Case Detail

CACC 92/2019

[2020] HKCA 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 92 OF 2019

(ON APPEAL FROM HCCC NO 190 OF 2018)

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BETWEEN
	HKSAR	Respondent
and
	LAU YIU MING (劉耀明)	Applicant

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Before: Hon McWalters JA and Anthea Pang J in Court

Date of Hearing: 15 September 2020

Date of Judgment: 15 September 2020

Date of Reasons for Judgment: 28 September 2020

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REASONS FOR JUDGMENT

_________________________

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

1. Following his pleas of guilty on 4 June 2018 in the Magistrate’s Court, the applicant was committed for sentence to the Court of First Instance on two charges of trafficking in a dangerous drug, namely 55.9 grammes of a mixture containing 45.4 grammes of heroin hydrochloride (Charge 1) and 692.17 grammes of a mixture containing 562.01 grammes of heroin hydrochloride (Charge 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 1 March 2019, he was sentenced by Toh J (“the judge”) to 13 years and 4 months’ imprisonment.

2. The applicant subsequently applied for leave to appeal against his sentence and on 20 December 2019, he was refused leave to appeal against sentence by the Single Judge[1]. He then renewed his application for leave to appeal against sentence before the Court of Appeal.

3. At the hearing of the application we refused it, dismissed his appeal and directed that two months of the time he has spent in custody pending the determination of his appeal shall not be reckoned as part of the term of his sentence. We said we would hand down our reasons for our decisions at a later date. These are our reasons.

The Summary of Facts

4. The Summary of Facts which the applicant admitted and which was used for his sentencing revealed that on 1 August 2017, at around 8:45 pm, police officers stopped the applicantwhen he was seen walking out of No. 18 Larch Street, Tai Kok Tsui, Kowloon. Upon a search of his person, the police officers found two packets containing suspected dangerous drugs hidden inside his underpants. These were subsequently confirmed to be 55.9 grammes of a mixture containing 45.4 grammes of heroin hydrochloride. The applicantwas arrested and, in response to being cautioned, he claimed that the white powder was for his own consumption.

5. The police officers also seized from the applicant a key which they then used to unlock the door to his residence at Room 6 on the 6^th floor of the same building. In his presence, a rucksack was found on his bed which contained the following items:

(a) one packet, containing 351 grammes of a mixture containing 285 grammes of heroin hydrochloride;
(b) one packet, containing 297 grammes of a mixture containing 242 grammes of heroin hydrochloride;
(c) one plastic bag, containing 24.3 grammes of a mixture containing 19.3 grammes of heroin hydrochloride;
(d) one plastic bag, containing 16.3 grammes of a mixture containing 12.9 grammes of heroin hydrochloride;
(e) one plastic bag, containing 3.57 grammes of a mixture containing 2.81 grammes of heroin hydrochloride;
(f) two electronic scales; and
(g) some empty transparent re-sealable plastic bags.

6. When further cautioned in respect of these drugs the applicant accepted that the white powder belonged to him.

7. In a subsequent video record of interview, the applicant accepted that he possessed the dangerous drugs seized from his rucksack for the purpose of trafficking. He also admitted that he had been selling dangerous drugs for two months earning $260,000 in total. He said he was expecting to earn between $80,000 and $100,000 for the present trafficking.

8. The estimated value of the dangerous drugs found on his person and in his rucksack was $475,024.

The mitigation

9. The applicant was 47 years of age and educated to Form 3 level. Prior to the arrest on 1 August 2017, he worked as a transportation worker for a vegetable store, earning a monthly income of about $15,000. It was asserted by counsel on his behalf that, in June 2017, he agreed to keep and deliver the dangerous drugs for a female friend surnamed Chan and nicknamed “Ah Sou”.

10. Prior to sentencing the applicanthad provided information to the ICAC and to the police in respect of his accomplices and their drug trafficking activities. Ultimately, the applicant’s assistance to the ICAC was not pursued by the applicant’s counsel as a mitigating factor and his counsel also accepted that the information the applicant had provided to the police was not fruitful.

11. The applicant had a lengthy criminal record. He had over 20 previous convictions and 4 of them were related to drug trafficking. Two trafficking charges, together with a charge of managing a divan, dated back to 2005. He pleaded guilty to these offences in the District Court and was sentenced to a total of 25 months’ imprisonment. The other two charges related to trafficking in heroin hydrochloride. He pleaded guilty in the Court of First Instance to these charges and he was sentenced on 9 September 2009 to a total of 64 months’ imprisonment.

The judge’s Reasons for Sentence

12. The judge referred to the sentencing guideline in HKSAR vAbdallah[2] which stipulated that trafficking in a quantity of heroin hydrochloride that was between 600 and 1,200 grammes would attract a starting point of between 20 and 23 years’ imprisonment. She combined the quantity of heroin narcotic in both charges, which totalled 607.41 grammes, and for this quantity then took an overall starting point of 20 years. She said that although the applicant had a bad criminal record, she would not enhance the starting point as his early plea of guilty and his attempt to assist the authorities indicated “a certain amount of remorse.”[3] She then awarded him a full one-third discount to reflect his remorse and timely pleas of guilty.

13. The final sentences that the judge imposed were 4 years’ imprisonment for Charge 1 and 13 years and 4 months’ imprisonment for Charge 2. She ordered that both sentences should run concurrently with each other.

The applicant’s grounds of appeal

14. When applying for leave to appeal before the Single Judge, the applicant filed a number of documents with the court. The documents included:

(a) a 2-page submission attached to his Form XI filed on 21 March 2019. In that document, he blamed his counsel for failing to discharge his professional duties because he did not ask for a reduction in sentence with regard to the detailed information provided by him to the ICAC;
(b) a 2-page submission filed on 30 August 2019. In this document, the applicant again criticized his counsel for usurping the role of the judge and concluding that his information to the ICAC was not useful. He disagreed, and argued that if his counsel was right, the ICAC would not have interviewed him so many times. He complained that he was deprived of a fair sentence.
(c) a 9-page submission filed on 12 September 2019. In this document, the applicant repeated grievances that he harboured against his counsel. He said that his instructing solicitor had taken a different view from his counsel and described the information he provided to the ICAC as “in fact very useful”. He also gave a detailed account of how he came to commit the present offences. Whilst admitting that he had “engaged in trafficking in a dangerous drug”, he was aggrieved at being betrayed by someone and as a result of that the police unfairly targeted him and other less culpable drug couriers, but not the masterminds.

15. The applicant has not filed any further submissions since his unsuccessful leave application and at the hearing of this renewed application he said he had nothing to add to his written submissions.

The applicant’s assistance to the authorities

16. The applicant’s assistance to the ICAC and the police has been thoroughly investigated by the respondent. The respondent assessed the information provided by the applicant and, noting that it had not led to any arrest or prosecution of any person, formed the view that “the information provided was of no practical use to the law enforcement agencies and the highest it can be put is that the applicant had tried to help.” That assessment was available to the applicant prior to the leave hearing. In his leave judgment the Single Judge said:

“From the material available to me, I cannot see that the authorities can be criticised for that assessment. And nor can the applicant’s counsel. He did not make the decision that the information was of no practical use: the authorities did.”[4]

The respondent’s submissions

17. Ms Lily Yip, for the respondent, adopted the written submissions that she had filed for the hearing before the Single Judge. Those that are relevant to the present application were:

(i) the judge was lenient in not enhancing the starting point of the applicant’s sentence in view of his appalling criminal record;
(ii) the applicant’s information and/or assistance to the ICAC and the police was assessed to be of no practical use; and
(iii) since the information to the ICAC was devoid of practical use, there could be no complaint that the applicant’s counsel was incompetent or unfairly deprived him of a lower sentence.

Discussion

18. The applicant has not raised any new grounds of appeal. At the heart of his complaints is a grievance that he has not received any sentencing credit for his assistance to the authorities. That he provided assistance was recognized and that he was genuine in his efforts to assist was accepted by the judge. However, his assistance was not, ultimately, of any practical use to the law enforcement agencies whom he sought to assist. That being so, there was no error by the judge in not reducing her sentence in order to reflect this assistance. This was also the conclusion reached by the Single Judge in his leave judgment and which conclusion he carefully explained to the applicant in that judgment. There being no merit in his renewed application for leave to appeal against his sentence, we refused to grant him leave to appeal and we dismissed his appeal.

Loss of time

19. Prior to the hearing of his renewed application we reminded the applicant of the power this court possesses, should we find no merit in his renewed application, to direct that part of the time he has spent in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence. This power of the Court of Appeal is contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221. It was drawn to the applicant’s attention by the Single Judge in his leave judgment and it is also specifically drawn to the applicant’s attention as a note on the Form XIII which is used to renew an unsuccessful application for leave to appeal.

20. Despite our warning the applicant persisted in his application. After refusing his application and dismissing his appeal we asked the applicant why we should not make an order for loss of time. In reply the applicant said he had nothing to say.

21. We noted that the applicant had received a thorough assessment of the value of his assistance from the respondent and that the Single Judge had considered this assessment at the leave stage and could find no fault with it. Even though no specific discount was given in respect of it, we noted that the judge used it as a reason for not enhancing her starting point in view of his appalling criminal record. Had she decided to enhance her starting point the amount of the enhancement would have been substantial. We were in no doubt that, indirectly, the applicant received a significant, and arguably undeserved, sentencing benefit for the useless assistance he provided to the authorities. In this renewed application the applicantdid not raise any new grounds of appeal but merely repeated the grounds relied on at his leave application. These grounds were found not to have any merit by the Single Judge in a careful and thorough judgment. The applicant’s grounds were not improved by repetition before us and we were satisfied that this was an appropriate case in which we should make a direction for two months’ loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

Disposition

22. For these reasons we refused the applicant’s renewed application, dismissed his appeal against his sentence and directed that two months of the time he has spent in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.

(Ian McWalters)	(Anthea Pang)
Justice of Appeal	Judge of the Court of First Instance

Ms Lily Yip PP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] Macrae VP. See HKSAR v Lam Yiu Ming[2019] HKCA 1456.

[2] [2009] 2 HKC 197

[3] Appeal Bundle, page 8L-M.

[4] HKSAR v Lau Yiu Ming[2019] HKCA 1456, at [20].

CACC 92/2019

[2019] HKCA 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 92 OF 2019

(ON APPEAL FROM HCCC NO 190 OF 2018)

________________________

BETWEEN

	HKSAR	Respondent
	and
	LAU Yiu-ming (劉耀明)	Applicant

________________________

Before:

Hon Macrae VP in Court

Date of Hearing:	20 December 2019
Date of Judgment:	20 December 2019

________________________

J U D G M E N T

________________________

1. The applicant faced two charges of trafficking in a dangerous drug, namely 55.9 grammes of a mixture containing 45.4 grammes of heroin hydrochloride (Charge 1), and 692.17 grammes of a mixture containing 562.01 grammes of heroin hydrochloride (Charge 2) respectively; contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having pleaded guilty to both charges in the magistrates’ court, the applicant was committed to the High Court for sentence. On 1 March 2019, he was sentenced by Madam Justice Toh (“the judge”) to a total term of 13 years and 4 months’ imprisonment.

2. By a Form XI Notice filed on 21 March 2019, the applicant seeks leave to appeal against sentence.

The Summary of Facts

3. On 1 August 2017, at 8:45 pm, whilst the applicant was walking out from an address in Larch Street, Tai Kok Tsui, Kowloon, he was stopped by police officers and taken to the staircase of the 1^st floor of the premises for a search. In his underpants were found two packets of suspected dangerous drugs, the subject matter of Charge 1. Upon arrest and caution, the applicant claimed that the “white powder” was for his personal consumption.

4. With a key seized from the applicant on his person, he was taken to his residence on the 6^th floor of the building for a search. In a rucksack on a bed were found the following items (the mixture in items (a) – (e) collectively forming the subject matter of Charge 2):

(a)  One packet containing 351 grammes of a mixture containing 285 grammes of heroin hydrochloride;
(b)  One packet containing 297 grammes of a mixture containing 242 grammes of heroin hydrochloride;
(c)  One plastic bag containing 24.3 grammes of a mixture containing 19.3 grammes of heroin hydrochloride;
(d)  One plastic bag containing 16.3 grammes of a mixture containing 12.9 grammes of heroin hydrochloride;
(e)  One plastic bag containing 3.57 grammes of a mixture containing 2.81 grammes of heroin hydrochloride;
(f)  2 sets of electronic scales; and
(g)  Some empty transparent re-sealable plastic bags.

5. Upon further arrest and caution, the applicant accepted that the “white powder” belonged to him.

6. In a subsequent video-recorded interview, the applicant said that he possessed the dangerous drugs found in his rucksack for the purpose of trafficking, claiming also that he had been selling dangerous drugs for some two months, for which he had earned a total of $260,000.

7. When pleading guilty, the applicant accepted that he was in possession of the entirety of the dangerous drugs in both charges for trafficking, for which he was expecting to earn $80,000 to $100,000.

8. The retail value of the dangerous drugs in both charges were estimated at $475,024.

The applicant’s background

9. The applicant was 47 years of age at the time of sentence. He had 21 previous convictions in 15 separate court appearances, including five offences of trafficking in dangerous drugs.

Sentencing

10. The judge noted that the applicable guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR vAbdallah [2009] 2 HKC 197, in respect of the trafficking of between 600 and 1,200 grammes of heroin narcotic, stipulated a starting point of 20 to 23 years’ imprisonment. By adding the quantity of narcotic in both charges together, amounting to 607.41 grammes, the judge took an overall starting point of 20 years’ imprisonment, which she then decided not to enhance for the applicant’s repeated record of trafficking in dangerous drugs. She also said that she had borne in mind the matters disclosed in mitigation during proceedings in camera, which if not of any use to the authorities at least indicated “a certain amount of remorse”.

11. The judge then gave the applicant a full one-third discount for his timely pleas of guilty. In the result, she passed a sentence of 13 years and 4 months’ imprisonment.

12. In addressing the two charges, the judge particularised the individual starting points, and their resulting sentences, which she ordered to run wholly concurrently with each other, namely:

(a) Charge 1: 6 years’ starting point, reduced by one-third to 4 years’ imprisonment.
(b) Charge 2: 20 years’ starting point, reduced by one-third to 13 years and 4 months’ imprisonment.

Grounds of appeal; and the respondent’s initial response

13. In his homemade submissions attached to his Form XI Notice, the applicant stated that, since he was remanded in Lai Chi Kok Reception Centre on 3 August 2017, he had provided information to the authorities but did not ultimately receive any discount on his sentence. In particular, he stated that he had provided specific information to the ICAC. He criticised his counsel for taking the view that the information provided to the ICAC was not useful, and for not relying on such information as mitigation; whilst at the same time accepting that “ICAC officers had advised [him] not to disclose the particulars of the case to anyone nor tell anyone that [he] had been in contact with ICAC officers including lawyers…”.

14. On 2 July 2019, the Registrar of Criminal Appeals, Master Cheung, directed the respondent to inform the court whether the matters stated in the applicant’s Form XI Notice had been fully raised in the sentencing proceedings, and whether the applicant’s assistance had been of any value. In response to the Registrar’s directions, Mr Derek Lau, on behalf of the Department of Justice, in a letter dated 19 August 2019, stated that the judge had been informed that, on 10 December 2018, the applicant had provided a non-prejudicial statement to the police, but nothing had ultimately come of it. Furthermore, during mitigation before the judge, counsel for the applicant had not persisted in seeking a reduction of sentence on the basis of the applicant’s assertions made to the ICAC. For the purpose of this appeal, the respondent, represented by Ms Lily Yip, has reiterated that none of the information or assistance referred to above was of any practical value to the authorities.

15. In his homemade submissions filed with the court on 30 August 2019, which are not marked as confidential, the applicant has repeated his assertions made to the ICAC, specifying the involvement of a particular individual. The applicant has contended that the usefulness of his information to the ICAC should have been determined by the court, and not by his counsel alone.

16. In his letter filed with the court on 12 September 2019, the English translation of which runs to eleven pages, the applicant has made further allegations, although most of them were a repeat of his previous allegations. I shall nevertheless briefly summarise his additional allegations:

(a) He was trafficking in an unusually large quantity of drugs, which was ten times as much as the usual quantity he had trafficked for the same person on many previous occasions, because that person had asked him to keep the drugs in his residence on a temporary basis.
(b) His confessions in his video-recorded interview were improperly obtained by police officers who promised him that his girlfriend (who was arrested in his residence) would be released on bail. The police officers also rushed the interview and hence the name of the person he had named was not mentioned at all.

Respondent’s submissions

17. Ms Yip has submitted that since the applicant did not render any assistance of practical use to the authorities, he should not be entitled to a further discount beyond the one-third discount for his pleas of guilty. She referred to the investigation diary of the ICAC, which showed that the applicant had been interviewed by the ICAC on 25 August, 4 September, 19 October 2017, 27 February and 28 September 2018 respectively and was informed of the investigation outcome at the last interview. In addition, a letter dated 12 December 2018, sent from the ICAC to the applicant’s solicitors, stated that the applicant had “only elaborated his complaint verbally and declined to provide any written statement…”. This appears to be the reason why the respondent considered that his information was devoid of practical value.

18. Ms Yip also submitted that neither the starting point nor the resulting sentence could be criticised as manifestly excessive.

Consideration

19. There can be no complaint about the individual or overall starting points adopted by the judge in the present case. They were entirely in line with the relevant sentencing guidelines. Indeed, the applicant may consider himself fortunate that the judge did not enhance that starting point for the fact that these were repeated offences, the applicant having been previously convicted of five different offences of trafficking in dangerous drugs, two of them in the High Court in 2009.

20. As for the purported assistance to the authorities, the fact is that it has not proved of any practical use at all. Moreover, the judge was aware of that fact at the time of sentencing by way of the letter from the ICAC dated 12 December 2018, to which I have referred. From the material made available to me, I cannot see that the authorities can be criticised for that assessment. And nor can the applicant’s counsel. He did not make the decision that the information was of no practical use: the authorities did. Yet, notwithstanding that it was of no practical use, the judge nevertheless decided that the applicant had exhibited “a certain amount of remorse” by giving the information and, for that reason, did not enhance the starting point for his repeated trafficking convictions. That was perhaps generous in the circumstances, but it lay within her sentencing discretion to do so. Accordingly, the applicant did in fact derive some benefit from the fact of providing information, valueless though it was. He was able to avoid a substantial enhancement for being a repeated offender of serious offences of drug trafficking, which enhancement could well have been in the region of 12 to 18 months’ imprisonment.

21. I can see no reasonable grounds of appeal and no merit whatsoever in the attack on the applicant’s counsel. I should also add that by his complaint concerning his video-recorded interview, the applicant is not seeking to appeal against his conviction, which was the result of his pleading guilty whilst being legally represented. The application is accordingly refused.

22. I should advise the applicant that he has the right to renew his application for leave to appeal against sentence to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

	(Andrew Macrae)
	Vice President

Ms Lily Yip PP, of the Department of Justice, for the Respondent

The Applicant appeared in person

HKSAR v. LAU YIU MING

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