HKSAR v. LUI SIU PONG , JIMMY

CACC 26/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2013

(ON APPEAL FROM HCCC NO. 137 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the Court):

Introduction

1.  The applicant faced trial in the High Court before Deputy High Court Judge A Pang, as she then was, on 4 January 2013.  He was arraigned on an indictment containing three counts.  The first count was conspiracy to manufacture a dangerous drug, namely cocaine, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.  The second count was conspiracy to traffic in a dangerous drug, again cocaine, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and section 159A of the Crimes Ordinance, Cap 200.  In the third count the applicant was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and this charge was in respect of an amount of 27.32 grammes of a solid containing 25.26 grammes of cocaine hydrochloride. In the first and second counts the applicant’s co-conspirators were named as Lai Ka‑chun (“Lai”) and “a male person known as “Ah B””.

2.  The applicant had originally indicated a plea of not guilty to all three counts on the indictment and so 4 January 2013 was the date on which his trial was scheduled to proceed.  However, on that day he pleaded guilty to the second and third counts and the first count was ordered to be left on the file and not proceeded with without the leave of the Court.  The co-conspirator Lai had been assisting the police and would have been a witness for the prosecution at the applicant’s trial.  Both the co-conspirator Lai and the applicant then fell to be sentenced by the judge.

3.  In respect of the second count the applicant was sentenced to a period of 16 years’ imprisonment and in respect of the third count a period of 4 years’ imprisonment.  The judge ordered that the sentence of 4 years for count three be served concurrently with the sentence for the second count.  Thus, the applicant was sentenced to a total period of imprisonment of 16 years.  He now applies for leave to appeal against sentence.

The Background to the Case

4.  On 2 September 2011 the police intercepted the co-conspirator Lai as he was emerging from a flat in Sheung Shui Centre.  The flat was unfurnished and was empty except for one of the rooms which was set up for the purpose of manufacturing crack cocaine.  The police found paraphernalia such as measuring cups, measuring glass, metal pots, two electronic furnaces, gloves, metal spoons, electronic scale and other implements and equipment for manufacturing and packaging dangerous drugs. There was in addition a total of 954.07 grammes a powder containing 895.13 grammes of cocaine hydrochloride found at the scene.  From the first, the co-conspirator Lai admitted that he was manufacturing crack cocaine and when he appeared at the Magistracy he was committed for sentence to the High Court on a substantive count of manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

5.  On the same day that Lai was arrested the police intercepted the applicant at a shopping arcade in Ngau Tau Kok, Kowloon.  Upon searching a black sling bag that he was carrying the police found a quantity of cocaine that was the subject ultimately of the third count.  In respect of this quantity of cocaine the applicant admitted that he was taking it to someone for a person whom he called “Ah Chun” and from whom he expected to receive a $150 reward for his act of couriering.  In a subsequent video-taped caution interview the applicant confirmed the comment he made at the time of his arrest that he was acting as a courier for this person “Ah Chun” and would receive a reward of $150 for every quantity of drugs he delivered.  The drugs seized from his bag were subsequently analysed by the Government Chemist and found to be 27.32 grammes of a solid containing 25.26 grammes of cocaine hydrochloride.

6.  A scientific investigation of the premise at Sheung Shui where Lai was manufacturing crack cocaine revealed the presence of the applicant’s DNA on a pair of gloves.  There were also found at these premises some personal items, such as a towel and clothing, belonging to the applicant.  This evidence linked the applicant to the premises.

7.  The Summary of Facts, which the applicant admitted for the purpose of sentencing, revealed that the co-conspirator Lai started to work for the person “Ah B” on 2 July 2011 and on that day he was introduced to the applicant who was an acquaintance of “Ah B”.  The applicant would deliver to Lai the cocaine block from which he would manufacture the crack cocaine. After Lai had completed the manufacturing process, he would package them into smaller bags of around 25 grammes each and “Ah B” would then instruct the applicant to deliver this cocaine.  On average Lai would cook 9 bags of cocaine for the applicant to deliver and for each bag of cocaine delivered, the applicant would be paid $150 by “Ah B”.

The Applicant’s Mitigation at Trial

8.  At the time of his conviction the applicant was aged 26 and was a single man with a 5 year-old daughter.  He had been educated up to Form 2 level and had previously worked as a vehicle attendant and driver.  He had a significant criminal record but only for minor matters, having been before the Court on six previous occasions with a total of 13 convictions.  Two of the convictions were for “possession of a dangerous drug” offences, while one was “possession of equipment fit for injecting or inhaling dangerous drugs”. He had been appearing before the Court from the age of 16 years and had been treated with probation, fines and Drug Addiction Treatment Centre orders. The only convictions for which he received a sentence of imprisonment occurred in 2008 and related to the taking of a motor vehicle without authority and theft for which he was sentenced to 2 months’ imprisonment.

9.  It was submitted on his behalf that the third count should be seen as simply a part of the second count, as indeed it was, and that the sentence for the third count should be ordered to run concurrently with the sentence for the second count.  It was also said on his behalf that he was neither the mastermind of this criminal conspiracy nor the instigator of it.  It was also said that he only played a minor role in this criminal enterprise and only received a small amount of money for each act of couriering.

10.  In terms of the actual sentence his counsel argued that the amount of the drugs was only 895 grammes which brought the applicant within the 600‑1,200 grammes band as laid down in the case of HKSAR v Abdallah [2009] 2 HKLRD 437. For amounts of cocaine within this band the Court of Appeal said that the sentence should be 20-23 years’ imprisonment.  His counsel urged the Court to adopt a starting point at the lower end of that band in order to reflect the quantity of drugs, the low level involvement of the applicant and the small amount of money that he was getting for his conspiratorial assistance.

The Reasons for Sentence

11.  After setting out the background and the facts of the case, the judge proceeded to discuss the mitigation of both the co-conspirator Lai and the applicant.  She then proceeded to direct herself on the relevant sentencing principles referring to the case of R v Cheung Wai Kwong & Another [1997] HKLRD 344 where the Court of Appeal observed at 348 B:

“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”

12.  She also identified the relevant sentencing factors in assessing the gravity of the manufacturing offence and noted the different roles of the two offenders before her; the co-conspirator Lai being the manufacturer of the drugs and the applicant being assigned merely the role as courier.  She also noted that the quantity of drugs found at the time of the police raid was 895.13 grammes.

13.  Having considered all the relevant facts, she concluded that an appropriate starting point for the co-conspirator Lai in respect of the manufacturing cocaine count was 24 years’ imprisonment.  She gave him credit for his plea of guilty and for his willingness to assist the police and prosecution in testifying against the applicant.  She expressed her conviction, and no doubt she was right, that the agreement of Lai to testify against the applicant was a major motivating fact in causing the applicant to plead guilty.  She thereupon gave Lai a total reduction of about 45% to take account of his plea and his assistance to the police.  The final sentence for Lai then became 13 years’ imprisonment.

14.  For the applicant she noted the sentencing tariff as laid down in Abdallah of 20‑23 years’ imprisonment for trafficking between 600‑1,200 grammes of cocaine.  She thereupon adopted for the applicant a starting point of 24 years’ imprisonment.  She said that she arrived at this figure “after having taken into account the fact that the conspiracy had lasted for about 2 months; that the 2^nd defendant would deliver about 25 grammes of cocaine each time; and that there was a total of about 900 grammes of cocaine hydrochloride found in the premises at the time when the police entered.”

15.  In respect of the third count she followed the guidelines laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370 and adopted a starting point of 6 years’ imprisonment.  She gave the applicant a one-third discount to reflect his plea of guilty and then imposed sentences of 16 years’ imprisonment for Count 2 and 4 years’ imprisonment for Count 3.  She said she would treat both the second and third counts as arising from the same set of facts and so ordered the terms for these two counts to run concurrently with each other.

The Grounds of Appeal

16.  The applicant is unrepresented and no grounds of appeal have been filed on his behalf.  In a part of his Form XI he said “(I feel) aggrieved at the sentence passed as the terms of imprisonment is too long.  Therefore. (I) apply for leave to appeal”.

17.  Before us today he has elaborated on his complaint by saying that whilst in custody he has encountered other prisoners who have received lower sentences of imprisonment for drug trafficking and he cannot understand why he received a sentence as high as 24 years as the starting point.  He has also indicated that he did not think that he had been trafficking for as long as was alleged in the conspiracy.

18.  In respect of these complaints that the applicant has raised before us today, we can quickly dispose of them.  The sentences imposed by courts in relation to drug trafficking depend very heavily upon the nature of the drug and the quantity being trafficked.  Inevitably, every person convicted of drug trafficking will receive a different sentence from others depending upon these two factors.  In respect of his complaint that he didn’t traffick as long as was alleged, we note the particulars of the charge to which he pleaded guilty and we note the Summary of Facts which he admitted.  The charge refers to a period of 2 months and in the Summary of Facts he admitted that he had known the co-conspirator Lai since 2 July 2011.

Discussion

19.  In respect of the third count the quantity of drugs involved 25.26 grammes of cocaine hydrochloride.  Under the guidelines of Lau Tak Ming as confirmed in Abdallah the appropriate sentencing band for this quantity is 5‑8 years’ imprisonment which covers quantities of 10‑50 grammes of cocaine.  The judge’s identification of 6 years as the appropriate starting point cannot be faulted.  It follows, therefore, that the sentence of 4 years’ imprisonment is perfectly correct as is the judge’s order that it be served concurrently with the second count as it is clearly an overt act of the conspiracy that is particularized in the second count.

20.  The only real issue in this case is whether the applicant has been properly sentenced for the second count.  In this respect we note that, notwithstanding that the judge directed herself that manufacturing is a far more serious offence than trafficking, she has adopted the same starting point for both the manufacturer, Lai, and the trafficker, the applicant.

21.  Initially, this was of some concern to us for what Lai and the applicant admitted was that they were approached by “Ah B” to assist him in his drug trafficking activities.  Lai was to be his “cook” and, in the premises provided and set up for him, he was to manufacture crack cocaine from cocaine base.  The applicant was then to deliver Lai’s finished product in accordance with Ah B’s instructions.  In these circumstances it seemed, at first glance, odd that the judge should adopt the same starting point for their sentences.

22.  However, it is quite clear that there is a good reason for this.  The explanation lies in the different charge that each offender faced.  Lai was charged only with the substantive offence of manufacturing a dangerous drug being the 895.13 grammes seized by the police on 2^nd September 2011 when they raided the flat in which he cooked the cocaine.  It was an offence occurring on one day only.  The applicant, however, was charged with a conspiracy to traffic in cocaine over a 2 month period.  That is why the judge adopted a starting point, 24 years’ imprisonment, above the sentencing band, 20‑23 years’ imprisonment, appropriate for the quantity of cocaine found in Lai’s flat.  This was the correct starting point for this very serious offence and we can see no basis for interfering with it.  Given the different offences which Lai and the applicant faced, the applicant cannot have a disparity of sentence complaint flowing from the fact that the starting point adopted by the judge for him was not less than that which she adopted for Lai.

23.  We see no merit in anything said to us by the applicant and we dismiss his application for leave to appeal his sentence.