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Hksar v Har Tsz Yui

Judgment Cited authorities 1 Cited in 5 Precedent Map Related
Judgment Date29 November 2019
Neutral Citation[2019] HKCA 1336
Judgement NumberCACC18/2019
Citation[2020] 1 HKLRD 307
Year2019
CourtCourt of Appeal (Hong Kong)

CACC 18 /2019

[2019] HKCA 1336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 18 OF 2019

(ON APPEAL FROM DCCC NO 393 OF 2018)

________________________

BETWEEN
HKSARRespondent
and
HAR TSZ YUI (夏子銳)Appellant

________________________

Before:Hon Macrae VP and McWalters JA in Court
Date of Hearing:21 November 2019
Date of Judgment:21 November 2019
Date of Reasons for Judgment:29 November 2019

________________________

REASONS FOR JUDGMENT

________________________

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

1. By leave of the Single Judge granted on 21 August 2019, the appellant appeals against his sentence of 3 years’ (or 36 months’) imprisonment imposed by HH Judge Douglas Yau (“the judge”) on 8 January 2019, following his plea of guilty on the same day to a single charge of trafficking in a dangerous drug, namely 14.09 grammes of a powder containing 9.86 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. On 21 November 2019, having heard argument, we allowed the appeal and reduced the sentence from 3 years’ imprisonment to 2 years and 10 months’ imprisonment. We indicated that we would hand down our reasons in due course. These are our reasons.

The Amended Summary of Facts admitted by the appellant

3. On 7 February 2018, at about 9:15 pm, the appellant was seen walking outside No 159 Tai Kok Tsui Road, Kowloon, where PC 15427 was on patrol with his team members. He was observed to be acting nervously. Accordingly, the appellant was intercepted by PC 15427 who thereupon found on him 11 plastic bags containing 14.09 grammes of a powder which were subsequently confirmed to be 9.86 grammes of ketamine with a retail value of $7,791.77. Also found on him were the sum of $11,703.10 in cash and two mobile telephones. The appellant was arrested and cautioned, whereupon he claimed that the ketamine was for his own consumption and asked for a chance.

Mitigation

4. The appellant was single and 44 years of age. It was submitted that in the course of his employment as a driver in 2014, the appellant had been injured, as a result of which he was unable to drive. In those circumstances, a male friend had suggested that he deliver drugs for him, for which he would be given some ketamine to relieve his pain.

5. At mitigation, no issue was taken with the enhancement of sentence for the appellant’s previous convictions, amongst which were two appearances in respect of a total of three offences of trafficking in dangerous drugs and one offence of conspiracy to manufacture dangerous drugs. On 30 October 1996, the appellant had been sentenced in the High Court to an overall sentence of 7 years’ imprisonment for two offences of trafficking in dangerous drugs and one offence of conspiracy to manufacture dangerous drugs; whilst on 11 December 2008, the appellant had been sentenced, again in the High Court, to 9½ years’ imprisonment for one offence of trafficking in dangerous drugs. He had also been dealt with in the magistrate’s court over a period of some 30 years for various offences of dishonesty and violence.

Reasons for sentence

6. In passing sentence, the judge considered the guidelines laid down by this Court in Secretary for Justice vHii Siew Cheng[1], where for trafficking in more than 1 gramme and up to 10 grammes of ketamine narcotic a starting point of between 2 and 4 years’ imprisonment was stipulated. Here, in respect of 9.86 grammes of ketamine narcotic, the judge adopted a starting point of 47 months’ imprisonment.

7. Since the offence had been committed slightly more than 3½ years after the appellant’s last discharge from a substantial prison sentence for the very same offence, the judge enhanced the starting point by 7 months to 54 months’ imprisonment[2].

8. The judge pointed out that the defence contention that the appellant was using ketamine to relieve his pain was not a valid consideration. The judge said[3]:

“It was never part of [the defence] case that any of the ketamine that the defendant was found in possession of was for his self‑consumption. The only mitigating factor is the defendant’s timely guilty plea.”

9. In the result, the judge gave the appellant a full one-third discount for his timely plea of guilty and passed a sentence of 36 months’ imprisonment.

Ground of appeal

10. Ms Money Lo, on behalf of the appellant, accepted that we are not concerned in this appeal with whether the judge was correct to enhance the starting point as a matter of sentencing principle, given the appellant’s criminal record. The only issue is whether the enhancement of 7 months’ imprisonment was disproportionate to the original starting point of 47 months’ imprisonment arrived at arithmetically for the quantity concerned, given that it represented a 14.89% increase of the starting point.

11. Ms Lo submitted that the level of enhancement should not have gone beyond a 10% increase of the original starting point. She defied the respondent to produce a case where, in the context of drug cases, an enhancement of more than 10% for previous similar convictions, has ever been imposed in the District or High Court. In particular, she referred to the decision in HKSAR v Lau Tsz Ho[4], where this Court reduced an enhancement for the applicant’s previous convictions of 14 months (representing an increase of the starting point by an identical 14.89%) to 6 months’ imprisonment (representing an increase of 6.38%), in respect of an offence of trafficking in 28.48 grammes of methamphetamine hydrochloride. She further relied upon the decision of HKSAR v Le Huu Nghi[5], where this Court, in a case of trafficking in 13.65 grammes of heroin narcotic, considered an enhancement of almost 10% for similar trafficking convictions to be excessive.

12. Ms Lo made the point that while sentences in trafficking cases are primarily based on the quantities of dangerous drugs involved, so are enhancements, for example, for the international element in trafficking across the border into or out of Hong Kong: see HKSAR v Chung Ping Kun[6]; HKSAR v Chan Ka Yiu & Ors[7].

Respondent’s submissions

13. Ms Claudia Ng, for the respondent, submitted that the present enhancement had to be viewed globally, and not simply in terms of percentages. A...

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5 cases
  • 香港鐵路有限公司 訴 黃俊華
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 19 July 2022
    ...同上，[8]。 [5] 同上，[9]。 [6] 同上，[10]。 [7] 見法庭致上訴人兩份函件，日期分別為2021年9月13日及2022年5月18日。 [8] Form 102 (日期：2021年8月25日) [9] [1999] 2 HKLRD 830 [10] [2020] 1 HKLRD 307 ...
  • 香港特別行政區 訴 李尚衡
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 22 October 2021
    ...[16] HCMA 378/2008 (未經彙編，2008年8月7日) [17] [1995] 1 HKC 659 [18] [2012] 1 HKC 504 [19] [2021] 1 HKLRD 290 [20] [2020] 1 HKLRD 307 [21] 見2008年第23號條例的序言(A972，2008年7月4日) [22] 見立法會參考資料摘要(檔號： THB (T) CR 1/14/3231/00)，第13(a)段。 [23] 2008年第23號 [24] 2010年第19號(A918, 2010年12月17日) [25] HCMA 213/2015，游德康暫......
  • Hksar v Lam Chi Tak
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 May 2024
    ...p 24P-R. [10] AB, p 21L-N. [11] HKSAR v Mok Cho Tik [2001] 1 HKC 261. [12] AB, pp 25R-26E. [13] AB, p 27E-F. [14] HKSAR v Har Tsz Yui [2020] 1 HKLRD 307, at [15], [17] and [15] HKSAR v Ng Yu Tin (Unrep., CACC 136/2020, 10 September 2021), at [25], per Macrae VP. [16] Ko Wai Shing, at [49]. ......
  • Hksar v Ho Chak Ming
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 19 July 2023
    ...HKSAR v Le Huu Nghi [2017] (Unrep., CACC31/2017, 22 September 2017). [5] Ibid., at [11]. [6] Ibid., at [10]. [7] HKSAR v Har Tsz Yui [2020] 1 HKLRD 307 at 313, [8] HKSAR v So Yat-ting [2021] 1 HKLRD 1215, at [49]. [9] HKSAR v Lam Kwa Wa (Unrep., HCMA 1078/2002, 13 December 2002). [10] Le Hu......
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