HKSAR v. CHAN WAI KONG

HCMA1057/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1057 OF 2000

(ON APPEAL FROM ESCC 3537 OF 2000)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was convicted on his own plea at Eastern Magistracy of trafficking in 97 milligrams of MDMA, commonly known as "Ecstasy", contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He was sentenced to four months' imprisonment.

2. The facts of the case were that the appellant supplied the drugs in the form of half a tablet to an undercover female police officer at the "Go Go Disco" in Gloucester Road, Wan Chai.

3. The first ground of appeal against sentence is that the learned magistrate failed to take into account that the appellant was entrapped into the commission of this offence. The matter arises in this way. The brief facts of the case to which the appellant agreed upon his plea of guilty on 25 September 2000 at the Eastern Magistracy were to the effect that the appellant approached PW1 and PW2, both female undercover police officers, at the Disco and offered the drugs to PW1 free of charge. Upon the appellant's plea of guilty on that day and before the matter was adjourned for background and Drug Addiction Treatment Centre Reports his counsel said in preliminary mitigation that the appellant would say that in fact the undercover agents asked the appellant for the drugs.

4. Upon the resumption of sentencing proceeding some two weeks later, on 9 October 2000, following the supply of requested reports, the appellant was represented by another counsel. On that occasion, the matter was also before another magistrate. That magistrate had the charge put afresh to the appellant, and the appellant again pleaded guilty and confirmed he had agreed the brief facts of the case. In other words, the sentencing procedure was effectively commenced ab initio. That was reflected in the full and thorough mitigation advanced on behalf of the appellant by his new counsel. Nowhere in that mitigation was there any specific reliance on entrapment as a basis for reduction of sentence. There was only general reference to reliance on the contents of the background report which had been provided. Those contents included a brief reference to the appellant's assertion to the reporting officer that the undercover officer at the disco had "requested for some ecstasy".

5. There the matter rested, it was not taken further before the magistrate, and so entrapment was not specifically relied upon by the appellant's counsel in mitigation at the time of sentencing. There was certainly no request for a Newton enquiry.

6. Indeed in his mitigation, counsel for the appellant seemed to accept that in large part the offence arose out of the appellant's own desire to gain the acquaintance of the undercover policewoman and to please or impress her.

7. Accordingly, in his Reasons for Sentence, the learned magistrate did not take into account any question of entrapment. In my view, he was entitled not to. As I say the matter of entrapment had not been expressly raised before him on 9 October 2000 when he sentenced the appellant.

8. It is true that before the other magistrate some two weeks earlier the counsel who represented the appellant at that time, before the case was adjourned for reports, had said the issue of entrapment would be raised in mitigation. But, in my view, that counsel was not doing anything more than telling the court that it was the appellant's intention at that time to raise the issue in due course. The precise words used on that occasion in that regard, were that the appellant "will say that in fact those undercover agents asked the Defendant for the drugs". Although that counsel went on to urge other matters upon the magistrate, the fact of entrapment had not been left before the court with any finality on that day.

9. Counsel representing the appellant at that time must have been aware that such an issue would not be acted upon by the court without either the agreement of the prosecution as to the facts of the matter which, unsurprisingly, was not forthcoming or a determination of the facts of the matter by the court following a Newton enquiry. In other words, the matter was effectively left unresolved when the case was adjourned on 25 September 2000 and that must have been known to the representatives of the appellant at that time.

10. On 9 October 2000, there was no further mention of entrapment. Counsel did not raise it. It has been argued before me that because there was reference, and as I say it was brief, in the background report to the undercover officers asking for ecstasy, then that effectively laid the issue of entrapment before the court for the purposes of sentencing on 9 October 2000.

11. Again I must disagree. As Lord Bingham, Chief Justice of Appeal said in R v. Tolera [1999] 1 Cr App R 25 at p.29 :

"It often happens that when a defendant describes the facts of an offence to a probation officer for purposes of a pre-sentence report, he gives an account which differs from that which emerges from the Crown case, usually by glossing over, omitting or misdescribing the more incriminating features of the offence. While the sentencing judge will read this part of the pre-sentence report, he will not in the ordinary way pay attention for purposes of sentence to any account of the crime given by the defendant to the probation officer where it conflicts with the Crown case. If the defendant wants to rely on such an account by asking the court to treat it as the basis of sentence, it is necessary that the defendant should expressly draw the relevant paragraphs to the attention of the court and ask that it be treated as the basis of sentence."

12. With those words I respectfully agree. Without the sentencing magistrate's attention being expressly drawn to that particular part of the Background Report relied upon in this regard by the appellant, he was entitled to ignore it as he did.

13. In short, as a general principle, it seems to me that where a defendant following his plea of guilty to an offence and agreement to brief facts presented to a court wishes to contradict any part of those facts for the purpose of mitigation, or to urge upon the sentencing court a particular view of those facts, the initiative must rest with him to expressly bring his opposition to a particular fact or his desire to rely upon that particular view of those facts to the attention of the sentencing court. It cannot avail him in the normal course to subsequently complain about the sentence imposed upon him by pointing out what happened or what was said in another court on a prior occasion. In my view, matters relied upon in mitigation by a defendant should be brought to the attention of the sentencing court. That is the responsibility of the defendant and those representing him.

14. There is nothing in this ground of appeal.

15. The appellant's second ground of appeal is that the learned magistrate failed to consider whether there was any suitable alternative to a custodial sentence. In this regard, Mr McGowan relied upon a passage in R v. Lee Tak Kwan (1998) 2 HKLRD 46 at p.55 that :

"At the lower levels, it will be necessary for the sentencer to make a careful assessment of the real criminality involved. For trafficking in very small quantities, immediate custodial sentences for first offenders may not always be necessary."

Before having arrived at his conclusion that a custodial sentence was appropriate, the learned magistrate had considered the appellant's clear record, stable working background and the small quantity of drug involved. He then went on to give three reasons why a custodial sentence was appropriate :

"After having considered all the circumstances, I was still of the opinion that the appellant should be sent to prison. My reasons were as follows :

1) Drug trafficking was afterall a serious offence.

2) An immediate imprisonment certainly had to be imposed in the case of drug trafficking for money. Even though someone supplied the drug only for getting acquainted with a woman, as the defendant did, he should still be sent to prison because of law-defying and irresponsible behaviour.

3) This sort of case prevails overwhelming. The court had to take it seriously and should not deal with them leniently."

16. Perhaps the strongest reason given by the learned magistrate was the prevalence of this sort of offence at places such as nightclubs, karaokes and, perhaps, what have been referred to as rave parties as he mentioned at the time of sentencing.

17. Further, the magistrate said, albeit in different words, trafficking is always serious and the supply of drugs in this case was to a stranger. It may well have been if the fact that the supply of drugs to a stranger or indeed the supply of drugs at a public bar had been absent, the magistrate's decision might have been different. But, in my view, the magistrate's determination that a custodial sentence was appropriate was a proper one. Perhaps the phrases "law-defying" and "irresponsible behaviour" used by the magistrate and criticised by Mr McGowan took the matter no further forward but I am sure that the magistrate had properly considered whether a custodial sentence was appropriate and there is nothing in this ground of appeal.

18. So far as the third ground of appeal is concerned, the learned magistrate took a starting point of six months' imprisonment. In his Reasons for Sentence, he said he took into account the appellant's plea of guilty in reducing the starting point to a sentence of four months' imprisonment. He made no mention of the appellant's previous good character, reflected in his clear record, in those reasons for sentence. On 9 October 2000, when he sentenced the appellant, however, he took the appellant's clear record into account in arriving at the starting point of sentence. That was a somewhat unusual course. In any event, he was not apparently referred to any particular authority to assist him with quantum.

19. In a recent case of R v. Tang Kwai Choi, MA57/2000, Gall J dealt with sentence regarding an organised sale of small amounts of ecstasy in nightclubs in Hong Kong. In respect of offences relating to the sale of 28 mg and 108 mg of ecstasy, Gall J held that starting points of sentence of three months' and four months' imprisonment were appropriate. That case, as I say, related to actual and organised sale of the drugs. The facts of the present case relate to the "one off" supply of 97 mg of drugs. It was not sold but given to the undercover officer for social reasons. The appellant was not a member of any organised trafficking activity, nor did he conduct such an activity himself. In my view, the starting point of sentence arrived at by the learned magistrate in those circumstances was too high. There was not sufficient consideration given to these aspects of the offence in assessing its total criminality. An appropriate starting point would have been three months' imprisonment. Taking into account both the plea of guilty of the appellant and his clear record, a sentence of six weeks' imprisonment would have been appropriate.

20. Accordingly, I allow the appeal against sentence to that extent. The sentence is set aside and substituted by a sentence of six weeks' imprisonment.