Hksar v Wong Yun Fat

CACC 180/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 180 OF 2016

(ON APPEAL FROM HCCC 433 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1. The applicant was charged with one count of trafficking in 68.7 grammes of a crystalline solid containing 65.7 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (count 1); and one count of possession of 10 grammes of a crystalline solid containing 9.69 grammes of methamphetamine hydrochloride, contrary to section 8(1)(a) and (2) of the same ordinance (count 2). He pleaded guilty to both these counts before High Court Judge Campbell-Moffat (“the judge”) on 6 November 2015. On 2 June 2016, the applicant was sentenced by the judge to a total term of 7 years and 3 months’ imprisonment.

2. On 21 June 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.

3. At the hearing of the application on 23 June 2017 we adjourned it to enable the respondent to provide the court with further information in respect of assistance rendered by the applicant to the authorities. At the resumed hearing of the appeal we allowed it and, treating the hearing of the application as the hearing of the appeal, we set aside the sentence of the judge and in its place imposed on the applicant a sentence of 6 years 9 months’ imprisonment. We said we would hand down the reasons for our judgment at a later date. This we now do.

The background to the offences

4. The Summary of Facts which the applicant admitted for the purpose of his sentencing revealed that on 17 February 2015 at around 1940 hours, the applicant was intercepted after exiting Wan Chai MTR station. Upon a search of his person, he was found to be in possession of three plastic bags containing the following quantities of Ice:

(a) 27.8 grammes of a crystalline solid containing 26.5 grammes of Ice;

(b) 27.3 grammes of a crystalline solid containing 26.1 grammes of Ice; and

(c) 13.6 grammes of a crystalline solid containing 13.1 grammes of Ice.

5. The applicant was arrested and under caution, he stated:

“The ice is for my own consumption.”

6. The applicant was then escorted back to his residence at Tsing Yi for a house search. Entry was gained to his residence using keys seized from him. The search revealed one plastic bottle containing the 9.69 grammes of Ice, that is the subject of count 2, one electronic scale, a pair of pliers, a lighter and 58 empty transparent resealable plastic bags. The applicant was cautioned again and he stated:

“I used the pliers, the scale and the plastic bags to separate the stuff for my consumption.”

7. In a subsequent video-recorded interview, the applicant claimed that he had earlier purchased the Ice found on his person for HK$2,000 and that it was for his own consumption. In respect of the bottle containing Ice that was found at his residence, he claimed that it was bought by him for HK$500 about half a month previously.

8. The total quantity of Ice seized was 78.7 grammes of a crystalline solid containing 75.39 grammes of Ice. It had an estimated street value of about HK$33,998.

9. In the final paragraph of the Summary of Facts, the applicant admitted and accepted that the Ice that was found on his person when he was intercepted at Wan Chai, namely a total of 68.7 grammes of a crystalline solid containing 65.7 grammes of Ice, was possessed by him for the purpose of trafficking.

The mitigation

10. Ms Chow, counsel for the applicant at the sentencing hearing, informed the judge that the applicant was 63 years old at the time of his sentence. The applicant had a long criminal history dating back to 1973. He received his first custodial sentence in 1975 just before he turned 22 years of age. This was a sentence of 21 months’ imprisonment for the offence of robbery. In 1976, presumably very soon after his discharge from prison for the robbery sentence, he was convicted of triad related offences for which he was sentenced to 3 months’ imprisonment. This was followed in 1982 with two convictions for theft.

11. In 1984 the applicant was convicted of murder for which he was sentenced to death but this was commuted to life imprisonment on 10 September 1985 and the sentence of life imprisonment was commuted by the Chief Executive on 30 October 2004 to 34 years’ imprisonment. The applicant completed this sentence on 6 November 2006.

12. After his discharge from prison the applicant continued to come before the courts for offences of theft (2008), possession of dangerous drugs and money laundering (2010) and possession of dangerous drugs (2011). On 25 June 2015 he was sentenced to 14 weeks’ imprisonment for a possession of dangerous drugs offence and a further 5 weeks’ imprisonment for his breach of a still operable suspended sentence of imprisonment.

13. Ms Chow relied on a letter written by the applicant in which he admitted his wrongdoing and expressed his remorse. In this letter the applicant informed the court that he grew up in a poor rural family and had to commence working at the age of 15 in order to subsidise his family’s income. He then said:

“Unfortunately, within a short period of time, I went astray under peer’s influence and in the days that followed, my life was pegged down to dangerous drugs, crimes, police, courts, prisons and whatnot. Now I am a sixty-three recidivist and have spent over 30 years behind bars!!!”

14. The applicant said that whilst in prison he came to realize that “only by reforming myself devotedly through building up knowledge and reshaping my character could I change my fate”. He thereafter used his leisure time to study and completed a number of courses and received certificates and diplomas from various educational institutions.

15. The applicant also stated that he converted to Christianity while he was in prison and had formed a Christian music band with other inmates. He wrote all the music and lyrics of the songs they sang and the band produced a number of CDs. He also participated in a TV series entitled “Edge of Metal Bars” that was jointly produced by the Correctional Services Department and RTHK. He claimed that some of these recordings can be found on YouTube.

16. On his release from prison on 6 November 2006 he became involved in sharing his experiences in churches and started gaining popularity in Christian circles. He thinks that his increasing popularity and factional interests within the church caused persons at a senior level of the church to become “suppressive” towards him. This led to him feeling aggrieved and he attributes his own failings and this sense of grievance as the reasons why he relapsed into crime.

17. Whilst recognising his imperfections the applicant maintained that he was not bad by nature and was kind-hearted. He made monthly donations to the charity Save the Children and would help the impoverished elderly persons in his community who strove to make a living by selling junk.

18. Realizing that through his letter the applicant could relate his life story more eloquently than her, Ms Chow allowed this letter to speak for the applicant. She was right to do so. The applicant concluded his letter with the following words:

“There are few that can live up to seventy years old and I am now already sixty-three. I do not know when my curtain will come down but I do not want the show ends sadly with me hiding behind painful dark clouds. I am the author, the director and the actor in this tragedy of mine. Having gone through so much self-created hardship, I have learnt enough lessons! With faith, I dare promise your Lordship that this will be the last time in my life to appear before Your Lordship as a prisoner standing in the dock. If our paths ever cross again, I dare guarantee that it will be in a dimension of freedom where I am a citizen!”

19. There was an additional matter on which the applicant was entitled to some credit. He had assisted the police in the investigation of an offence which had led to the offender being apprehended and pleading guilty to the offence with which he was charged. In respect of another, unrelated offence, he had given a statement that was relevant to an impending trial but, in the end, no use was made of the information he provided. In neither of the two cases was the applicant called upon to testify for the prosecution.

The judge’s Reasons for Sentence

20. The judge noted the life history of the applicant as revealed in the contents of his mitigation letter. From what he had said in that letter she accepted that:

“… you have made significant efforts over the years to address your offending, and that you seek to blame no-one but yourself for what has become of your life.”

21. She initially considered that the applicant’s lengthy criminal record might warrant enhancement of the starting point of his sentence. However, after having regard to all that the applicant said in his letter, the judge decided not to do so.

22. In considering the sentence for count 1, the judge applied the sentencing guideline for trafficking in Ice that was laid down by the Court of Appeal in HKSAR v Tam Yi-chun[1]. Under this guideline, trafficking in 10 to 70 grammes of Ice attracts a sentence in the range of 7 to 11 years’...