HKSAR v. CHEUNG MAN CHOI

CACC 43/2016 and
CACC 50/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2016

(ON APPEAL FROM HCCC NO. 427 OF 2015)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 50 OF 2016

(ON APPEAL FROM HCCC NO. 344 OF 2015)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant (Cheung Man-choi) was involved in two cases, HCCC 344 of 2015 (to which CACC 50/2016 relates) and HCCC 427 of 2015 (to which CACC 43/2016 relates). 

2.  On 28 December 2015, the applicant appeared before Deputy High Court Judge Campbell-Moffat SC (as she then was) in HCCC 344/2015 and pleaded guilty to trafficking in a dangerous drug, involving 456 grammes of a solid containing 164 grammes of cocaine, 0.06 gramme of a powder containing cocaine and 5.2 grammes of a crystalline solid containing 5.11 grammes of “ice”.  The matter was adjourned to 27 January 2016.

3.  On 27 January 2016, the applicant also appeared before the judge in HCCC 427/2015 and further pleaded guilty to conspiracy to traffic in a dangerous drug involving 4.02 kilogrammes of “ice” with a street value of HK$1.75 million.  The two cases were consolidated for the purpose of sentencing.

4.  In respect of the two cases, HCCC 344 and 427 of 2015, the applicant was sentenced to the respective terms of 8 years and 8 months’ imprisonment, and 18 years and 8 months’ imprisonment with 4 years and 8 months of the sentence in HCCC 344 of 2015 to run consecutively to the sentence in HCCC 427 of 2015, making a total sentence of 23 years and 4 months’ imprisonment.

5.  Represented by Mr HY Wong, the applicant sought leave to appeal against sentence.  At the end of the hearing, we dismissed the application and indicated that we would hand down our reasons in due course.  This we now do.

The Facts

HCCC 344 of 2015

6.  On 19 January 2015, Police Officers mounted an anti-narcotics operation near a flat in Greenwood Garden, Shatin (the flat).  The applicant and a 15-year-old boy (Wong) were subsequently arrested.  A car-key, three mobile phones and cash of $60,697 were found inside the applicant’s shoulder bag whereas two mobile phones, a bunch of keys and cash of $3,716.20 were found inside Wong’s pocket.

7.  When the applicant and Wong were being taken to the flat by police officers for a house search, they put up struggles and tried to flee.  In the course of the struggle, the applicant dropped a bunch of keys on the ground and they were seized by a police officer.  They were subdued and arrested.

8.  With the keys seized from Wong and the applicant, police officers managed to enter the flat to conduct a search.  Cocaine and “ice”, the subject matters of the charge were found together with 2 lighters, one electronic scale, an inhaling device, a plastic bottle containing a liquid with traces of “ice” and a large number of resealable plastic bags.  The street values of the 164 grammes of cocaine and 5.11 grammes of “ice” were $445,571 and $2,210 respectively.

9.  It was accepted that the applicant and Wong had been occupying the flat since October 2014.

HCCC 427 of 2015

10.  On 28 August 2014, the applicant was together with Chan YT (Chan) and Yau KY (Yau) at the Hong Kong International Airport.  Yau gave Chan her passport and some cash in Yen and Chan then went to check in her suitcase.  Chan was intercepted and her suitcase was found to contain 4.02 kilogrammes of “ice” with a street value of HK$1.75 million.  Chan admitted that she was carrying the drugs to Japan for a reward.

11.  Chan and Yau were subsequently arrested and charged with trafficking in a dangerous drug and they both pleaded guilty.  According to Yau, the applicant was his triad brother and when he was in financial difficulty in July 2014, the applicant suggested that Yau should join him to traffic in “ice”.

12.  On the applicant’s advice, Yau got hold of Chan who, having been briefed the details of the drug trafficking by the applicant and Yau, also agreed to participate.  It was agreed that Chan would receive HK$50,000 and Yau would receive HK$15,000 for taking the drugs to Japan.

13.  On the applicant’s instruction, a trip for Chan to go to Japan was arranged and the drugs were collected from a villa in Yuen Long and stored in a hotel room where they were packed in Chan’s suitcase to be taken to Japan.

14.  On 28 August 2014, Chan, Yau and the applicant went to the Hong Kong International Airport on board the applicant’s Mercedes Benz with Chan’s suitcase containing 4.02 kilogrammes of “ice”.

15.  When Chan was about to check in, the applicant and Yau left, but they were subsequently arrested.  The applicant accepted that he was involved in a conspiracy to traffic in a dangerous drug with Yau and Chan.

The Applicant’s Background and Mitigation

16.  The applicant was born in January 1989 with little education and he had five previous convictions, three of assault and two of possession of dangerous drug.  The applicant was a drug addict.  It was suggested that the applicant was unable to obtain a stable employment and he assisted triad leader to traffic in drugs.  It was further suggested that the applicant was remorseful and that he had tried to assist police to arrest other drug pushers.

The Judge’s Approach

17.  In HCCC 344 of 2015, the judge took the view that the 5.11 grammes of “ice” was intended to be used by Wong and others and therefore treated it as “a matter of possession”.  Taking into consideration the question of latent risk, the judge adopted a starting point of 21 months’ imprisonment.  As for the 164 grammes of cocaine, the judge adopted a starting point of 11 years.

18.  The judge considered a total starting point of 12 years appropriate, but decided to enhance it by one year to 13 years because the applicant had recruited Wong, a “young and vulnerable” person to carry out drug trafficking.  The judge reduced the 13-year starting point by one-third on account of the guilty plea and imposed a sentence of 8 years and 8 months’ imprisonment.

19.  In HCCC 427 of 2015, the judge, relying on HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437, adopted a starting point of 26 years, but enhanced it by two years because of the international element.  The judge reduced the 28-year starting point by one-third on account of the guilty plea and sentenced the applicant to 18 years and 8 months’ imprisonment.

20.  On totality principle, the judge ordered 4 years and 8 months of the sentence in HCCC 344 of 2015 to be served consecutively to the sentence in HCCC 427 of 2015, making a total sentence 23 years and 4 months. The total sentence represents a notional starting point of 35 years’ imprisonment.

Grounds of Appeal

21.  Mr Wong, on behalf of the applicant, initially raised no query with the individual sentences imposed in HCCC 344 and 427 of 2015, but argued that the total sentence was manifestly excessive.

22.  He then suggested that the initial total starting point of 12 years adopted by the judge in HCCC 344/2015 was excessive.  He suggested that if the 5.11 grammes of “ice” were to be taken as cocaine and when the total quantity was (164 grammes + 5.11 grammes) 169.11 grammes, the starting point should be 11 years and 3 months on a purely mathematical calculation.

23.  Mr Wong also argued that there was insufficient evidence to support the judge’s finding that the applicant had recruited Wong and therefore he suggested that the judge was wrong to have enhanced the starting point by one year on the basis that the applicant had recruited a minor in his drug trafficking activity.

24.  In so far as the judge had enhanced the 26-year starting point by 2 years in HCCC 427/2015, Mr Wong suggested that it was not a lenient sentence.  Mr Wong pointed out that at the time of committing the offence, the applicant had no previous conviction of trafficking in dangerous drugs.  Mr Wong further suggested that the judge was wrong to accept what Yau said in his statement that the applicant was the mastermind.

25.  Mr Wong pointed out that the total quantity of dangerous drugs involved in both cases were 164 grammes of cocaine and 4.02 kilogrammes of “ice”.  He suggested that if the case had been one offence of trafficking and applying the guidelines in Abdallah (supra), the total starting point should be at the lower end of the 26-30 years’ band.

26.  Mr Wong relied on HKSAR v Tang Tak Chun (CACC 388/2015 and CACC 389/2015) and R v Ng Muk Kam (CACC 685/1993) to support his contentions.

27.  Tang Tak Chun (Supra) concerned a defendant who had pleaded guilty in two separate offences, one of conspiracy to traffic in a dangerous drug involving 660.39 grammes of cocaine and one of trafficking in 1497.3 grammes of cocaine.  The defendant was sentenced to 25 years and 4 months’ imprisonment, representing a starting point of over 38 years.  On appeal, the Court of Appeal considered a starting point of 30 years’ imprisonment appropriate and reduced the sentence to 20 years’ imprisonment.  Mr Wong appeared to be suggesting that the same starting point should be adopted in the present case.

28.  In Ng Muk Kam (Supra), the Court of Appeal varied a sentence after trial for trafficking in 306 kilogrammes of heroin from one of life imprisonment to 35 years’ imprisonment.  Mr Wong pointed out that the quantity of dangerous drugs involved in the present case was much less than those in Ng Muk Kam and he urged this Court to reduce the applicant’s sentence.

Discussion

HCCC 344/2015

29.  In HKSAR v Ko Ka-hing [2009] 4 HKLRD 856, this Court (differently constituted) identified two different sentencing approaches when a defendant had trafficked in more than one type of dangerous drugs:

“(a) The first approach is the ‘individual approach’ where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount;

(b) The second approach is the ‘combined approach’ where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point…

(c) Where the ‘combined approach’ is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. On the other hand, if the two types of drugs are present in similar quantities, the quantity of the drug of greater potency will provide the basis for the starting point.

(d) As a rule of practice, where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the ‘combined approach’; where, on the other hand, the two drugs are disparate in quantity and potency, the ‘individual approach’ is to be preferred.

(e) The appropriate approach to be adopted is a matter of discretion for the sentencing court, to be exercised in light of the circumstances of the particular case.  No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point…”

30.  HCCC 344/2015 involved 164 grammes of cocaine and 5.11 grammes of “ice” and the “combined approach” was clearly the more appropriate approach to adopt and Mr Wong did not argue otherwise.  Mr Wong suggested that the appropriate starting point for trafficking in 169.11 grammes of the drugs (assuming they were all cocaine) would have been 11 years and 3 months’ imprisonment without realizing that the presence of another type of drug would be an aggravating factor.

31.  In our view, the presence of 5.11 grammes of “ice” should have attracted an additional 12 months’ imprisonment.

32.  The judge’s view that the 5.11 grammes of “ice” was intended to be used for self-consumption was a lenient one.  The applicant had pleaded guilty to trafficking in a dangerous drug, including the 5.11 grammes of “ice”.  Even if the judge was correct that the “ice” was intended to be consumed by Wong and others, the applicant, as a supplier of drug to the others, was trafficking and there was no valid basis for the judge to treat it as “a matter of possession.”

33.  Trafficking in 5.11 grammes of “ice” could have attracted a starting point of 5 years. (See AG v Ching Kwok Hung [1991] 2 HKLR 125) Trafficking in 164 grammes of cocaine alone could have attracted a starting point of over 11 years. (See R v Lau Tak Ming & Ors [1990] 2 HKLR 370)

34.  Mr Wong argued that there was no sufficient basis for the judge to conclude that the applicant had recruited Wong as his case was that he had never recruited Wong.  Whether or not the applicant had recruited Wong, the fact remained that he committed the offence with Wong.  The applicant was 25 and Wong was just 15, a minor (s 3 of the Interpretation and General Clauses Ordinance).  The applicant had been occupying the flat with Wong and was seen going in and out of the building with him.

35.  It was an irresistible inference that the applicant was making use of a minor in his drug trafficking activities.  S 56A of the Dangerous Drugs Ordinance expressly provides that the use of a minor in drug trafficking entitles the court to pass a more severe sentence.

36.  In HKSAR v Ng Hon Keung [2012] HKLRD 1017, this Court (differently constituted) observed at p 1022:

“In our view the provision under s 56A(2) will come into operation and the Court can enhance the sentence if a minor is involved in the commission of the offence irrespective of whether the defendant knows that he is dealing with a minor or not. Anyone who deals with dangerous drugs will have to bear the consequence of receiving an enhanced sentence if a minor is involved in the offence.”

37.  We must emphasize that the making use of a “young and vulnerable” person to carry out drug trafficking is a serious aggravating factor and any adult drug trafficker who recruited or made use of a minor to traffic in a dangerous drug will potentially face an even longer sentence.

38.  The total starting point of 13 years adopted by the judge, far from being manifestly excessive, was a lenient one.

HCCC 427/2015

39.  The applicant pleaded guilty to the charge of conspiring with Chan and Yau to traffic in a dangerous drug and he admitted the summary of facts including what Yau had said in his statement which implicated the applicant.  The applicant must be taken to have agreed to the contents of Yau’s statement and that the Court should sentence him on the basis of Yau’s statement.  Based on Yau’s statement, there could be no doubt that the applicant was indeed the mastermind.  Not only did he instruct Yau to recruit Chan to take the drug to Japan, he actually drove Chan and Yau to the Hong Kong International Airport in his Mercedes Benz to enable Chan to carry the dangerous drug to Japan.

40.  The case involved over 4 kilogrammes of “ice” and taking into consideration the international element and that the applicant was a mastermind, the applicant could have no legitimate complaint against the 28 years’ starting point. (See Tam Yi Chun, supra)

The Totality

41.  Having said this, we must of course not overlook the totality principle.

42.  Mr Wong suggested that as the total drugs involved in both cases were 164 grammes of cocaine and 4,020 grammes of “ice”, the 26 to 30 year band for trafficking in 4 kilogrammes to 15 kilogrammes of heroin/”ice” should apply.

43.  What Mr Wong had overlooked was that there were two incidents of trafficking over a period of about 5 months.  The drugs involved in the two incidents were different, one mainly of cocaine and the other of “ice”.  It was incorrect to suggest that the case should be dealt with as if it was one incident of trafficking in 164 grammes of cocaine and 4,020 grammes of “ice”.

44.  We wish to echo what was said by this Court in HKSAR v Ng Yau-kau and another (unreported CACC 374/2007):

“9. In circumstances such as those, where the drugs possessed by a defendant were part of a common stock and in his continuous possession, the fact that he has divided that stock so as, for example, to keep part of it on his person and the remainder in his premises should not result in a higher sentence than if he had kept the stock of drugs undivided: see HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42 and HKSAR v Yu Wang Tim (unreported), CACC 191/2002. In such circumstances, even where the defendant faces separate charges for each amount, the sentencing court should look to the total quantity of drugs in arriving at an overall starting point.

10. But where, as in the present case, there are separate incidents of actual trafficking, regardless of whether the undertaking of the second transaction was dependent on the successful completion of the first transaction, then different considerations apply.  It is not just the totality of drugs in the defendants’ possession which goes to the overall criminality of the offence, but also the separate acts of trafficking.  In cases such as the present the approach taken by the judge in adopting separate starting points and then arriving at a discounted sentence in respect of each offence was the correct approach.  Matters pertaining to the totality of sentence are then able to be taken into account and a proper totality arrived at by ordering the sentences to be served partly, at least, concurrently.  There was no error of principle in the judges’ sentencing approach…”

45.  In our view, the decision in Tang Tak-chun (supra) did not assist the applicant.  The Court of Appeal in Tang Tak-chun adopted a starting point of 30 years which is 5 years less than the notional starting point of 35 years adopted by the trial judge, but the case against the applicant was more serious in a number of aspects,

(1)   The total quantity of drugs was almost twice. (4,184 grammes as against 2,157 grammes in Tang Tak-chun),

(2)   The applicant, on two separate occasions, trafficked in two different types of drugs, cocaine and “ice” and not just one type as in Tang Tak-chun,

(3)   The applicant was clearly the mastermind and he had recruited Chan, Yau and made use of a 15-year old minor (Wong) in his drug trafficking activities, and

(4)   There is an international element and the applicant had actively, through Yau, arranged for Chan to carry a large quantity of “ice” to Japan.

46.  We could not ignore the fact that the applicant committed another serious case of drug trafficking involving 164 grammes of cocaine and 5.11 grammes of “ice” after he was suspected to be involved in a case of conspiracy to traffic in 4.02 kilogrammes of “ice”.  The applicant was clearly a professional drug trafficker.

47.  We were satisfied that this was a very bad case of its type and the total sentence of 23 years and 4 months, representing a notional starting point of 35 years’ imprisonment, though a stiff sentence, was not manifestly excessive.

48.  The application for leave to appeal against sentence was therefore dismissed.