HKSAR v. TANG TAK CHUN

CACC 388/2015 AND CACC 389/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 388 AND 389 OF 2015

(ON APPEAL FROM HCCC NOS. 324 AND 325 OF 2015)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  Following his pleas of guilty in the magistracy on 31 July 2015, the applicant was committed to the High Court for sentence in respect of two separate cases, namely HCCC 324/2015 (to which CACC 388/2015 relates) and HCCC 325/2015 (to which CACC 389/2015 relates). On 12 October 2015, the applicant confirmed his pleas of guilty in respect of both cases before Deputy Judge Beeson (“the judge”), the two cases having been consolidated for the purposes of sentencing.

2.  So far as CACC 388/2015 was concerned, the applicant had pleaded guilty to one count of conspiracy to traffic in a dangerous drug, the quantity of which, although not spelt out in the Particulars of the count, was 1,266.66 grammes of a solid containing 660.39 grammes of cocaine narcotic, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200.  So far as CACC 389/2015 was concerned, the applicant had pleaded guilty to one count of unlawfully trafficking in 2,152.32 grammes of a solid and a powder containing 1,497.3 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

3.  On 30 October 2015, the applicant was sentenced to an overall term of 25 years and 4 months’ imprisonment in respect of both cases. On 10 November 2015, he filed a Notice of application for leave to appeal against sentence (Form XI) in respect of each case.

4.  On 2 June 2016, we granted the applicant leave to appeal against sentence, allowed his appeal and substituted a sentence of 20 years’ imprisonment in place of the 25 years and 4 months’ imprisonment passed on him by the judge, saying that we would give reasons for our decision in due course.  These are our reasons.

The prosecution case (CACC 388/2015)

5.  On 18 September 2013, the applicant instructed female Cheung So-sze (“Cheung”), who was retained by the applicant to clean the applicant’s various flats from time to time, to go and attend to a flat at Room B, 38/F, Hoi Kwun Mansion, Riviera Gardens, Tsuen Wan (“the Flat”) on the following day.  The applicant told Cheung that he would leave the key to the Flat inside one of the freezers of a nearby supermarket. Hence, on 19 September 2013, Cheung proceeded to the supermarket where she found the key as instructed.

6.  The applicant also instructed Cheung to buy three boxes of moon cakes and to pack cocaine, which was stored in the Flat, into the moon cake boxes.  Cheung followed the applicant’s instructions, took the cocaine from a drawer in the Flat and when the three boxes proved inadequate for the quantity of cocaine, she put what remained into another cardboard box.  Having done so, the applicant then instructed Cheung by telephone to take all of the cocaine to the podium and leave it there for someone to collect.  However, Cheung was intercepted by police officers when she left the Flat.

7.  The three moon cake boxes were confirmed by the Government Chemist to contain 670.49 grammes of a solid containing 330.44 grammes of cocaine in 28 packets.  The fourth box, namely the extra cardboard box, was found to contain 596.17 grammes of a solid containing 329.95 grammes of cocaine in 26 packets.  The estimated street value of the total quantity of cocaine was HK$1,797,391.  The applicant admitted that he and Cheung conspired to traffic in the cocaine.

The prosecution case (CACC 389/2015)

8.  In the late evening of 3 December 2014, a team of police officers were carrying out an operation in the vicinity of a village house situated at No. 7, 10^th Street, Tai Wai Village, Tai Wai, New Territories, when they saw two males enter the building one after the other.  When the two males later emerged together from the Village House at around 11:43 pm the same day, they were intercepted by police officers, who found one of them holding a plastic bag containing two paper bags.  Inside the paper bags were 28 transparent plastic bags containing 516 grammes of a solid containing 355 grammes of cocaine narcotic.

9.  The 1^st floor premises of the building were immediately raided by police officers, where they found the applicant alone.  On the floor of a small room within the premises, police officers found, inter alia, dangerous drugs including 65 pellets containing 1,020 grammes of a solid containing 715 grammes of cocaine, 25 pieces of a solid weighing 371 grammes containing 257 grammes of cocaine and 243.3 grammes of a solid containing 169.97 grammes of cocaine; and drug paraphernalia including two electronic scales, a metal container and a metal spoon, a plastic bag, a ceramic container, a metal sifter, a pair of scissors, a metal knife and a ceramic knife.  All of the items contained traces of cocaine, some of which were measurable.  Further, police officers found two ceramic containers, a metal sifter and two spoons with traces of cocaine in the kitchen of the premises.

10.  Under caution, the applicant accepted, inter alia, that he had been caught red-handed but said that the cocaine had nothing to do with the two males who had earlier been intercepted when leaving the premises.

11.  In a subsequent video-recorded interview, the applicant admitted that he had obtained the dangerous drugs from a friend called “Ah Wai”, and had taken the dangerous drugs to the premises where he was asked to package the cocaine.  The two men had come by for a chat.  As the applicant was later instructed by “Ah Wai” to deliver the cocaine to someone at the local convenience store, the applicant asked the two men to take along the two paper bags, which had earlier been packed with cocaine, since they were intending to buy snacks at the convenience store.  The applicant said the two men knew nothing about the contents of the two paper bags.

12.  The estimated retail value of the cocaine in this count at the time of seizure was HK$2,058,000.  The applicant admitted that he was trafficking in the cocaine seized.

Mitigation

13.  The applicant was 36 years old at the time of his sentence.  He had 17 previous convictions involving 19 offences, including five convictions for possession of dangerous drugs and one conviction for trafficking in dangerous drugs, for which he had received a sentence of 3 years and 4 months’ imprisonment on a plea of guilty in the District Court.  He was single but resided with his girlfriend and a 1 year-old child.

14.  It was submitted on the applicant’s behalf that the principal mitigation in his favour was his early pleas of guilty.  Further, the court was told that the applicant had occasionally made donations to child sponsorships, which demonstrated a different side of his character and indicated that he was “not overly bad”.  The court was urged to have proper regard to the overall totality of sentence.

Reasons for sentence

15.  The judge considered that the two offences were each extremely serious but that they were unconnected crimes, separated in time by some 15 months.  The assisting personnel, modus operandi and quantities of dangerous drug concerned were all different.  Accordingly, she held that there was “no really justifiable basis for ordering the sentences to run concurrently, whether in whole or in part”.  The judge also concluded that the applicant was “much more than a courier”, and that it was clear that he was “if not the actual owner of the drugs, at least a high ranking administrator of a profitable drugs enterprise”.  He had also failed to learn the lesson of his earlier conviction and sentence for trafficking.

16.  Having considered the drug quantities involved and that there was no cogent mitigation other than the applicant’s guilty pleas, the judge adopted a starting point of 20 years’ imprisonment in respect of the conspiracy offence in CACC 388/2015.  According the applicant a full one-third discount, she imposed a sentence of 13 years and 4 months’ imprisonment.  In respect of CACC 389/2015, the judge took a starting point of 24 years’ imprisonment and, having again accorded him a full one-third discount, a sentence of 16 years’ imprisonment was imposed.  She then ordered that 12 years of the sentence in CACC 389/2015 should run consecutively to the sentence in CACC 388/2015, with 4 years being ordered to run concurrently, thus making an overall term of 25 years and 4 months’ imprisonment.

Grounds of appeal against sentence

17.  In his perfected grounds of appeal against sentence, filed on the applicant’s behalf, Mr McGowan, counsel for the applicant at this appeal, essentially submits: firstly, that the judge erred in not taking into account the “notional” sentence for the combined weight of the dangerous drugs in the two offences, as if they been charged in one count; secondly, since the notional sentence after trial for the sentence she did pass would have been 38 years’ imprisonment, the judge evidently did not approach the exercise of totality properly, which had resulted in a manifestly excessive sentence.

18.  Mr McGowan accepted the propriety of each individual sentence.  However, he submitted that, since the total quantity of the dangerous drugs involved in both cases was 2,157.69 grammes of cocaine narcotic, which fell within the 1,200 to 4000 grammes of narcotic in the guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437, ordinarily meriting a starting point of 23 years to 26 years’ imprisonment, there had to be some adjustment of the two sentences in accordance with the principle of totality.  He pointed to the case of HKSAR v Ng Muk Kam (unrep., CACC 685/1993), where the Court of Appeal had varied a sentence after trial for trafficking in some 306 kilogrammes of heroin from one of life imprisonment to 35 years’ imprisonment, a starting point which was less than the one effectively adopted in the present case.

19.  Mr McGowan did, however, realistically acknowledge that the two cases before us were quite separate and that the applicant had continued with his trafficking enterprise when he must have known that Cheung had been arrested as a result of the first offence.  He also accepted that the applicant did have a relevant previous conviction for trafficking in dangerous drugs.  That alone would have justified a further 2 years’ imprisonment in respect of the second offence, which involved almost 1.5 kilogrammes of cocaine narcotic: see HKSAR v Abdallah (supra), at para’s 42-43.

20.  Mr McGowan also wisely did not take issue with the judge’s finding that the applicant was obviously higher up the chain than a courier, given that he was responsible for arranging different couriers in each case from two separate premises in respect of cocaine worth almost HK$4 million.  However, he suggested that there would still be someone above the applicant in that chain of command.

The respondent’s submissions

21.  In reply to Ground 1, Mr Ira Lui SPP, on behalf of the respondent, submitted that the determination of the appropriate overall sentence in cases involving multiple counts of drug trafficking would include several considerations, and the combined narcotic quantity was only one of the factors to be borne in mind.  Other factors to be considered would include the multiplicity of offences and the applicant’s previous record for similar offences.  Furthermore, the Court of Appeal has previously rejected similar invitations to sentence on the basis of the aggregate amount of dangerous drugs where separate and distinct offences are concerned: see HKSAR v Lau Kwok-chun (unrep., CACC 303/2001), at para’s 24-25; HKSAR v Ng Yau-kau (unrep., CACC 374/2007), at para’s 9-10; and HKSAR v Lui Wai-kam (unrep., CACC 400/2009), at para’s 7-11 and 21.

22.  In respect of Ground 2, notwithstanding that there were cogent reasons for the court to impose sentences with a substantial consecutive element, Mr Lui nevertheless conceded that the consecutive element in fact imposed, namely 12 years of the sentence in CACC 389/2015, was arguably excessive and out of line with the consecutive terms imposed in other cases involving multiple trafficking offences.  In the circumstances, he accepted that there might be room for a downward adjustment of the total sentence of the applicant and did not oppose the application for leave to appeal against sentence.

Consideration

23.  In our judgment, Mr Lui’s concession was entirely proper and correctly made.  These two very serious cases involved wholly separate and distinct offences committed some 15 months apart.  Yet, notwithstanding that he must have known the police were looking for him after Cheung’s arrest, the applicant continued to traffick in very large quantities of cocaine.  The applicant was clearly someone higher up the chain of command of this dangerous drugs enterprise, as the judge rightly found, with access to significant funding to finance this pernicious trade; furthermore, he had a previous conviction for trafficking in dangerous drugs, from which he had obviously learned no lessons.  In these circumstances, the judge was correct to order a substantial consecutive element as between the two cases, resulting in an overall sentence outside the guidelines appropriate to the aggregated quantity involved.

24.  The individual sentences were not in themselves objectionable.  The question for us, however, is whether, for all those aggravating features, the starting point and the resulting sentence were too high. We think that they were. However brazen and cynical the applicant’s persistent involvement in large-scale trafficking of dangerous drugs, a notional starting point of 38 years’ imprisonment, resulting in an overall sentence after plea of 25 years and 4 months’ imprisonment for the two offences, was too great.

25.  We consider in the circumstances of this particular case that an overall starting point for both offences when taken together should have been 30 years’ imprisonment, which for the applicant’s timely pleas of guilty would have merited a full one-third discount, resulting in a total sentence of 20 years’ imprisonment.  We propose to achieve that result by leaving the sentences for each offence undisturbed but ordering that 6 years and 8 months (rather than 12 years) of the sentence in CACC 389/2015 be ordered to run consecutively to the 13 years and 4 months’ sentence in CACC 388/2015, with the remainder of the sentence in CACC 389/2015 being ordered to run concurrently with the sentence in CACC 388/2015; thus making a total sentence of 20 years’ imprisonment in place of 25 years and 4 months’ imprisonment.

Conclusion

26.  Accordingly, we give the applicant leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allow his appeal to the extent indicated.