HKSAR v. TSOI NGA NGA

HCCC 141/2022 [2023] HKCFI 1152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE CRIMINAL CASE NO 141 OF 2022 Transcript of the audio recording of the ruling in the case of Hong Kong Special Administrative Region v Tsoi Nga-nga, charged with trafficking in dangerous drugs, before Sir Brian Keith, Deputy Judge of the High Court Date: 28 February 2023 at 9.42 am Present: Ms Grace Chan, Senior Public Prosecutor of the Department of Justice, for the Hong Kong Special Administrative Region Mr Nelson Hon-wan Lam, instructed by CMK Lawyers, assigned by the Director of Legal Aid, for the accused ***** (Proceedings before 11.19 am not required) COURT: The prosecution has asked me to increase your sentence. I am not prepared to do that. Please sit down while I explain briefly why I am not doing that. The prosecution asks me to review the defendant’s sentence. As I have just told the defendant, I am not prepared to do that. The basis on which the prosecution asks me to increase the sentence is that I gave insufficient consideration to the fact that the defendant was trafficking in more than one drug. The prosecution does not suggest that my starting point of 7½ years’ imprisonment, had I been sentencing the defendant for trafficking in each of the drugs alone, was inappropriate. They say, in effect, that the enhancement of my starting point to 8 years’ imprisonment for the fact that I was sentencing the defendant for both heroin

and ice was insufficient. MS CHAN: I do -- may I just -- I do apologise, my Lord. I am saying that the calculation of 7 years 6 months is incorrect in terms of the tariff guidelines. COURT: I’m sorry. Let’s start again. I increased -- I said 7½ years for each drug. MS CHAN: For each drug? COURT: 7½ for each. And I’d gone up from 7 to 7½ years to take into account the fact that the defendant was not at the lowest level of culpability, so that was why I went from 7 to 7½ for each. Then I had to factor into the equation the fact that I was sentencing her, not for trafficking in one drug, but for trafficking in two. That’s where I went from 7½ to 8 years. Your criticism therefore has to be that I should have gone up higher than 8. MS CHAN: Yes, from the combined approach which the Court of Appeal has suggested us to follow, they have a specific calculation. COURT: No, they haven’t suggested anything. They just said that there are ways of cross-checking whether the figure that you arrive at is appropriate. MS CHAN: Yes. COURT: I know the three tests: the absurdity test, the conversion test and the ratio test. But they aren’t tests set in concrete. What is set in concrete is the need to make sure that you don’t sentence overall for a variety of drugs by concentrating solely on what the appropriate sentence would be if you were sentencing for each drug individually. MS CHAN: Yes, your

Honour. Yes, but... COURT: I’ll carry on from where I was. MS CHAN: Yes. COURT: I repeat that ultimately the prosecution objects to the enhancement of my starting point to only 8 years’ imprisonment for the fact that I was sentencing her for both heroin and ice. I do not agree. I acknowledge that the calculations of both the prosecution and the defence suggest an enhancement to an overall starting point of either 8 years and 4 months or 8 years and 5 months imprisonment. I therefore acknowledge that the enhancement to 8 years’ imprisonment was relatively modest. But in all the circumstances of the case which I set out in my sentencing remarks, I took the view that only a modest enhancement was necessary, in particular that at this stage in her life, the defendant appears to me to stand at crossroads. I took the view that a marginally more lenient sentence might result in there being a better chance of her putting her criminal life behind her when she is ultimately released. It is important to remember that sentencing is not a purely mechanical and mathematical exercise. It is an art in which the court is trying to do its best to reflect a whole variety of different factors. If it was a purely mathematical and mechanical exercise, we would have robots performing the function rather than judges. Although I respect the prosecution’s view that my sentence was lenient, I am not prepared to change it. If the prosecution takes the view that it was so lenient that it should be reviewed by an appellate court, it should make an application for a review. It goes without saying that I do not encourage it to take that course. Court rises - 11.29 am 28 February 2023