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’ imprisonment.  The judge considered that a starting point of 10 years and 6 months’ imprisonment was appropriate in the present case.  However, the judge noted that the applicant had committed the offence that is the subject of count 1 whilst on bail for a possession of dangerous drug offence.  This she found was an aggravating factor which would justify her enhancing the starting point for sentence. 

23.  In fact, the judge had before her two matters relevant to her calculation of the applicant’s final sentence.  Once was the presence of this aggravating factor which would enhance her starting point.  The other was the applicant’s assistance to the authorities which would increase the discount to be awarded the applicant from this starting point.  The judge said she would simply treat both factors as cancelling each other out.  In her Reasons for Sentence, she said[2]:

“There is no other meaningful mitigation for this particular type of offending, save for your very early guilty plea. Other matters raised on the last occasion were not proceeded with by the Department of Justice, and any small discount I might have been minded to credit you with for your assistance is clearly offset by your attitude in breaching your bail. So I consider that the assistance and the breach cancel each other out.”

24.  After granting the applicant a one-third discount for his guilty plea, the sentence for count 1 became 7 years and 1 month’s imprisonment.

25.  For count 2, the judge said she would adopt a starting point of 12 months’ imprisonment but in this respect it is clear from her later comments that she meant 18 months for she went on to say that she would enhance her starting point by 3 months to take into account the latent risk of the drug being trafficked.  She then said that when the total starting point of 21 months’ imprisonment was discounted by one third to allow for the applicant’s guilty plea, the final sentence for count 2 would become 14 months’ imprisonment.

26.  The judge then turned to totality and to a consideration of whether any part of the sentence for count 2 should be ordered to be served consecutively to the sentence for count 1.  In resolving this issue she noted that if the sentences for counts 1 and 2 were combined the resulting total sentence would be 8 years and 3 months’ imprisonment.  But, if the applicant had been convicted of trafficking in all the Ice, the final sentence after a guilty plea would only have been 7 years and 4 months’ imprisonment.  Taking this factor into account and having regard to the totality of sentence, the judge ordered that only 2 months’ imprisonment for count 2 was to be served consecutively to the sentence for count 1, making a total sentence of 7 years and 3 months’ imprisonment.

The applicant’s grounds of appeal

27.  In his initial grounds of appeal attached to his Form XI, the applicant set out the following grounds of appeal against sentence:

(a) he pleaded guilty as soon as a prosecution was instituted against him;

(b) he had no similar criminal record;

(c) a defendant (Liu Ming Sze) in a recent case of trafficking in a dangerous drug received a sentence of 7 years 3 months’ imprisonment for a larger quantity of Ice (86 grammes);

(d) he had assisted the police to detect an offence and secure the conviction of the offender and so he should have his sentence reduced to reflect this assistance; and

(e) he provided information relating to another case while he was remanded in custody.  Even though his information was not pursued and he was not required to testify, his efforts in collecting and passing-on the information should not be completely ignored, particularly as he took a risk in obtaining this information.

28.  The applicant also wrote letters to the court dated 12 September 2016, 17 October 2016 and 23 May 2017.  In these letters he repeated his grounds of appeal and stated that they were true.

29.  At the hearing of his application the applicant simply repeated the points he had made in the materials he had earlier provided to the court.

The respondent’s submission

30.  In respect of Grounds 1 and 2, Mr Joe HC Hui, Public Prosecutor, for the respondent, submitted that the judge had acknowledged the applicant’s timely plea when considering the appropriate sentence and had intended to give him a full one third discount for that plea.  However, he accepted that a full one third discount of the starting point of 10 years 6 months’ imprisonment that the judge adopted for count 1 should have been 7 years’ imprisonment, on a strict arithmetical approach. 

31.  Regarding Ground 3, the respondent submitted that there was no merit in this ground as the Court of Appeal has repeatedly said that the mere fact that a defendant in another case has received a lighter sentence does not mean that the sentence under appeal is incorrect.

32.  In relation to Grounds 4 and 5, the respondent submitted that the judge had adequately taken into account the assistance rendered by the applicant.  Mr Hui relied on the Court of Final Appeal’s judgment in Z v HKSAR[3]for an authoritative statement of the relevant legal principles.

33.  It was confirmed by Mr Hui that the applicant had provided pre-arrest assistance to the police in regard to an offence which resulted in the apprehension and successful prosecution of the offender.  The applicant did not receive any sentencing discount for this assistance that he rendered to the police.

34.  Mr Hui accepted that the applicant was entitled to receive a sentencing discount for the assistance rendered by him in this case and submitted that the usual discount for assistance of this kind, where the applicant was not called upon to testify for the prosecution, was 40%.  As the applicant was granted the usual one-third discount for his guilty plea, the respondent submitted that the applicant could have received a further reduction of around 7%.

35.  The applicant also provided information to the police in another case awaiting trial.  However, the prosecution decided not to take any action on the applicant’s information.  Mr Hui submitted that given that the information provided by the applicant in this case had not yielded any fruitful result, no discount of sentence should be granted to him for it.

36.  Notwithstanding that no sentencing discount had been awarded the applicant in respect of his assistance in the first case, Mr Hui submitted that he was not entitled to a further 7% sentence reduction because it was offset by the fact that the applicant had breached his bail while committing the present offences. 

37.  Mr Hui submitted, therefore, that the sentence imposed by the judge was neither manifestly excessive nor wrong in principle and invited the court to dismiss the application for leave to appeal against sentence.

Discussion

38.  In respect of the discounted sentence for count 1 Mr Hui is correct in his maths.  A full one third discount from a starting point of 10 years 6 months’ imprisonment is 7 years and not 7 years 1 month.  Although it is clear the judge intended to give the applicant the benefit of a full one third discount, the reality is she did not.

39.  Furthermore, we do not agree with the broad brush approach of the judge of treating the aggravating and mitigating factors as simply cancelling each other out.

40.  Transparency in the sentencing process and fairness to the parties require that a judge proceed through each of the steps required by legal principle in order to arrive at an appropriate sentence. Only by doing so will the judge be seen to have arrived at her sentence through a reasoned process.

41.  Furthermore, when the judge said that the aggravating and mitigating factors cancelled each other out it is not clear to which mitigating factor she was referring. She was clearly referring to the applicant’s assistance to the authorities but it is unclear whether she was referring to both occasions of assistance or only to the latter occasion when the prosecution made no use of the information the applicant provided.  What the judge said is quoted at paragraph 23 of this judgment.  In the quoted passage she referred to an absence of “other meaningful mitigation” apart from the applicant’s guilty plea and then went on to refer to “a matter not proceeded with by the Department of Justice” saying that this matter would have prompted her to award the applicant only a small discount.  The language employed by the judge suggests very strongly that she was referring only to the assistance provided by the applicant on the second occasion and if this is right then she has failed to take into account the very valuable assistance provided by the applicant on the first occasion.

42.  For all these reasons we are satisfied that we must allow the appeal and sentence the applicant afresh.    

43.  This we shall now do.  No argument is taken by Mr Hui with the judge’s starting point of 10 years 6 months’ imprisonment. The applicant, however, relies on the case of HKSAR v Liu Ming Sze[4] to argue that his sentence should be lower.  In this case the judge was dealing with a defendant who pleaded guilty to trafficking in 86.01 grammes of Ice.  She adopted a starting point of 11½ years’ imprisonment which she then discounted by more than one third because she accepted that 10% of the drugs were for the defendant’s own consumption.  Her final sentence was 7 years 3 months’ imprisonment.  The defendant applied for leave to appeal his sentence but his application was refused by the Court of Appeal.  How this defendant was sentenced provides no assistance to the applicant in the present case.   

44.  No argument is taken with the judge’s decision not to treat the applicant’s criminal record as an aggravating factor. This decision might be said to reflect a generous attitude to this applicant but, in his special circumstances, it is well understandable and, in any event, was a matter within her sentencing discretion.  But, the judge did say she would treat the fact that count 1 was committed whilst the applicant was on bail for an offence of possession of a dangerous drug as an aggravating factor. This she was clearly entitled to do.  However, because of the broad brush approach adopted by her she did not quantify the amount by which she would have enhanced the sentence to allow for this aggravating factor. 

45.  The relevant sentencing principles on this issue of treating as an aggravating factor the fact that an offence was committed whilst on bail for another offence are set out in the judgment of this court in HKSAR v Leung Ting Fung & Anor[5].  However, that case, in its discussion of the legal principles, makes no reference to whether the bail is court bail or law enforcement agency bail.  The relevance of this is that, in the present case the applicant was only on police bail, not court granted bail, when he committed the count 1 offence.  The question is whether this makes any difference to the issue of enhancement. 

46.  In HKSAR v Cheung Kwok Leung[6] the court noted that the trial judge had incorrectly treated the applicant as having committed an offence whilst on court bail when in fact he had been on police bail.  The Court of Appeal, at paragraph 9 of its judgments, said in respect of this mistake:

“This difference in the nature of bail would not, in our view, have altered the Judge’s sentence.”

47.  In another decision of the Court of Appeal the issue received a more detailed consideration.  In HKSAR v Majid Muhammad[7] Lunn VP in giving the judgment of the court said at paragraph 23:

“There is no doubt that the commission of an offence whilst the defendant is on bail in respect of another alleged offence is a seriously aggravating factor in the commission of an offence which a judge may reflect in enhancing the starting point for sentence. That is so whether or not bail is granted by the police or by a court. It may be that the commission of an offence committed whilst on bail granted by a court is to be viewed more seriously, given that it is a public undertaking to the community through the court.”

48.  It is clear from the authorities that even if the bail is only police bail the fact that the bailed person committed an offence whilst on bail is still to be regarded as an aggravating factor.  The issue is not whether the sentence should be enhanced but, rather, by how much it should be enhanced.  In the present case the applicant later pleaded guilty to the possession offence for which he had been bailed and so he must have been aware of the likelihood of being prosecuted.  In those circumstances his conduct in engaging in trafficking in dangerous drugs, in the words of the Court of Appeal in the Leung Ting Fung case, demonstrates “in terms of the offence, … a serious disregard for the law and, in terms of the offender, it evidences a persistence in offending.”[8] We are of the view that in the circumstances of the present case and in respect of this offender a further period of 6 months’ imprisonment is an appropriate enhancement.  This results in a final starting point for count 1 of 11 years’ imprisonment.

49.  The second count was possession of Ice and was identical to the offence for which he was on bail.  It was accepted that the drugs the subject of the count were for his own consumption and this would suggest he lacked the will-power to control his drug use.  His commission of the offence was less likely due to him being a persistent offender and more likely due to him being drug dependent.  We are not minded, in these circumstances, to enhance the starting point for count 2.

50.  We can find no error in the judge’s determination that an appropriate starting point for count 2 is 18 months and that this figure should be enhanced by 3 months to take into account the latent risk of the drug being trafficked.  This brings the final starting point for count 2 to 21 months’ imprisonment. 

51.  The next issue that needs to be addressed is the discount that should be awarded the applicant from the respective final starting points for counts 1 and 2 to take account of the mitigating factors, namely the timely pleas of guilty and the assistance to the authorities.

52.  In accordance with the established case law, the one third discount for the pleas of guilty is increased to 40% for the first occasion that the applicant rendered assistance to the authorities.  The only issue is whether any further discount should be awarded to the applicant in respect of the second occasion that he provided assistance.  On this occasion he provided a witness statement which revealed a conspiracy to pervert the course of public justice by defendants in an impending trial. 

53.  Given the applicant’s criminal history the authorities looked to whether there might be independent evidence which supported the applicant’s allegations.  To the contrary, they found evidence which cast doubt on certain aspects of his allegations.  In those circumstances the respondent concluded that it could not act upon the applicant’s statement.  This was not a reflection upon the genuineness of the applicant’s attempt to render assistance but merely a realistic assessment of the state of the evidence.

54.  The established case law and consistent practice of the courts is not to award any discount for assistance which does bear any fruit.

55.  In these circumstances we are satisfied that the applicant is not entitled to any credit for the information he provided on the second occasion that he rendered assistance to the authorities.

56.  For all his assistance and for his guilty plea we allow the applicant a total sentencing discount of 40%.  When the final starting point for count 1 of 11 years’ imprisonment is reduced by 40% the sentence becomes 6 years 7 months’ imprisonment.  When the final starting point for count 2 of 21 months’ imprisonment is discounted by 40% the sentence becomes 12 months’ imprisonment.

57.  The question then arises whether any part of the sentence for count 2 should be served consecutively to the sentence for count 1.  The judge was alert to not imposing a total sentence that would have been greater than the sentence the applicant would have received if he had trafficked in the whole of the drugs.  To avoid such a situation arising she ordered that only 2 months of the sentence for count 2 should be served consecutively to the sentence for count 1. 

58.  This is in line with authority[9].  As long as the final total sentence is not greater than that which the applicant would have received for trafficking in the whole of the drugs then it is perfectly proper to impose a partially consecutive sentence.  Had the applicant been sentenced for trafficking in the whole amount of Ice he would have attracted a starting point of 11 years 1 months’ imprisonment which, when enhanced by 6 months for the aggravating factor of having been committed whilst on bail, becomes 11 years 7 months’ imprisonment.  When this is discounted by 40% the final sentence would be 6 years and 11 months’ imprisonment.  As the judge’s order that 2 months of the possession offence be served consecutively to the trafficking offence does not have that prohibited effect we are not minded to change that part of the judge’s order.

Conclusion

59.  For these reasons we allowed the application for leave to appeal and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal.  We set aside the sentence of the judge and imposed on the applicant sentences of 6 years 7 months’ imprisonment on count 1 and 12 months’ imprisonment on count 2.  We further ordered that 2 months of the sentence on count 2 be served consecutively to the sentence on count 1.  This makes a total sentence to be served by the applicant of 6 years 9 months’ imprisonment.

[1] [2014] 3 HKLRD 691

[2] AB 8C– E

[3] [2007] 2 HKC 265

[4] [2017] 1 HKLRD 297

[5] [2015] 1 HKC 290

[6] [2003] 3 HKLRD 542

[7] CACC 157/2015, unreported, 9 February 2017

[8] HKSAR v Leung Ting Fung & Anor [2015] 1 HKC 290 at 296I, paragraph 30.

[9] See HKSAR v Ip Yuet Ho [2008] 6 HKC 35