HKSAR v. CHAN WING TIM AND ANOTHER

CACC 41/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 41 OF 2008

(ON APPEAL FROM HCCC NO. 249 OF 2007)

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.  On a retrial, all four accused persons pleaded guilty to one count of conspiracy to traffic in dangerous drugs before Tong J.  The learned judge adopted a starting point of 9 years for the 1^st defendant, 7 years for the 2^nd defendant and 8 years for each of the 3^rd and 4^th defendants.  He gave each of them a one-third discount although they only pleaded guilty on the retrial.  The 2^nd and 3^rd defendants now apply for leave to appeal against sentence before us.

2.  According to the Summary of Facts, it appeared that between 18 March 2004 and 1 May 2004, the police conducted an undercover operation at and in the vicinity of the sitting-out area in King Fuk Street in San Po Kong including a nearby open area under the flyover (the site).  Between 18 March 2004 and 1 May 2004, two undercover police officers, PC52428 and PC52748 posed as drug addicts and purchased at the site a total of 34 packets of heroin hydrochloride from various persons including the 1^st to 4^th defendants.  The packets were wrapped in clear plastic sheets in the form of white powder, and on average, each contained 0.2 gram of a mixture containing heroin hydrochloride.  The cost was $120 per packet.

3.  Between 18 March 2004 and 1 May 2004, the officers also purchased packets of midazolam from persons including the 2^nd and 4^th defendants.  They were referred to by its street name of ‘candie’ and were sold in forms of pellets wrapped in plastic film at the cost of $30.

4.  During the surveillance, the 2^nd defendant was observed on 4 separate occasions over 3 days to be selling drugs to an unknown Chinese male as well as to PC52428 on one occasion heroin hydrochloride and on another occasion midazolam, and to PC52748 midazolam.

5.  So far as the 3^rd defendant was concerned, he was seen on 6 occasions but over 2 days and sold a packet of heroin hydrochloride to PC52748 on 3 occasions and to PC52428 on the other 3 occasions.

6.  One of the matters which was urged on behalf of each of the defendants in mitigation was that it was unfair that a supplier of drugs to this group, a woman called Yu Wai-mei (“Yu”) was tried in the District Court and given a sentence of 4½ years after being convicted.

7.  In order to explain the situation more fully to this court, Mr William Tam, SADPP, has informed the court:

(i)   On 30 April 2004, 11 persons (including the 2^nd and 3^rd defendants) were arrested.  Yu had not been arrested and was at large.

(ii)   Legal advice was given on 27 July 2004 to charge 8 of the arrested persons (including the 2^nd and 3^rd defendants) with one count of conspiracy to traffic in dangerous drugs to be tried in the Court of First Instance.

(iii)  Yu was arrested by the police on 25 September 2004 but made no admission under caution.  There was at that time no confirmed DNA evidence (on the drug packets seized) against her.  She was later released by the police.

(iv)  The 1^st trial (HCCC 345/2004) against the 8 accused (including the 2^nd and 3^rd defendants) commenced on 27 June 2005 and concluded on 2 September 2005.  3 of the 8 accused pleaded guilty to the charge on 11 July 2005.  On 16 August 2005, the jury found the remaining 5 accused (including the 2^nd and 3^rd defendants) guilty after trial.

(v)  On 2 September 2005, the trial judge (Nguyen J) adopted a starting point of 8 years’ imprisonment for the 2^nd and 3^rd defendants.

(vi)  Counsel on fiat for the prosecution completed his case report and submitted a separate note to the Department of Justice on the question of a possible prosecution against Yu based on the latest DNA evidence against her.  As Fiat Counsel observed, Yu was not charged with the conspiracy because when the case against her was considered, the prosecution did not have the DNA evidence against her, which only became available in June 2005 and which was not available as a complete picture until after the trial had commenced on 27 June 2005.

(vii)  Yu was re-arrested on 22 September 2005 and questioned about the presence of her DNA on the wrappings of some of the drug packets seized.  Under caution, Yu admitted having handed over several packets of heroin to a person at the scene in question.  However, she claimed that she could not recall other details.

(viii)  On 17 September 2005, legal advice was given to charge Yu with one count of conspiracy to traffic in dangerous drugs.  It was also advised that since Yu was to be prosecuted alone, it would not be cost-effective to proceed on the full scope of the conspiracy that was charged in the Court of First Instance, for such an approach would necessitate the calling of evidence by the prosecution to make clear the role of the various co-conspirators.  It was advised that Yu be prosecuted with a smaller conspiracy involving Yu and three traffickers to whom Yu had supplied the dangerous drugs - i.e. a conspiracy between 4 traffickers only (including the 3^rd defendant) in the District Court.

(ix)   On 9 December 2005, Yu was brought before the District Court for the first time where she pleaded not guilty.  On 25 April 2006, her trial commenced before Deputy District Judge Rickie Chan and she was convicted after trial.  On 30 June 2006, the judge adopted a starting point of 4½ years’ imprisonment and finding no mitigating factors, sentenced her to imprisonment for 4½ years.

(x)   Following their convictions in the Court of First Instance, the 2^nd and 3^rd defendants, together with three others defendants, appealed against their convictions and sentences (CACC 389/2005). On 15 August 2007, the appeals against conviction by the 2^nd and 3^rd defendants and two others defendants were heard and allowed by the Court of Appeal.  But the appeal against conviction by the remaining applicant was dismissed.  A re-trial was ordered against the four successful appellants (including the 2^nd and 3^rd defendants). 

(xi)  On 22 October 2007, a fresh indictment was filed with the Court of First Instance against the 2^nd and 3^rd defendants and 2 others.  On 15 January 2008, the 2^nd and 3^rd defendants pleaded guilty to the charge and on 17 January 2008, they were sentenced to 4 years and 8 months and 5 years and 4 months respectively.

8.  It appears from the information provided by the prosecution, there was a good reason why Yu was prosecuted in the District Court, and that it was not unfair to the 2^nd and 3^rd defendants that she was not prosecuted together with them during the 1^st trial.

9.  The 2^nd and 3^rd defendants, who appeared in person before us, relied on the so-called disparity of sentence between their sentence and the sentence given to Yu in support of their application for leave.

10.  As this court has said in HKSAR v Chow Tak-fuk, CACC 428/2004, unreported, 15 February 2005.

“6.     … where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused is proper.”

In that case, the applicant who pleaded guilty was given the same sentence as his brother who had pleaded not guilty before a different judge.  The applicant’s application was dismissed.  The court said that his brother was the beneficiary of an extraordinarily light sentence and what the applicant wanted was the benefit of the same extraordinarily light sentence, which according to established principle, he was not entitled to.

11.  As I have said, I agree with Mr William Tam, for the prosecution, that there were good reasons for the prosecution to charge Yu in the District Court.  Her sentence of 4½ years’ imprisonment might appear to be light but that is not a reason to reduce the applicants’ sentences.

12.  Moreover, Tong J was fully aware of the sentence imposed on Yu and had made allowance for it in his judgment.  He had explained that in the judgment:

“There are really two schools of thought about the discount that should be granted for a guilty plea in a re-trial but the general trend is a quarter. However, in the present case, the defendants had always been ready to plead guilty to the individual trafficking offences but now they are willing to admit to the full conspiracy charge. Their previous appeal was allowed on a technical point and the defendants had to face a second trial.

What happened to Yu may give rise to - even if unjustifiable in the end - a sense of grievance. And considering the circumstances, I have decided to grant the full one-third discount to the defendants ... ”

13.  In other words, the learned judge had given allowance to the defendants, for the fact that Yu only received 4½ years’ imprisonment in the District Court.  More importantly, this is what the learned judge said about scale of trafficking in the present case:

“I believe the basis of the sentence must be in relation to the facts as submitted by the defendants and what reasonable inferences the court could make based on those facts. I noted that there was no evidence regarding the actual volume of sales on each day but the operation had lasted for 42 days and 30 odd packets of drugs were sold to the agents.

The amount of drugs and cash involved were not large individually, but the trafficking was clearly run on a daily regular basis and it was carried out by a group of people who might themselves be drug users. There was clearly a level of organization among the defendants but I cannot say it was a sophisticated syndicate.

The basis of sentence must be the common agreement to traffic in dangerous drugs and such illegal activities had indeed been carried out on a regular basis, at least in the period in question ...”

14.  On the facts of this case, I do not believe the starting point of 7 years for the 2^nd defendant to be manifestly excessive or in any way inappropriate.

15.  However, the 3^rd defendant submitted that it was wrong that the learned judge should have adopted the starting point of 8 years.  As noted above, the involvement of 2^nd defendant in the conspiracy was similar to the involvement of the 3^rd defendant.  Nor should their sentence depend too much on the number of occasions they were observed to be selling drugs.  They were charged with and pleaded guilty to conspiracy.  So although some adjustments could be made to reflect the actual part played by each of the defendants, they were all criminally liable for the acts of each of the conspirators.

16.  Having said that, it seems in the circumstances of this case, there was actually no reason to distinguish between the 2^nd and 3^rd defendants.  So for that reason, so far as the sentence of the 3^rd defendant was concerned, I believe the same starting point should be adopted.

17.  It is also said that because of the delay between their arrest and ultimate conviction, a period of about 3½ years, the defendants had suffered from stress.  But this is not a case where the prosecution could be faulted or that there had been inordinate delay.

18.  Indeed, the learned judge had already noted that the defendant had to face a 2^nd trial, and that probably was one of the reasons why they were eventually given the full discount.

19.  In any event, having regard to the starting points adopted by the learned judge, and the full discount of one-third that he had given to the 2^nd and 3^rd defendants, we do not believe that a sentence which is based on the starting point of 7 years could be described as manifestly excessive.  Nor are they such that it would be appropriate to give them any further discount.

20.  So far as the 2^nd defendant is concerned, his application for leave to appeal against sentence is refused.  As for the 3^rd defendant, leave to appeal against sentence is granted.  Treating this hearing as the hearing of the appeal, his sentence should be reduced to 4 years and 8 months.