HKSAR v. YUNG SAI HO

CACC 266/2017

[2018] HKCA 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 266 OF 2017

(ON APPEAL FROM DCCC NO 139 OF 2017)

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J U D G M E N T

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1.  The applicant faced a single charge of trafficking in 6.59 grammes of a crystalline solid containing 6.51 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant pleaded guilty to the charge on 3 August 2017 before HH Judge G Lam (“the judge”) and was sentenced on the same day to 42 months’ (or 3½ years’) imprisonment. He now seeks leave to appeal against sentence.

2.  On 25 August 2017, the applicant filed a Notice of application for leave to appeal (by way of Form XI), supplemented by two letters to the court containing his submissions, on 8 January and 29 January 2018.

The facts

3.  At about 11:15 pm on 19 November 2016, the applicant was observed wandering along the street outside Ground Floor, No. 26 Tsuen Fu Street, Tsuen Wan, New Territories, Hong Kong while constantly looking around by a team of police officers on anti‑dangerous drug patrol.  He was seen using his right hand to press on the waist bag placed at the area of his right back and repeatedly using his mobile telephone.  Accordingly, the officers decided to intercept him.

4.  Upon a search of the applicant, five re‑sealable transparent plastic bags containing a crystalline substance were found in his waist bag.  Also found on the applicant was HK$200 in cash and a mobile telephone.  The applicant was arrested and under caution admitted that the packages were “Ice”, which he had bought for his own consumption.

5.  In a subsequent video recorded interview, the applicant admitted, inter alia, that:

(i)  he resided in Tsz Wan Shan with his family;

(ii)  he had purchased the dangerous drugs, the subject of the charge, from a male at an amusement game centre in Mong Kok at about 10:15 pm on the day of his arrest for HK$1,600;

(iii)  he had then travelled to Tsuen Wan by MTR to look for a restaurant to have a late dinner with friends; and

(iv)  he was addicted to Ice, but there was no particular amount for each consumption.

6.  The estimated street value of the dangerous drug seized was about HK$2,207.  The applicant pleaded guilty to trafficking and made an admission in the Summary of Facts that he possessed the dangerous drugs seized for the purpose of trafficking.

Mitigation

7.  The applicant was 32 years of age at the time of sentence.  He was single but had a 5‑year old daughter.  He was a transportation worker earning HK$500 per day and had lived with his parents and siblings before his arrest.  He had 11 previous convictions, which included 7 for possession of dangerous drugs and one for trafficking in a dangerous drug. His last conviction was for simple possession, for which he was sentenced to 6 months’ imprisonment in August 2016, some three months before the commission of the present offence.

8.  It was submitted on behalf of the applicant at the hearing that he had purchased the five bags of “Ice” for himself and a friend, of which three bags (totalling 3.19 grammes) were intended for his own consumption.  On the evening of his arrest, the applicant was about to deliver the other two bags of “Ice” to his friend.  It was said that the applicant was not a professional drug trafficker and had received no monetary gain for purchasing the “Ice” on behalf of his friend.

9.  Since the prosecution took a neutral stance on the issue of the applicant’s own consumption of the drugs, the court was urged to accept that the claimed amount of “Ice” was indeed for the applicant’s own consumption.  It was submitted that the applicant was a long‑term “Ice” dependent, using about 0.8 gramme of the drug per day.  The urine test taken during the applicant’s detention showed a positive result for amphetamines.

Reasons for sentence

10.  The judge first identified the relevant sentencing guideline for trafficking in “Ice”[1], namely, between 3 and 7 years’ imprisonment after trial for up to 10 grammes of narcotic.  Here, the applicant had trafficked in 6.51 grammes of “Ice”, for which the judge held that a starting point of 5 years and 6 months’ imprisonment was appropriate.

11.  In addressing the issue of the applicant’s own consumption, the judge noted the fact that the applicant had had numerous convictions for simple possession and had previously been sentenced to a Drug Addiction Treatment Centre.  The applicant’s urine test also supported the fact that he was an “Ice” user at the time of the present offence.

12.  As for the quantity of dangerous drugs claimed by the applicant to be for his own consumption, the judge considered that the applicant’s claim was plausible, especially in view of the packaging of the drugs.  In the absence of evidence to the contrary, the judge accepted that about half of the “Ice” seized was for the applicant’s own consumption, and that the amount was a “significant” proportion of the whole.  Accordingly, the judge reduced the starting point to 56 months’ (or 4 years and 8 months’) imprisonment.

13.  However, since the applicant had only entered his plea of guilty on the first day of trial, the discount granted by the judge was 25% rather than 33.3%.  Accordingly, the applicant was sentenced to 42 months’ imprisonment.

Grounds of appeal against sentence

14.  In the statement attached to his Form XI, which he elaborated upon in his letter of 8 January 2018, the applicant stated that the Legal Aid Department had only assigned him a lawyer after he had pleaded not guilty at the first available opportunity to plead.  He maintained that as a person with no legal knowledge at all, he had no option but to plead not guilty before proper legal advice was given to him.  Therefore, the judge should not have reduced his sentencing discount on the basis that the guilty plea was not timely.

15.  It was averred that it was only after he had pleaded not guilty in the ‘Plea court’ and dates set down for trial that counsel was assigned by the Legal Aid Department through a private firm of solicitors, and he accordingly felt comfortable pleading guilty on the basis of legal advice.

16.  In his further letter of 29 January 2018, the applicant complained that the starting point adopted by the judge was too high when compared with that adopted by the District Court in HKSAR v Yu Cham Sun[2].  In that case, the quantity of dangerous drug was larger, yet a starting point of 5 years’ imprisonment was adopted; whereas in his own case a starting point of 5½ years’ had been adopted.

The respondent’s reply to the grounds of appeal

17.  Mr Daryanani, on behalf of the respondent, submitted that on an arithmetical approach in accordance with the guidelines in HKSAR v Tam Yi Chun, the starting point should have been 5 years and 7 months’ imprisonment.  On the issue of the applicant’s own consumption, the judge reduced the initial starting point to 56 months’ imprisonment, which represented a 15% discount for this factor.  The respondent submitted that the judge’s final sentence of 42 months’ imprisonment (after a further 25% discount for his guilty plea) was entirely proper.  In fact, the applicant’s previous conviction for trafficking in dangerous drugs could have been, but was not, used to justify an enhancement of sentence.

18.  In respect of the applicant’s complaint that he was not given the opportunity of receiving proper legal advice before entering his plea, leaving him with little option but to plead not guilty, Mr Daryanani has helpfully set out the relevant chronology of events:

1st appearance: 7 March 2017	The applicant was represented by the Legal Aid Department, which had accepted representation on 6 March 2017.  No counsel was assigned at that stage.  The case was adjourned to 13 April 2017 for discussion as to plea.
2nd appearance: 13 April 2017	The applicant was represented by the Legal Aid Department.  A plea to simple possession was not accepted. A plea of not guilty to trafficking was therefore indicated and trial dates fixed for 3 and 4 August 2017.
27 April 2017	An amended Legal Aid Certificate was issued to the applicant assigning him solicitors, Messrs George Chan & Co., and counsel, Mr Jon Wong.  A further plea bargain was offered by counsel but  not accepted by the prosecution.
3rd appearance: 3 August 2017 (scheduled trial day)	The applicant pleaded guilty.

It is accepted that two weeks before the day fixed for trial, defence counsel had indicated to the prosecution that the applicant would be pleading guilty to the charge, which indication was then communicated to the court about a week before the trial date.

19.  The respondent submitted that the applicant, even without counsel being assigned to him, had all along been represented by the Legal Aid Department.  The case was initially adjourned for discussions as to plea.  Mr Daryanani argues that instructions must have been taken from the applicant in order to embark upon those discussions.  Moreover, when the plea bargain was subsequently refused, instructions must have been sought from the applicant, resulting in his indication of a plea of not guilty and the fixing of trial dates.

20.  The Legal Aid Department is, of course, staffed by qualified lawyers, who are competent professionals.  There was no right to a private lawyer and/or counsel before plea and the applicant, with his record of trafficking in, and possession of, dangerous drugs, would have well known his options, which were plainly being discussed with lawyers within the Legal Aid Department.

21.  In respect of the District Court case referred to by the applicant, the respondent submitted that no two cases were the same, particularly when the facts were different and the judges passing sentence were different.  Comparisons with other cases at first instance were therefore of little or no value in considering the correctness of an unrelated sentence on appeal.

Consideration

22.  On the question of the applicant’s own consumption, the judge accepted that a significant quantity of the dangerous drugs was for his own consumption and reduced what would otherwise have been the sentence by 15%.  This was within the acceptable range of reduction in the sentencing judge’s discretion.  It must be remembered that a sizeable quantity for one’s own consumption also gives rise to a greater latent risk of dissemination.

23.  There is no basis for any complaint about the discount of 25% for the applicant’s plea, since he had only pleaded guilty to the offence with which he was charged on the first day of trial.  It is clear that he had been properly represented at an early stage, during which two attempts to get the charge reduced to simple possession were mounted but failed.  The judge was correct in those circumstances, and bound by authority of this Court, not to give the applicant a full one‑third discount.  Indeed, the judge would have been entitled to give the applicant only a 20% discount for his plea of guilty, having left it until the first day of trial.  I note that his own counsel had told the judge that the range of discount should have been 20 to 25%.  As it was, the judge adopted the higher discount of 25%.

24.  I see no reasonable grounds for appeal, given that the applicant in fact received an overall discount from the starting point of 36.3%, bearing in mind his own consumption of a significant proportion of the drugs, and notwithstanding his late plea.

Conclusion

25.  The application must be refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

[1] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[2] HKSAR v Yu Cham Sun, DCCC 462/2016.