HKSAR v. LAM WAI CHI

CACC 78 /2019

[2020] HKCA 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 78 OF 2019

(ON APPEAL FROM HCCC NO 390 OF 2018)

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J U D G M E N T

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

1.  On 5 March 2019, before Anthea Pang J in the Court of First Instance, the applicant pleaded guilty to trafficking in a dangerous drug, namely 40.3 grammes of a crystalline solid containing 30.2 grammes of methamphetamine hydrochloride (commonly referred to as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was sentenced to 5½ years’ (or 66 months’) imprisonment.

2.  On 10 October 2019, the applicant was refused leave to appeal against sentence by the Single Judge[1].  On 15 October 2019, she sought to renew her application for leave.  The hearing of her renewed leave application was initially fixed for 3 April 2020.  However, due to the General Adjourned Period (“GAP”)^[2] and its extensions, the hearing was subsequently re-fixed to 5 May 2020. On the morning of 4 May 2020, however, the applicant filed a Notice of Abandonment of her renewed application for leave to appeal, without stating any reasons.  Although her application for leave is deemed dismissed, under Rule 39 of the Criminal Appeal Rules, Cap 221A, despite Notice of Abandonment having been received very late, we have retained the case in the list so that we may make certain observations as to the history and conduct of this appeal.  To that end, we should briefly advert to the facts of the case.

Facts admitted by the applicant

3.  At 8:50 pm on 9 April 2018, during an anti-dangerous drug operation, the applicant and a male friend were seen in the rear passenger seats of a taxi outside Fu Wing House, Tai Wo Hau Estate in Kwai Chung, New Territories.  When, at 8:52 pm, the taxi reached the exit gate of Tai Wo Hau Estate, the taxi was intercepted by one of the police officers, who instructed the applicant and the male person to alight from it. The applicant was escorted to a pavement on Shek Tau Street, where she was searched.

4.  In the waistband of her trousers were found two pieces of tissue sealed with adhesive tapes.  Inside the two pieces of tissue were further discovered three plastic packets containing Ice, the subject‑matter of the charge.  When arrested and cautioned, the applicant claimed that the three packets of Ice were for her own consumption and had nothing to do with her male friend.

5.  In a subsequent video-recorded interview, the applicant claimed that she did not know the weight and price of the Ice and did not open the tissue to have a look, whilst maintaining that the Ice was for her own consumption and would last her about 17 or 18 days.  Although she accepted that she was unemployed and living on CSSA, she denied that she had been instructed by anyone to deliver the Ice in question.  She explained that she had seen her male friend in Kwun Tong earlier that day and since, coincidentally, both of them wanted to go to Tsuen Wan, they had shared a taxi.

6.  It was accepted by the applicant when pleading guilty that, upon arriving at Tai Wo Hau Estate, she and the male person did not alight from the taxi but remained inside the taxi compartment for a female person to arrive.  The applicant did not have any money on her at the time but the female person would come down to pay the taxi fare.  Subsequently, the taxi had had to leave the Estate within 15 minutes in order to avoid a waiting surcharge being levied.  The applicant also accepted that she was trafficking in a dangerous drug at the time.

7.  The Ice in question had a total retail value of HK$27,968.

Mitigation and the urine test report

8.  The applicant was 50 years of age at the time of sentence.  Amongst her 25 appearances before the courts, she had 10 drug-related convictions, including one for trafficking, for which she had been sent to prison for 6 months.  It was submitted by counsel on her behalf that, after the delivery of the drugs, she would be given “a little for her own use” on an indeterminate basis[3]. Counsel also produced the result of a urine test conducted shortly after the applicant’s arrest (on 12 April 2018), in which she had tested positive for amphetamine (and benzodiazepam)^[4].

Sentencing

9.  Having regard to the circumstances of the applicant, the judge said she “completely reject[ed] that the [applicant] would have any amount of the drugs in question for her own use as claimed”^[5]. Indeed, during mitigation, the judge had made quite clear to defence counsel that she was not prepared to accept that any amount, let alone a small amount, was for the applicant’s own use and asked counsel whether he was going to further the claim by way of evidence.  Defence counsel answered that the applicant would not be giving evidence[6].

10.  In passing sentencing, the judge referred to the relevant sentencing guidelines on Ice in HKSAR v Tam Yi Chun [2014] HKC 256, which stipulated a starting point of 7 to 11 years’ imprisonment for trafficking in between 10 and 70 grammes of narcotic.  Accordingly, she adopted a starting point of 8 years and 3 months’ imprisonment, which she then reduced by one-third for the applicant’s early plea, resulting in a sentence of 5½ years (or 66 months’) imprisonment.

Ground of appeal

11.  In her Form XI (Notice of Application for Leave to Appeal), the applicant merely asserted that the sentence was too heavy and she hoped for a reduction.  In her Form XIII (Notice of Renewal of Application after Refusal by the Single Judge), filed on 18 October 2019, the applicant did not articulate any further complaint about her sentence at all.

Respondent’s submissions

12.  In the course of his submissions on behalf of the respondent, Mr Daryanani referred us to HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, where a different division of this Court declined to interfere with the discretion exercised by the trial judge who accepted the applicant’s evidence, given at a trial before the jury, that part of the 30.25 grammes of Ice narcotic in which he had trafficked was for his own consumption and discounted the starting point by 4%, thereby effectively reducing the sentence by 4 months to one of 8 years’ imprisonment.  There, the Court said:

“63. We have no objection to the defendants in drug trafficking cases being given reductions in sentence on the basis that part of the dangerous drugs is for their own consumption, if those defendants are drug addicts themselves, through the judge exercising his discretion. However, we need to reiterate that in the absence of clear evidence that a substantial part of the dangerous drug in question is for the defendant’s own consumption, the defendant cannot expect the court to give him a reduction of sentence in the region of 10% to 25% in accordance with the principle laid down in Chow Chun Sang. And defendants are not entitled to lodge an appeal on the ground that the court did not give him such a reduction.”

13.  The Court of Appeal also gave guidance as to the approach of both trial and appeal courts where it was being contended that part only, rather than a substantial part, of the dangerous drugs seized was for the personal use of the defendant or applicant.  The Court held:

“67. Where the defendant uses the ground that part of the dangerous drug involved was for his own consumption to ask for a reduction in sentence, then he must tell the court clearly his position whether a substantial part of the dangerous drug in question was for his own consumption. If the defendant adopts such a position, then the court needs to deal with it in accordance with the principle laid down in Wong Suet Hau, and if it is necessary, the court may have to decide by way of a Newton hearing whether the defendant’s claim is made out.

68. We need to reiterate that where the defendant’s claim leads to a Newton hearing by the court, then after the defendant’s claim has been rejected, the court is entitled to make appropriate adjustments according to the circumstances in individual cases to the discount in sentence the defendant will have for pleading guilty.

69. Where the position of the defendant is that only part of the dangerous drug rather than a substantial part of the dangerous drug was for his own consumption, the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.

70. We must emphasise that in the above circumstances, it is entirely in the judge’s discretion according to the circumstances of each individual case whether to give the defendant any reduction in sentence and the extent of that reduction on the basis that the defendant intended to use a small part of the dangerous drug for his own consumption.  Under normal circumstances, it is not appropriate for the defendant to use that as a ground of appeal to ask for a further reduction from the Court of Appeal.”

14.  Whilst acknowledging that the judge had a discretion to give the applicant a small discount on sentence if her claim of possession for her own consumption were accepted, Mr Daryanani submitted that the judge was nevertheless entitled to reject such claim and give the applicant no discount on sentence for such factor.

Consideration

15.  In the written judgment of the Single Judge on the leave application, the judge addressed the question of whether a small portion of the drugs in question was for the applicant’s own use and could have made any difference to sentence.  He pointed out that the sentencing judge did not in fact accept that any of the drugs were for the applicant’s own use for a number of reasons; two of which were concerned with the inherent unlikelihood of the applicant being able, pursuant to some prior agreement, to take part of the drugs as a reward for delivering them, given the way they had been packaged and concealed in three distinct packets on the applicant’s person. In our judgment, the Single Judge was correct on the sentencing judge’s own findings to refuse leave to appeal and there were, and are, no reasonably arguable grounds of appeal in this case.

16.  Given that leave to appeal on this matter has already been refused by the Single Judge with proper reasons being given, it was a little surprising that the applicant should have renewed her application in this matter, notwithstanding her undoubted right to do so, particularly when she has given no further elaboration whatsoever of her initial grounds of appeal upon the renewal of her application, and when she has also received a warning from the Single Judge as to Court’s power to order loss of time in the event that she unsuccessfully renewed her application for leave.

17.  We think that what may regrettably have happened in this matter is that the applicant’s interest in renewing her application and pursuing this appeal has been excited by the discussion in Mr Daryanani’s written argument, which culminated in his effective invitation to this Court to consider the correctness of the leading case in this area, namely HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, in light of the supposedly different approach of the Court in Kong Tat Lung.  Given the findings of the sentencing judge, who did not accept the applicant’s assertions from the Bar table about any part of the dangerous drugs found in her possession being for her own use, and the judgment of the Single Judge who expressly found no reasonably arguable grounds of appeal against sentence on this issue, it is perhaps unfortunate that the respondent’s submissions should have been presented in this way. 

18.  With great respect, it is one thing for counsel for the respondent to draw something to the attention of the Court, which may have a reasonable chance of affecting the outcome of an appeal: that is one of the true functions of his role as a minister of justice.  It is quite another to raise theoretical or academic questions, which cannot arise on the judge’s findings, have never in fact been raised by the applicant on appeal but have already been considered and rejected by the Single Judge: that is not the function of a minister of justice.  This Court does not deal in abstract appeals.  We do not doubt that Mr Dayanani was courteous and well-intentioned in his submissions, as he always is before this Court, but if the Court had thought it needed assistance on this issue, it would have asked for it.

19.  The unfortunate consequence is that everyone has prepared for this appeal, including two members of the Court of Appeal, who have read fully into the papers and numerous authorities.  Had a notice of abandonment not reached us yesterday morning, we would have had to give serious consideration to making a loss of time order if the applicant had continued with this application, particularly in these difficult times when the appeal courts are under significant pressure to deal with cases adjourned from GAP, a period which lasted no less than three months.  It hardly needs to be stated that by renewing a wholly unmeritorious application for leave to appeal, the applicant has deprived another person of appearing before this Court today with a reasonably arguable appeal, in circumstances where the courts are likely to be fully stretched for several months to come and where court time is at a premium. This is highly regrettable and, in the normal course, had she not abandoned her appeal in this particular matter, she would have found herself serving an order for loss of time.

20.  What has made that course even more difficult, with respect, are the submissions of the respondent, which we think have encouraged the applicant to renew her application for leave on the basis that there is some interesting point of principle on sentencing for this Court to resolve, when there never was any such point.  Accordingly, this hearing has been completely wasted.

21.  As it is, the application simply stands dismissed.

[1] Zervos JA.

[2] As a result of the coronavirus pandemic.

[3] AB, p 14C-E.

[4] The applicant’s urine test report dated 25 June 2018: AB, p 23.

[5] AB, p 9J-K.

[6] AB, p 15A-D.