HKSAR v. LAU HING FAI

CACC 43/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 43 OF 2017

(ON APPEAL FROM HCCC 18 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.  On 7 March 2016, the applicant appeared before Deputy High Court Judge Bokhary (“the judge”) and confirmed his guilty plea to a single count of unlawfully trafficking on 10 June 2014 in 1.9 kilogrammes of a crystalline solid containing 1.87 kilogrammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for which he had been committed for sentence. The sentencing hearing did not conclude on this day but was adjourned to a future date. On 15 March 2016, the applicant’s sentencing hearing resumed and he was sentenced by the judge to a term of 12 years’ imprisonment.

2.  On 24 February 2017, the applicant filed a notice of application for leave to appeal against sentence out of time (Form XI) supported by an affirmation. 

3.  At the hearing of the application we granted the applicant the extension of time he sought and allowed the application for leave to appeal. We said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the offence

4.  The Summary of Facts which the applicant admitted and which was used for the purpose of his sentencing revealed that he arrived at Lok Ma Chau Control Point on 10 June 2014 at about 20:50 hours.  He was intercepted by Customs officers and was found to be in possession of the dangerous drugs that are the subject of the charge.  The drugs were packed inside two plastic bags which were put inside a sling bag that was placed in his rucksack.

5.  The applicant was arrested and under caution he admitted that the drugs were “two kilogrammes” of Ice and that he was helping a person named “Ah Lai” to deliver the Ice for a reward of HK$10,000. 

6.  In a subsequent interview, the applicant made full admissions to trafficking.  He said that he had owed tens of thousands of dollars to “Ah Lai” for almost three years and that “Ah Lai” had offered him a chance to bring Ice from the Mainland into Hong Kong in lieu of repayment of the loan.  After the applicant agreed to this proposal, “Ah Lai” arranged for him to collect the Ice from an unknown man in Shenzhen which he then carried across the border. 

7.  The estimated retail value of the seized dangerous drug was around HK$1,083,000.

Post-Arrest Assistance

8.  Whilst the applicant was in custody after his arrest, he received a telephone call from “Ah Lai” to arrange delivery of the drugs.  He agreed to participate in a controlled delivery operation conducted by the Customs and Excise officers. This was successful and led to the prosecution of another person against whom the applicant agreed to testify.  This person’s trial was HCCC 95/2015 and was due to commence on 7 March 2016.  Prior to the applicant giving evidence in this trial it was necessary for him to confirm his plea and be convicted of the trafficking offence.

9.  The applicant’s plea took place in the morning of 7 March prior to the empanelment of the jury in HCCC 95/2015.  On this occasion he confirmed his plea of guilty on which he had been committed for sentence and admitted the Summary of Facts which was to be used for his sentencing.  After the applicant’s Antecedent Statement and criminal record were tendered, Mr Christopher Grounds, who appeared for the applicant, applied to adjourn the sentencing hearing until the conclusion of HCCC 95/2015.  HCCC95/2015 was the trial of the person against whom the applicant had agreed to testify.

The money laundering offence

10.  After being arrested for the drug trafficking offence, the applicant was remanded in custody.  Whilst on remand he was additionally charged with an offence of money laundering which was unrelated to the drug trafficking offence.  This took place on 14 September 2015.  On 14 December 2015, he pleaded guilty to this offence and on 15 February 2016, he was sentenced to 6 months’ imprisonment for it.  Because he was on remand for this offence from 14 September 2015, the 6 months’ imprisonment sentence commenced to run from this date.  According to the Correctional Services Department, this sentence came to an end on 12 March 2016. 

The mitigation

11.  On 15 March 2016 when the applicant’s sentencing hearing resumed, Mr Grounds addressed the court in mitigation and informed the judge that the applicant was 58 years old at the time of his sentence.  He is married, and has two daughters, a son and a grandson.  He had come to Hong Kong from the Mainland in 1978 and whilst in the Mainland he had worked as a farmer.  

12.  From 1978 to about 1984, he worked as a hawker selling clothes in Temple Street.  He then became a renovation worker but he suffers from heart disease and this stopped him from working full time in about 2009.  From April 2013 onwards, he has been doing light work for about two hours per day. 

13.  Medical Reports confirmed that the applicant suffers from a heart condition and a letter from Queen Elizabeth Hospital stated that “this patient was under our care for end-stage heart failure”.  He had also previously suffered a stroke, as a consequence of which he has limited movement in one of his hands.  Mr Grounds portrayed the applicant as a person who may not complete his sentence because of his poor health and asked the court to be merciful when determining the appropriate starting point. 

14.  Mr Grounds then referred the court to the post-arrest assistance which the applicant had provided to Customs and Excise officers.  He had not only been fully cooperative with the officers in making full admissions at the first available opportunity, but he had also participated in a controlled delivery operation and eventually testified against another person who was arrested as a result of this operation.  Mr Grounds submitted that the applicant’s starting point should be discounted by at least 45% to 50% but as the applicant had also testified against the arrested person Mr Grounds urged the court to grant him a 55% discount.

15.  Mr Grounds then turned to the applicant’s criminal record and referred to the 6 months’ imprisonment sentence that had been imposed for the money laundering offence and this led to the following exchange with the judge:

“MR GROUNDS: So it looks like that’s still being served at the moment.

COURT: Yes.

MR GROUNDS: In terms -- I’ve got one authority on totality.

COURT: Yes.

MR GROUNDS: My Lady, in this particular case, we have a very high starting point which I’ll come to in a moment. This is a relatively short sentence, 6 months. The principle is that...

COURT: So you urge me to order that sentence to run...

MR GROUNDS: Concurrently.

COURT: ...concurrently...

MR GROUNDS: That’s it.

COURT: ...with the present offence.

MR GROUNDS: That’s it.

COURT: Yes.

MR GROUNDS: Because it’s -- if one looks at 6 months, with a starting point which we’re talking over 20 years, it pales into insignificance.

COURT:  Yes.”

16.  In conclusion, Mr Grounds referred the judge to the applicant’s cooperation, his post-arrest assistance, his guilty plea and his medical condition and urged the court to impose a merciful and lenient sentence.

The judge’s Reasons for Sentence

17.  Having considered the quantity of the dangerous drug involved and the mitigation advanced on behalf of the applicant, the judge adopted a starting point of 23 years’ imprisonment which she then enhanced by 2 years to take account of the presence of the aggravating factor of the drugs having been imported into Hong Kong.  This resulted in a final starting point of 25 years’ imprisonment. 

18.  The judge then turned to the discount to be awarded to the applicant for all the matters advanced in mitigation.  Taking into account the applicant’s guilty plea, his cooperation with the Customs officers in making admissions, his participation in a controlled delivery operation and the fact that he had testified against another person, the judge granted a discount slightly in excess of 50% to the applicant.  This resulted in a final sentence of 12 years’ imprisonment. 

19.  The judge addressed the totality of the applicant’s sentence as she believed that he was still serving the sentence of 6 months’ imprisonment for the money laundering offence.  The judge said:

“You were sentenced to 6 months’ imprisonment for an offence of conspiracy to dealing with property known or believed to represent proceeds of indictable offence on 15 February of this year.

In all the circumstances and having regard to the principle of totality, I order that that sentence of 6 months to run concurrently with the 12 years’ imprisonment which I have imposed upon you today.

I therefore sentence you to 12 years’ imprisonment and I make the order for that 6 months’ imprisonment to run concurrently with the 12 years’ imprisonment.”

Post-Sentence events

20.  On 15 March 2016 the Commissioner of Correctional Services wrote to the Registrar of the High Court in which he raised the following query:

“According to the Certificate of Sentence, there was remarked ‘The 6 months’ imprisonment under case no KT/3445/15 to be run concurrently with the sentence of Case No HCCC18/2015’ however the case in KT3445/2015 which was sentenced on 15.2.2016 (6 months) was completed and already released on 12.3.2016. (Due to he was remand since 14.09.2015 in that case) As there was no case to concurrently with HCCC18/2015, we would treated the total sentence (12 years) to be started on the sentence date, and his earliest date of release will fell on 06.12.2022, please confirmed the case or any further direction from Your court.”

21.  In response to this query the clerk to the judge replied:

“2. The memo has been placed before Deputy High Court Judge V. Bokhary and Her Ladyship made the following direction:

‘That fact was not brought to the attention of the Court.  In these circumstances, Court confirms that to be the case.’”

22.  In a letter to the Legal Aid Department dated 28 April 2017, the Chief Superintendent of Stanley Prison explained how it came about that the sentence for the money laundering offence was served prior to the imposition of the sentence for the drug trafficking offence and as a consequence of which there was no existing sentence with which the drug trafficking sentence could run concurrently.  This had to do with the operation of section 67A of the Criminal Procedure Ordinance, Cap 221 which provides that the length of any sentence of imprisonment imposed on a person “shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed. …”

The application for an extension of time

23.  The Form XI and affirmation were filed with the High Court on 24 February 2017, some 10 months out of time.  In his affirmation which the applicant filed with the court in support of his application for leave to appeal out of time, he stated the reason for his delay in filing his application for leave to appeal was that he had initially filed an application for legal aid for a judicial review, and it was only after this legal aid application was refused in January 2017 that he was advised to apply for leave to appeal against sentence.  Attached to the affirmation is a letter from the Director of Legal Aid dated 11 January 2017 which refused his application for a judicial review and advised him to file a criminal appeal against his sentence.  It is unclear when he first applied to the Legal Aid Department for legal aid for a judicial review.

The grounds of appeal against sentence

24.  In his Perfected Grounds of Appeal Mr Osmond Lam, counsel for the applicant, advanced one ground of appeal, namely that the sentence of 12 years should be reduced to 11 years and 6 months.  This ground of appeal argues that:

(a) in making a concurrent sentence order, the judge had an overall intention that the applicant should serve only 11 years and 6 months’ imprisonment and this intention of the judge should be given full effect;

(b) the applicant had a rightful and legitimate expectation that the final sentence would be that of 11 years and 6 months’ imprisonment and any administrative error is not his fault; and

(c) the sentence of 12 years’ imprisonment should be reduced to address the unfortunate unfairness that has transpired in the present case.

25.  In support of his argument that the judge intended to impose a sentence of only 11 years and 6 months’ imprisonment rather than 12 years’ imprisonment, Mr Lam relied on the chronology of events set out earlier in this judgment.

26.  For the judge’s intention, Mr Lam referred to the comments of the judge in her Reasons for Sentence which are quoted in paragraph 19 of this judgment.  Mr Lam asserted that these comments clearly indicated that the judge intended to give the applicantcredit for the time already served.  In light of this, Mr Lam submitted that the court should quash the original sentence and in its place, reduce the sentence to that of 11 years and 6 months’ imprisonment.

27.  Mr Lam referred to the case of R v Tyron Joseph Jonsyn[1], where the court, in dealing with a situation where a defendant had been led to believe that a period of remand custody would reduce the period he spent serving his sentence, considered that the appellant had a “legitimate expectation” that his “custodial term should be reduced so as to achieve the intended result in terms of release”[2]. 

28.  Mr Lam also pointed out that in the case of R v Davies[3], a contrary position had been taken by the English Court of Appeal in giving little weight in its reasoning to the length of the term which the appellant himself had actually expected at the time of sentencing.  However, Mr Lam distinguished the factual situation in Davies (where the actual length of the sentence was shorter than intended due to the operation of a statutory provision, of which both the sentencing judge and counsel were unaware) from the present case (where the actual length of the sentence is longer than intended due to the operation of a statutory provision). 

29.  Mr Lam referred to the case of HKSAR v Cheung Lai Sing Dickson[4], which he argued is analogous to the situation of the applicant.  In this case the sentencing judge was unaware that an earlier sentence had been completed as a result of which, the applicant lost the benefit of credit for time which he had previously served.  The court was of the view that “…the applicant has justification for feeling aggrieved” and concluded that “we are satisfied that this is a proper case in which to intervene because of the unfairness which would undoubtedly be occasioned to the applicant if we were not to do so.”

30.  The Court of Appeal adopted a similar approach in HKSAR v Ho Kwok Ho & Another[5], where Cheung Lai Sing was cited with approval and applied in order to address the unfairness that had transpired. 

31.  In the present case, Mr Lam submitted that through no fault of his own, the applicant was given an expectation that he would serve a total sentence for both offences of only 12 years’ imprisonment. He urged the court to adopt the same approach as in Cheung Lai Sing by substituting the sentence of 12 years’ imprisonment with a sentence of 11 years and 6 months’ imprisonment.

The respondent’s submissions

32.  Ms Audrey Parwani, Ag Senior Public Prosecutor, for the respondent, in replying to the grounds of appeal, submitted that the clear intention of the judge was to impose an imprisonment term of 12 years to take effect from the date of sentence, not 11 years and 6 months as alleged.  The judge was misinformed that the earlier sentence was subsisting and therefore she ordered the earlier sentence to run concurrently with the present sentence. 

33.  Ms Parwani relied on the memo of the judge’s clerk dated 23 March 2016 in reply to the Correctional Services Department’s enquiry of 15 March 2016 that is quoted in paragraph 21 of this judgment.

34.  Ms Parwani submitted that if the judge’s intention was not that the applicantshould be subjected to 12 years’ imprisonment for the present offence alone, she could have given further directions upon enquiry, namely, a shorter term of imprisonment for the present offence.  Hence, the judge’s clear intention was that the present offence was to run for 12 years’ imprisonment from the date of sentence and not earlier.

35.  Ms Parwani argued that the cases of Cheung Lai Sing and Ho Kwok Ho are distinguishable from the present case both factually and as to the issue involved and that the English case of Jonsyn should be limited to its own facts. 

36.  Ms Parwani further argued that the applicant in the present situation should not have any legitimate expectation.  The error was discovered by the Correctional Services Department within the same day and the court had also confirmed the sentence within the week.  This is not a situation where the applicant had been told specifically by the judge how his time spent on remand would be calculated or reduced. 

37.  Ms Parwani also submitted that in the present case, the sentence imposed was not inappropriate; if anything it was lenient. There was nothing to suggest that the judge would have imposed a shorter sentence had she realized that the applicant had already served his earlier sentence.  The judge would also have been empowered to impose a consecutive sentence given there was no nexus between the two offences. 

38.  Ms Parwani submitted that this court ought to intervene only where there was a clear error by the judge rendering the sentence imposed so unjust that it ought to be adjusted.  Here, the sentence was properly considered and the sentencing principles were properly applied in line with authority. 

Discussion: The application for an extension of time

39.  The applicant has satisfactorily explained the reason for the delay in filing his Application for Leave to Appeal and so we grant him the extension of time he needs to pursue his appeal.

Discussion: The application for leave to appeal

40.  Essentially, this appeal is argued on the basis of fairness to the applicant.  It is claimed that as a result of the way the sentencing hearing was conducted it was the clear intention of the judge that the applicant should serve a total sentence of 12 years’ imprisonment for both offences.  This clear intention of the judge gave rise to an expectation by the applicant that that would be all the imprisonment he would serve.  That expectation has been frustrated by circumstances beyond his control and so now he has a legitimate grievance in respect of his sentence.

41.  This court is, in effect, being asked to impose a sentence which would implement the intention of the judge.  It, therefore, becomes necessary for this court to determine whether it is possible to ascertain the intention of the judge.  If it is possible, and if the intention was as is asserted by the applicant, then it becomes necessary for this court to satisfy itself that such an intention was properly within the sentencing discretion of the judge.  For, if it was not, this court would not repeat an error of the judge just to assuage the aggrieved feelings of the applicant.  If the intention of the judge was properly within her sentencing discretion then it seems to us that, absent some compelling reason to the contrary, fairness and justice would dictate that we honour it.

42.  We are satisfied that it is clear from the way the mitigation address proceeded that Mr Grounds misinformed the court as to the position in respect of the money laundering sentence.  His calculation was out by three days.  Believing that this sentence was still being served he invited the judge to order that the drug trafficking sentence should run concurrently with it.  The judge accepted this invitation and so ordered.

43.  It follows, therefore, that the judge intended that the total sentence that the applicant should serve for both offences was 12 years’ imprisonment.  However, because the money laundering sentence had already been served the applicant will end up serving a total sentence for both offences of 12 years 6 months’ imprisonment.  The delay in the imposition of the drug trafficking sentence, which delay was entirely attributable to the applicant testifying for the prosecution, cost the applicant a further 6 months.

44.  Turning to the issue of whether the order that the drug trafficking sentence should be served concurrently with the money laundering sentence, we are satisfied that this was a matter properly within the judge’s sentencing discretion.  Clearly, as a matter of legal principle, the two offences being different, it was open to the judge to order partially consecutive sentences. But, whether she would make such an order brought into play the principle of totality and whether, in these circumstances, a lengthy sentence should be made consecutive to a short sentence of imprisonment.  Relevant to these issues were the mitigating considerations advanced by Mr Grounds in respect of the applicant’s age, state of health and assistance to the authorities.  All of this was ventilated before the judge who was swayed to adopt a lenient and compassionate course.  This she was entitled to do.  We can see nothing to suggest that her sentencing discretion miscarried.  

45.  That being so, no issue of legal principle arises in the present case.  The only question for this court is whether in these circumstances the applicant would have a justifiable sense of grievance and whether fairness and justice requires us to intervene.  We are satisfied that he would have such grievance and that we should intervene.

46.  A similar situation arose in the case of HKSAR v Ata Asaf[6]. There Macrae JA said that the judge’s intention in respect of sentence should be honoured and the best way of achieving this was for the Court of Appeal to alter the sentence imposed by the judge.  We can see no compelling reason for not honouring the judge’s intention in respect of this applicant.  Adopting a similar approach in respect of this applicant to that adopted in Ata Asaf we allow the application, set aside the sentence of the judge and in substitution for it sentence the applicant to 11 years 6 months’ imprisonment.

Conclusion

47.  For these reasons we granted the applicant his extension of time, allowed the application for leave to appeal, set aside the sentence of the judge and imposed on the applicant a sentence of 11 years 6 months’ imprisonment.