HKSAR v. LIU CHI WA

CACC 306/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 2008

(ON APPEAL FROM HCCC NO. 11 of 2008)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.  The applicant was aged 47 when he pleaded guilty on 1 September 2008 before Deputy High Court Judge Longley to trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The applicant was sentenced on the same day to 16 years and 8 months’ imprisonment against which he now seeks leave to appeal.

2.  The particulars of the offence were that on 31 August 2007, in the vicinity of Landmark North, Sheung Shui, New Territories, the applicant trafficked in 1,997.02 grammes of a powder containing 1,644.98 grammes of ketamine and 1,016.87 grammes of a solid block containing 810.90 grammes of cocaine.  These drugs had a combined street value of $1,076,760.

3.  The applicant was arrested after he had put up resistance to officers attached to the Narcotics Bureau when they tried to intercept him.  He was found to be holding a plastic bag containing the ketamine and the cocaine was found tucked into his waistband.  The applicant was also in possession of four mobile telephones.  He immediately identified the two types of drugs he was carrying as ‘K Chai’ and ‘Coke’. 

4.  In an interview later, the applicant said that while he had been working as the manager of a discotheque in Shenzhen, he had come to know a customer called ‘Ah Chiu’ whom he had met again in July 2007.  Ah Chiu was aware that the applicant was unemployed at that time and offered to pay him $11,000 as a reward for bringing ‘stuffs’ to Hong Kong from Shenzhen. 

5.  The applicant followed the instructions he was given and, in due course, went to a hotel in Shenzhen where he collected a room key from a place where it had been secreted in a ground floor toilet.  Using the key, he gained access to the room where the drugs and a SIM card had been left for his collection.  He was then called on the SIM card number and he duly carried the drugs into Hong Kong, as he had been instructed to do, by taking the train.

6.  The judge, when passing sentence, rightly pointed out that the offence was aggravated in terms of its gravity by the element of importation.  Although, as the judge recognized, the new guidelines setting out the tariffs for trafficking in ketamine in Secretary for Justice v Hii Siew-cheng [2009] 1 HKLRD 1 were not in force at the time of the commission of this offence, the quantity of cocaine was so substantial that, by itself, this merited a starting point of over 20 years’ imprisonment.  All in all, although the judge considered that 11 years’ imprisonment was merited for this quantity of ketamine, he took an overall starting point of 25 years’ imprisonment as an appropriate level of sentence with a discount of a third for the plea of guilty which he described as the applicant’s “only real mitigation”.

7.  The applicant’s homemade grounds of appeal related to the remorse he says he now feels and his view that he has been sentenced to a longer sentence than “in an average drug case”.  The applicant provided details of the cases to which he was referring.  None of these cases really assist although it is fair to add that each case plainly has to be decided on its own facts and no two cases are ever exactly the same.  The question for us to determine is whether the applicant’s sentence, on these facts, was manifestly excessive.

8.  This was not an average trafficking case.  It was a singularly serious offence in terms of the quantity, variety and value of the drugs the applicant brought into Hong Kong and, because of the element of importation, it attracted a higher sentence than a trafficking offence without the element of importation (or exportation).

9.  The unfortunate circumstances in which, we are told, the applicant’s family now find themselves as a result of the applicant’s arrest is not a matter which can affect the sentence for an offence of this gravity.  The applicant was well aware of the consequences if he was discovered to be trafficking in dangerous drugs but he chose to take the risk.  He was prepared to seek personal enrichment without giving a thought to the misery brought to other families by the spread of drugs through traffickers such as himself.

10.  We should add, finally, that the applicant’s attempts to give assistance following his arrest, have come to nothing.

11.  The application is dismissed.