HKSAR v. LAU WAN LUNG

CACC 205/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 205 OF 2014

(ON APPEAL FROM HCCC NO. 361 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court):

1. The applicant seeks leave to appeal against a total sentence of 7 years’ imprisonment imposed on him by Deputy High Court Judge McMahon on 27 May 2014 following his plea of guilty to two counts of unlawful trafficking in a dangerous drug on 16 April 2013, namely 22.48 grammes of methamphetamine hydrochloride (Count 1) and 9.77 grammes of methamphetamine hydrochloride (“ice”) (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The judge sentenced the applicant to 6 years’ imprisonment in respect of Count 1 and 4 years and 9 months’ imprisonment in respect of Count 2, ordering that 3 years and 9 months of the sentences be served concurrently. Accordingly, the total sentence imposed on the applicant was 7 years’ imprisonment.

2. On arraignment the applicant pleaded not guilty to both counts and the trial proceeded with a voir dire to determine the admissibility of out-of-court statements made by the applicant.  Following the judge’s ruling at the conclusion of the voir dire, during which evidence had been led over three days, that those out-of-court statements were admissible in evidence, the applicant was re-arraigned and pleaded guilty to both counts.

The facts

3. On 16 April 2013, the applicant, who was in the company of two females, was intercepted by police officers at the ground floor lobby of Yan Chi House, Tin Yan Estate, Tin Shui Wai by police officers after having been observed to have behaved furtively.  A search of his person revealed two plastic bags containing 22.48 grammes of ice which were found inside the right front pocket of his trousers.  Having been arrested and cautioned, the applicant admitted that he was in possession of the ice and asserted that it had nothing to do with others.

4. A search of the applicant’s home, namely Room 2512, 25/F, Yan Chi House, Tin Yan Estate, Tin Shui Wai, revealed the presence on a table of six plastic bags containing 9.77 grammes of ice, 90 empty plastic bags, one electronic scale, five spoons, two home-made hookahs, two pieces of tinfoil and a lighter. Two females, who were caring for two babies, were sitting next to the table.  Having been cautioned for unlawfully trafficking in a dangerous drug and for being in possession of equipment fit for inhaling a dangerous drug, the applicant accepted that the ice and the two hookahs were his and asserted that they had nothing to do with the two females. 

5. It was accepted that the overall retail value of the ice at that time was $27,066.

Reasons for sentence

Starting point

6. The judge said that in the light of the quantity of ice involved in Count 1, he took a starting point of 7 years and 6 months’ imprisonment.  Having noted that the packets of drug were found on the table next to items relating to their consumption, the judge said that he accepted the mitigation advanced on behalf of the applicant that a substantial part of the drug was for self-consumption. On the other hand, having noted that there were some 90 small empty plastic bags and a set of electronic scales, the judge said that those items were consistent with unlawful trafficking in dangerous drugs.  In the result, he determined that at least half of the ice found in the applicant’s home was for unlawful trafficking.  Noting that the ice found in the premises was found openly displayed and in close proximity to the two females, the judge determined that there was a high latent risk of the drugs falling into the hands of others.  In the result, the judge stipulated a starting point for sentence in respect of Count 2 of 6 years’ imprisonment.

Discount

7. The judge said that the only mitigation available to the applicant was his pleas of guilty.  However, having noted that the applicant pleaded guilty to the two counts only after his out-of-court statements were ruled admissible after a voir dire had been conducted and having adverted to the judgments of this Court in HKSAR v Leung Cho Yi [1] and HKSAR v Wong Kam Tat [2], the judge determined that the appropriate discount to be afforded to the applicant for his pleas of guilty was 20% from that taken as the starting points. 

8. In the result, the judge imposed a sentence of 6 years’ imprisonment for Count 1 and 4 years and 9 months’ imprisonment for Count 2.  Stating that he had regard to the principle of totality of sentence, the judge ordered that 3 years and 9 months of the sentences of imprisonment be served concurrently. Accordingly, the total sentence of imprisonment imposed on the applicant was 7 years.

Ground of appeal against sentence

9. In the grounds of appeal against sentence advanced on behalf of the applicant, Mr John Hemmings submitted that the totality of the sentences of imprisonment imposed on the applicant ought not to have exceeded the appropriate sentence for unlawfully trafficking in the total amount of ice.  He suggested that an application of the appropriate guidelines for sentence to the total amount of ice resulted in a sentence of about 8 years’ imprisonment.

10. In support of that submission he referred the court to a letter dated 27 May 2014 that the judge had written to him, copied to the Director of Public Prosecutions, counsel for the respondent at trial and the Director of Legal Aid, in which the judge had acknowledged that whilst he was functus officio nevertheless he accepted that he had fallen into error in imposing sentence and suggested that the “appropriate ‘global’ starting point for sentence (was) in the vicinity of 8 years imprisonment”.

11. Mr Hemmings submitted that the appropriate sentence to be imposed on the applicant after application of the discount afforded by the judge of 20%, was a sentence of 6 years and 4 months’ imprisonment.

The submissions of the respondent

12. In his submissions on behalf of the respondent, Mr Raymond Cheng accepted that the judge had fallen into the error contended for by Mr Hemmings and invited the court to quash the sentence and impose the sentence sought by Mr Hammings.

A consideration of the submissions

13. The total amount of ice involved in the two counts was 32.25 grammes.  Of course, the judge had accepted that not all but at least half of the 9.77 grammes of ice, the subject of Count 2, were for unlawful trafficking.  The guidelines for sentencing articulated in the judgment of this Court in the Attorney General v Ching Kwok Hung [3] as explained in the subsequent judgment of this Court in HKSAR v Capitania [4] provide for a range of sentence from 7 to 10 years’ imprisonment for unlawfully trafficking in amounts of ice between 10 and 70 grammes.

14. In those circumstances, we are satisfied the appropriate overall starting point for the total amount of ice of which the judge found the applicant to have trafficked unlawfully, together with the amount of ice which he was in unlawful possession for his own use and having regard to the high latent risk, was 8 years’ imprisonment.  Affording the applicant a discount of 20% from the starting point, we accept that the appropriate overall sentence to be imposed on the applicant is 6 years and 4 months’ imprisonment.

Conclusion

15. In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the judge’s order that 3 years and 9 months of the sentences imposed on Counts 1 and 2 be served concurrently.  In place of that order, we order that 4 months of the sentence imposed in respect of Count 2 be served consecutively to the sentence of 6 years’ imprisonment imposed in respect of Count 1.  Accordingly, the total sentence imposed on the applicant is 6 years and 4 months’ imprisonment.

[1] KSAR v Leung Cho Yi (CACC 385/2008; unreported, 30 April 2009).

[2] HKSAR v Wong Kam Tat [2002] 2 HKC 677.

[3] Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125.

[4] HKSAR v Capitania (CACC 28/2004; unreported, 6 August 2004).