)

____________________

J U D G M E N T

Cheung JA (giving the judgment of the Court):

Facts of the case

1.  The applicant pleaded guilty to one count of Trafficking in a Dangerous Drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (‘the Ordinance’), Cap 134, before Deputy High Court Judge M. Poon (as she then was). The dangerous drug in question was 1,444.12 grammes of Methamphetamine Hydrochloride, commonly known as “Ice”. At the time in question, Customs Officer(s) intercepted the applicant at the gate of the departure hall of the Hong Kong International Airport and found on him upon searchthe dangerous drugs in question. Using 21 years as the starting point and reducing it by one third for his plea, Deputy Judge Pooneventually sentenced the applicant to 14 years’ imprisonment.

Application for leave to appeal out of time

2. On 20 September 2011, the applicant asked this court to grant him extension of time to apply for an appeal against his sentence.

3. The factors that the Court will consider in hearing an application for an extension of time are:

1) How long is the delay;

2) Whether the applicant has a reasonable explanation for the delay; and

3) Whether the applicant has sufficient grounds of appeal.

View of the Court

4.  In this case, the application was made more than 6 years out of time, which is a very lengthy period. In 2005 when the applicant pleaded guilty, he was represented and thus he ought to have known his right to appeal. The applicant explained that the reason for his delay was that prior to this, he failed to find a case justifying his appeal. We do not consider this to be a reasonable explanation.

5.  As of the grounds of appeal, Deputy Judge Poon referred to the case R v Darwin Ibrahim, CACC 112/2003 in which 24 years was the starting point. In that case, the Defendant was carrying 1.86 kilogrammes of “Ice” from Shenzhen to overseas via Hong Kong. It was a case of international trafficking.

6.  The applicant cited two cases, namely, R v Chong Vui Leong, CACC 351/2008 and R v Chok King Foh, CACC 351/2008. In the said two cases, Chong Vui Leong and Chok King Foh were respectively the 1^st and 2^nd Defendant of the case. The two were intercepted by Customs officers at the passenger boarding bridge at the Hong Kong International Airport. 1,197.99 grammes of “Ice” was found upon search on the 1^st Defendant and 1,685.51 grammes of “Ice” was found upon search on the 2^nd Defendant. The two pleaded guilty to the charge. Deputy High Court Judge D. Pang (as he then was) took 22 years and 24 years respectively as the starting point of the sentences for two defendants. The two defendants lodged an appeal. The Court of Appeal was of the view that the starting point of the sentences for the two should respectively be 19 years and 3 months and 21 years.

7.  The applicant here pointed out that the quantity of 1,444.12 grammes of “Ice” he trafficked was less than the 1,685.31 (grammes of) “Ice” trafficked by Chok King Foh, but both he and Chok King Foh had the same starting point of 21 years’ imprisonment. He considered that to be unfair to him and thus asked for reduction of sentence.

8.  More than 18 years for trafficking in “Ice” of over 600 grammes was the guideline laid by the Court of Appeal in AG v Ching Kwok Hung [1991] 2 HKLR 125.

9.  It has been said in many cases by the Court of Appeal that the court must take into account the facts of the case when considering sentence, and that defendants in other cases getting a sentence lighter than the applicant’s does not show that the sentence on the applicant was unsafe.

10.  We acknowledge that the length of sentence for trafficking in a dangerous drug is based upon the quantity of dangerous drugs being trafficked. Generally speaking, personal background of the defendant of this kind of cases does not serve as reason for reduction of sentence. The court thus is to see to it that the sentence is consistent with the relevant sentencing guidelines. However, on the other hand, sentencing is not a mechanical operation and the judge has, within the sentencing guideline, discretion in setting an appropriate length.

11.  In HKSAR v an unknown person alias Stojanovic Milka and Skopljak Sara, CACC 110/2010, the defendant was charged with trafficking in 1,484.01 grammes of “Ice”. In that case, the defendant came to Hong Kong from Malaysia by plane. The trial judge took 22 years as the starting point and increased the sentence to 24 years because of the aggravating factor that it was a case of international trafficking. The Court of Appeal was of the view that the appropriate term before considering the aggravating factor should be 20 years, and that two years was to be added for the international trafficking factor, making a 22 years starting point.

12.  We are of the view that the starting point of 21 years taken by Deputy Judge Poon did not substantially deviate from the abovementioned sentencing guidelines. The applicant failed to show that there are sufficient grounds of appeal.

Conclusion

13.  For the above reasons, the application is refused.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law