HKSAR v. CHAN KA SHING

[English Translation – 英譯本]

CACC 64/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 64 OF 2011

(ON APPEAL FROM HCCC NO. 405 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Yeung V-P (giving the judgment of the Court):

Introduction

1.  On 10^th August 2010 in the vicinity of G/F, No. 42B Sha Tin Wai Village (“the residence”), police found the Applicant (Chan Ka-shing) and a 15-year-old boy Wong Wing-tat (“WONG”). The Applicant opened an iron gate with a key and then entered the residence whereas WONG waited outside the door. One minute later, the Applicant appeared and handed a brown plastic bag to WONG and said a few words to him. WONG left right afterwards.

2.  Later, the Applicant and WONG were intercepted by the police. Police officer searched the Applicant and found 10 packets of cocaine with 155.91 grammes of powder inside containing 112 grammes of cocaine. The Applicant indicated that he helped someone to hand (them) to someone. Police officer also found 11 packets with 172.33 grammes of powder inside containing 117.27 grammes of cocaine from a room in the residence rented by the Applicant. The Applicant indicated again that he helped someone to carry the cocaine.

3.  The police officer also searched the brown plastic bag WONG held in his hand and found 10 packets with 156.54 grammes of powder inside containing 111.04 grammes of cocaine, and 12 boxes of soda powder.

4.  The street value of all of the above cocaine was about HK$500,000. The Applicant admitted that he followed the instruction of a person called “Lo Ng” (transliteration) and got a bag with cocaine inside and $1,000 as reward from someone at the Star Ferry and took the bag with cocaine inside to the residence. Later upon Lo Ng’s further instruction, he met WONG and handed 10 pellets of cocaine and a few boxes of soda powder to WONG.

5.  In relation to the above incident, the Applicant was charged with 3 counts of “Trafficking in a dangerous drug”. The dangerous drugs referred to in the 3 charges were namely, the 111.04 grammes of cocaine found on the person of WONG, the 112 grammes of cocaine found on the person of the Applicant and the 117.27 grammes of cocaine found in the residence. WONG was also charged with unlawful trafficking of the 111.04 grammes of cocaine found on him.

6.  On 16^th February 2011, the Applicant pleaded guilty to all the charges before Deputy High Court Judge Patrick Li. WONG also pleaded guilty to the charge against him. As a result, the Applicant was sentenced to a total of 12 years and 7 months’ imprisonment whereas WONG was sentenced to 6 years and 5 months’ imprisonment.

7.  The Applicant appeals against the sentences. He is now represented by Mr. Victor Cheung of Counsel to apply for leave to appeal against the sentences. 

The applicant’s background

8.  The Applicant was aged 18 at the time of offence and had turned 19 when being sentenced. He is single and has been educated up to Form 4. He had worked in fast food shop but was unemployed at the time of the offence. His father passed away many years ago and he lives with his elder brother, elder sister and mother. He did not have a criminal record. He indicated that he committed the offences due to financial difficulties and mixing with undesirable characters. He regrets the wrong doings.

The learned judge’s reasons for sentence

9.  In relation to all 3 charges each involving around 110 odd grammes of cocaine, the learned judge took 9 years and 8 months’ imprisonment as the starting point. He reduced the sentence by 39 months for the Applicant’s guilty plea to 77 months’ imprisonment. However, as he was of the view that the Applicant did use WONG, a minor aged 15, in the commission of the 1^st charge, so pursuant to section 56A(2) of the Dangerous Drugs Ordinance, he enhanced the sentence on the 1^st charge by 50% to 115 months.

10.  Based on the totality principle, the learned judge ordered that 18 months of the 2^nd and 3^rd charges to run consecutively to the 115 months of the 1^st charge, thus arriving at 151 months, that is, 12 years and 7 months’ imprisonment.

Grounds of appeal

11.  Mr. Cheung advanced a number of grounds of appeal. He pointed out that although the Prosecution did indicate in the pre-trial review hearing on 18^th January 2011 that they were considering applying for enhancement of sentence, it was not until 9^th February 2011 that they informed the Defence of the formal application for enhancement, that is, 7 days before the trial date.

12.  Mr. Cheung alleged that the Prosecution had caused delay on that issue, thus leading to unfairness to the Applicant. Therefore, the Court should not have accepted the Prosecution’s application for enhancement.

13.  Mr. Cheung also argued that in fact, section 56A(2) of the Dangerous Drugs Ordinance was not applicable to the present case. The reason being that the Applicant did not “use” WONG in the commission of the offence but only followed the instruction of the mastermind and handed the drugs to WONG.

14.  In any event, Mr. Cheung argued emphatically that the 50% enhancement was too high. He pointed out that before passing the sentences, the learned judge had indicated that ‘the percentage of enhancement would be reduced’ in view of the background of the case.

15.  Mr. Cheung also pointed out that the final sentence of 12 years and 7 months’ imprisonment was manifestly excessive in view of the Applicant’s background.

Discussion

16.  Section 56A of the Dangerous Drug Ordinance specifies that:

“(2) Information which may be furnished to a court under this subsection is any information which proves that the commission of the relevant specified offence involved a minor and, without limiting the generality of the foregoing, the information may relate to any of the following-

(a) the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person;

(b) a person obtaining by whatever means a dangerous drug from a minor;

(c) provision by a person to a minor of any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug;

(d) a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence;

(e) use of a minor in assisting the operation or management of premises which are used as a divan or for unlawful trafficking, manufacturing, or storage of a dangerous drug.”

17.  According to the above sections 56A(2)(a) and (d), the procuring, supplying or trafficking of a dangerous drug for or to a minor for possession or otherwise by a person; or a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence is each a factor of enhancing the sentence.

18.  Undisputed evidence revealed that the Applicant handed the 111.04 grammes of cocaine to WONG.  His act not only constituted the offence of trafficking in a dangerous drug but also caused WONG to be convicted on the same offence. 

19.  The Applicant’s act obviously amounted to supplying a dangerous drug to a minor for possession or otherwise, which also amounted to using a minor in the commission of Trafficking in a dangerous drug.

20.  This Court takes the view that there was basis on which the learned judge enhanced the sentence imposed on the Applicant on the 1^st charge.

21.  The relevant section does not specify when the Prosecution has to inform the Defence of the application for enhancement. The Prosecution indicated on 18^th January 2011 that they would consider making the application, and also formally informed the Defence of the relevant application 7 days before the trial date. This Court does not think that the Prosecution did cause any delay, nor unfairness to the Applicant. The reason is that the Defence could prepare their argument against the application for enhancement within 7 days, including collecting relevant information. This Court takes the view that the argument put forward by Mr. Cheung that the learned judge was not entitled to, or should not have enhanced the sentence, fails.

22.  In his reasons for sentence, the learned judge commented on the enhancement as follows:

“I have considered HKSAR v Wong Kwok Hung (transliteration) (CACC225/2002), the Applicant in that case used a minor aged 17 in trafficking drugs in a disco. The Court of Appeal agreed to an enhancement of sentence by 50%. I allow the Prosecution’s application. However, having considered that (the Applicant) does not have a criminal record and that he may not be the mastermind, I accept that he might not know the age of (WONG), and did not intentionally use a minor in drug trafficking. Therefore, the sentence for the 1^st charge will be enhanced by only 50%.”

23.  This Court is of the view that what the learned judge said before mentioning the 50% enhancement, reasonably understood, indicated that he was of the view that the appropriate enhancement should be not as high as 50%. He did not state clearly why he considered that a 50% enhancement of sentence was appropriate.

24.  In Wong Kwok Hung (supra) a 27-year-old defendant instructed a minor aged 17 to assist him in the trafficking of a small quantity of drugs to a customer in a disco. The Court of Appeal took the view that the appropriate enhancement was 50%. However, this Court has to point out that in Wong Kwok Hung, the Court of Appeal only increased the sentence by 50% from 4 months’ to 6 months’ imprisonment.

25.  When enhancing the sentence pursuant to section 56A(2) of the Dangerous Drug Ordinance, the court has to consider not only the percentage of the enhancement, but also the actual extent of enhancement.  In HKSAR v Lam Kam Kwong [2002] 1 HKC 541, the defendant hired a minor aged 16 in the trafficking of 1477.33 grammes of heroin. The Court adopted a starting point of 24 years’ imprisonment, however, pursuant to section 56A(2) of the Dangerous Drug Ordinance, the sentence was increased by 2 years only.

26.  The 1^st charge of this case involved 111.04 grammes of cocaine, and the learned judge adopted a basic starting point of 9 years and 8 months’ imprisonment. If the starting point was increased by 50%, the basic starting (point) arrived at would be 14 years and 6 months’ imprisonment.

27.  In view of the background of this case where 111 grammes of cocaine was trafficked in and even though a minor was used, this Court takes the view that the starting point of 14 years and 6 months’ imprisonment is manifestly excessive.

28.  This Court cannot ignore the fact that the Applicant was aged 18, yet to turn 19 at the time of the offences, and that the learned judge also accepted that he might not be the mastermind. The background of the case indicated that the mastermind was someone else, and that both the Applicant and WONG were used by the mastermind in drug trafficking activities. The Applicant was responsible for renting the residence and for storing the drugs.

29.  If a 50% enhancement was to be adopted in this case, then for other serious drug trafficking cases where an adult mastermind caused a minor to engage in drug trafficking activities by unlawful or extreme means, is the sentence to be enhanced by 100% or 150%, increasing the already draconian sentence dramatically to 30 years, 40 years or above?

30.  This Court thinks the answer to the question is clear: Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Any one would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.

31.  The Applicant pleaded guilty to 3 charges, but the drugs involved in the charges were from the same source. When passing sentence, the Court should have taken all the drugs involved in the 3 charges into consideration to pass a reasonable overall sentence.       

32.  The total weight of cocaine involved in the 3 charges was 340.31 grammes.

33.  The starting point laid down in Lau Tak Ming [1990] 1 HKLR 370 is applicable to the trafficking of cocaine (See AG v Pedro Nel Rojas CAAR15/1993).

34.  According to the starting point laid down in the above case, where the cocaine trafficked is between 200 grammes and 400 grammes, the starting point is 12 to 15 years’ imprisonment.

35.  The Applicant trafficked in a total weight of 340.31 grammes of cocaine. In view of the background of the case and the Applicant, the total starting point should be around 13 years’ imprisonment. That the Applicant supplied drugs to minor or used a minor in drug trafficking was a factor for enhancing the sentence to be imposed. However, this Court is of the view that increasing the total starting point by an extra 2 years, making it 15 years is sufficient to reflect the seriousness of the case.

36.  The Applicant pleaded guilty, the sentence should be reduced by one third, making it 10 years.

37.  This Court grants the Applicant leave to appeal against the sentences. Treating the application as the appeal, we allow his appeal and vary the sentences on the 3 charges against him as follows:

On the 1^st charge, he is sentenced to 93 months’ imprisonment.

On the 2^nd charge, he is sentenced to 77 months’ imprisonment.

On the 3^rd charge, he is sentenced to 77 months’ imprisonment.

38.  This Court orders that 27 months of the 2^nd charge is to run consecutively to the 93 months’ imprisonment of the 1^st charge, the remainder of the terms of imprisonment are all to run concurrently with each other.

39.  The total sentence imposed on the Applicant is reduced from 12 years and 7 months’ imprisonment to 10 years’ imprisonment.