Hksar v Har Tsz Yui

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)

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REASONS FOR JUDGMENT

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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 v Hii 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...