HKSAR v. WONG CHEUK FEI

CACC 499/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 499 OF 2012

(ON APPEAL FROM DCCC 474 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.  Having pleaded guilty to 3 charges on 6 December 2012 the appellant was sentenced that day by District Court Judge Yip to a total of 3 years and 5 months’ imprisonment, which sentence he ordered to be served consecutively to a sentence of 2 months’ imprisonment which the appellant was serving.

THE CHARGES

2.  By Charges 1 and 2, the appellant was charged with unlawfully trafficking in and possession of a dangerous drug, namely cocaine, contrary to section 4(1)(a) and (3) and section 8(1)(a) and (2) respectively of the Dangerous Drugs Ordinance, Cap. 134.  Charge 1 concerned 9.65 grammes and Charge 2, 0.08 grammes of cocaine.  Charge 3, alleged that on 20 June 2008 the appellant had failed to surrender to custody as required by a court, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221.

THE FACTS

3.  At about 9:15 p.m. on 28 February 2008 the appellant was intercepted by police officers on the staircase of a car park on the 1^st Floor of Choi Ha Estate, Sau Mau Ping and found to have a packet in his jacket containing 9.65 grammes of cocaine.  Having been arrested and cautioned, the appellant admitted having bought the cocaine for purposes of reselling it to others.  At about 3:20 a.m. the following morning the appellant led police officers to a motor car parked on the same first-floor, where the cocaine the subject of Charge of 2 was located in a banknote inside a cigarette box next to the driver’s seat.  Having been arrested and cautioned in respect of that quantity of cocaine the appellant contended that it was for his own use.  In a subsequent video recorded interview, the appellant admitted that the motor car belonged to him.

4.  Having been charged with offences of unlawfully trafficking in and possession of the respective amounts of cocaine, on 5 June 2008 the appellant was granted bail by a magistrate at Kwun Tong Magistracy to appear at the District Court on 20 June 2008.  He did not do so and a warrant was issued for his arrest.  Eventually, the appellant surrendered to the police on 17 October 2012.

REASONS FOR SENTENCE

Sentence

5.  District Court Judge Yip sentenced the appellant to 3 years and 1 month’s imprisonment for Charge 1; 8 months’ imprisonment for Charge 2; and 4 months’ imprisonment for Charge 3.  He ordered that the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence of imprisonment imposed on the appellant was 3 years and 5 months.

Starting point

6.  It is clear from the transcript of the sentencing hearing that, having noted that the guidelines for sentence articulated in the judgment of this Court in the Attorney General v Rojas [1] provided for a range of sentence between 2 and 5 years’ imprisonment for unlawfully trafficking in amounts up to 10 grammes of cocaine, the judge stipulated an enhanced starting point for sentence of 66 months’ imprisonment in respect of Charge 1.  In enhancing sentence he stated that he determined it to be an aggravating factor that the instant offences had been committed only 1 year and 3 months after the appellant’s release from prison in November 2006, having served a sentence of 8 years and 4 months’ imprisonment imposed in October 2001 for unlawful trafficking in dangerous drugs.

7.  The judge stipulated a starting point for sentence of 12 months’ imprisonment for Charge 2 and 6 months’ imprisonment for Charge 3.

Discount

8.  The judge afforded the appellant a discount of one third for his pleas of guilty.  In addition, for reasons apparent on the papers he gave the appellant a further discount of 7 months’ imprisonment in respect of Charge 1.

GROUNDS OF APPEAL AGAINST SENTENCE

9.  In his home-made grounds of appeal against sentence, the appellant submitted that the judge erred in taking a starting point for sentence of 5 years and 6 months’ imprisonment in respect of Charge 1.  He pointed out that the guidelines for sentence for unlawfully trafficking in cocaine in amounts up to 10 grammes fell in the range of up to 5 years’ imprisonment.  He had trafficked unlawfully in 9.65 grammes of cocaine.  He said that the judge was wrong to have enhanced the starting point for sentence to 5½ years’ imprisonment having regard to his previous criminal record, in particular for having been convicted of unlawfully trafficking in dangerous drugs, for which he had been sentenced in the Court of First Instance on 12 October 2001 to 8 years and 4 months’ imprisonment.

10.  In respect of Charge 3, the appellant contended that the judge had failed to take into account that, although he had absconded for over 4 years, he had surrendered to the police on his own initiative.  Accordingly, he contended that the sentence of 4 months’ imprisonment was too great.

A CONSIDERATION OF THE SUBMISSIONS

Starting point : Charge 1

11.  Although the judge was correct in observing that the instant offences had been committed by the appellant in 2008, only 1 year and 3 months after his release from a lengthy sentence of imprisonment for unlawful trafficking in dangerous drugs, other factors were also relevant to the issue of whether or not it was appropriate to enhance sentence for the commission of another offence of unlawfully trafficking in dangerous drugs. First, the instant offence was only the appellant’s second conviction of unlawful trafficking in dangerous drugs.  Secondly, the sentence imposed on the appellant for the earlier offence of unlawfully trafficking in dangerous drugs had been imposed in 2001.  Thirdly, the appellant had not been convicted of an offence of trafficking unlawfully in dangerous drugs in the 4-year period prior to his surrender to police in 2012, which led to sentencing in the instant case.  The fact that the appellant had absconded was, of course, reflected in a separate charge, for which a separate penalty was applied.  Furthermore, as was made clear in mitigation and in a letter to the court written by the appellant, he had determined to surrender to the police because, having become a father, he wished to resume his place in society and live a lawful life.  He knew and accepted that he would be sentenced to a lengthy term of imprisonment.

12.  The judge did not advert to any of these factors or give any explanation as to how he arrived at the specific enhanced sentence.   Indeed, he did not identify the initial starting point.  In our judgment, in all the circumstances it was not appropriate to enhance sentence in respect of Charge 1.  We are satisfied that the appropriate initial starting point for sentence is 5 years’ imprisonment.

Discount

13.  As Ms Samantha Chiu pointed out, in affording the appellant a general discount from the starting points taken for sentence of one third for his pleas of guilty the judge was extremely generous.  The appellant had absconded for over four years, albeit that he had surrendered eventually to the authorities.  His pleas were anything but timely. The discount of one third is afforded to those whose pleas are timely.  The judge would have been entitled to have given a reduced discount.

Charge 3

14.  Notwithstanding the fact that the appellant had surrendered to the authorities, rather than having been re-arrested, the starting point for sentence of 6 months’ imprisonment stipulated by the judge in respect of Charge 3 was entirely appropriate.

Conclusion

15.  In the result, we allow the appeal and quash the sentence of 3 years and 1 month’s imprisonment imposed in respect of Charge 1 and in its place impose a sentence of 2 years and 9 months’ imprisonment.  We do not disturb any of the other orders.  Accordingly, the total sentence imposed upon the appellant is 3 years and 1 month’s imprisonment.

[1] Attorney General v Rojas [1994]1 HKC 342.