HKSAR v. HAU CHUN HIN

CACC 399/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 399 OF 2014

(ON APPEAL FROM HCCC NO. 26 OF 2014)

________________________

________________________

________________________

J U D G M E N

________________________

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

1.  Following his plea of guilty in Eastern Magistracy on 21 January 2014 to a single charge of trafficking in a dangerous drug, namely 20.22 kilogrammes of a powder containing 14.50 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was committed for sentence to the High Court. On 17 April 2014, he appeared before Madam Justice Poon (“the judge”), where he confirmed his plea and was sentenced to 20 years’ imprisonment.

2.  The applicant filed a notice of application for leave to appeal against sentence out of time (Form XI) on 20 November 2014.  Given the circumstances which have arisen since sentence and to which we shall refer shortly, Ms Sabra Lo, for the respondent, rightly does not take any issue with the application being out of time.  In the circumstances, nor do we.

The facts

3.  The applicant arrived at Hong Kong International Airport on 10 August 2013 as an inbound passenger from Brazil.  At about 12:20 pm, he was observed at the taxi stand at Passenger Terminal 1 pushing a trolley on which there was a brown travelling bag and a small red suitcase.  Upon interception, he immediately stated that he had been asked by somebody “to send it back to Hong Kong”.  He was then cautioned whereupon he admitted that his friend would give him HK$30,000 to go to Brazil and bring a bag of “stuff” back for him.  He guessed that the “stuff” was illegal.

4.  Upon search of the brown travelling bag, twelve floor mats concealing what was later found to be a total of 14.5 kilogrammes of cocaine narcotic, and which had been sewn into them, were found.  Asked what the powdery substance was, the applicant said “It is perhaps drugs.  I haven’t opened it for a look”.  Arrested and cautioned, the applicant said “Ah Sir, it has nothing to do with me. Really somebody asked me to bring the bag of stuff back”.

5.  In a subsequent cautioned video recorded interview, the applicant admitted that he had been approached by a former school friend to go to a foreign country in order to bring something back for a reward of HK$30,000.  On 27 July 2013, the applicant went to the airport where he was given an airline ticket, US$4,000 and a hotel booking record.  He then flew to São Paulo in Brazil and was there given a brown travelling bag.  He was told not to open the bag but sensed that there was likely to be dangerous drugs inside.  He flew back to Hong Kong, arriving on 10 August 2013.  At the time of seizure, the estimated retail value of the dangerous drugs seized was HK$19,795,380.

Mitigation

6.  The applicant was 19 years old at the time of his sentence. Prior to his arrest, he had helped out at a fish market as a transportation worker.  He had a previous clear record.

7.  Mr Albert Poon, who appeared for the applicant at the court below as he does before us today, accepted that the sentence, in accordance with the guidelines in HKSAR v Abdallah[1]and given the international element involved in bringing the drugs across the border into Hong Kong, should have been “at least 30 years’ imprisonment”.  However, he urged the court to recognise that, notwithstanding that such a sentence would be entirely merited, the applicant was only 19 years of age and to extend such mercy as the court felt able.

Reasons for sentence

8.  The judge recognised that the most significant matter in sentencing for trafficking in dangerous drugs in the present case was the amount of narcotic involved.  She considered that the appropriate range of starting point for trafficking in 4 to 15 kilogrammes of cocaine was 26 to 30 years’ imprisonment under the relevant guidelines in Abdallah.  After considering the quantity of the dangerous drug involved and the mitigation advanced, including the matters referred to in letters of mitigation, the judge adopted a starting point of 30 years’ imprisonment.  Bearing in mind that 30 years’ imprisonment was already a very lengthy sentence, she considered that any enhancement for the international element involved should be subsumed into the 30 years’ starting point, particularly since trafficking in such quantities would normally involve an international element, such as importation.  Giving the applicant a full one-third discount in recognition of his plea of guilty at the earliest opportunity, she sentenced him to 20 years’ imprisonment.

Grounds of appeal

9.  Mr Poon puts forward a single ground of appeal, namely, that the applicant’s sentence should be further reduced to recognise his post-sentence assistance to the authorities.  He takes no issue with the starting point adopted by the judge.

10.  The circumstances of that assistance are these. Following his sentence, the applicant gave four non-prejudicial statements implicating one Ko Wai-lun (“Ko”), the friend who had introduced the applicant to this enterprise. The applicant subsequently testified between 19 and 21 April 2016 before Deputy Judge Bokhary and a jury, in accordance with his non-prejudicial statements.  He was the only live witness and his evidence must plainly have been accepted by the jury, since they convicted Ko of trafficking in the same consignment of cocaine which had been imported by the applicant, as a result of which Ko was sentenced to 30 years’ imprisonment.  The applicant had also given Ko’s full personal particulars to the police, as well as his Facebook login password to enable the police to trace him; and he had then positively identified Ko at a formal identification parade.  The applicant was, therefore, instrumental in the identification, apprehension, prosecution and conviction of Ko.

11.  Mr Poon referred the Court to a number of authorities[2] suggesting that the applicant was entitled in the circumstances of his assistance to the authorities to an overall discount of 50%.

12.  He urged this Court to exercise further leniency given the positive steps taken by the applicant to better himself while in prison.  He had studied Business Administration at the Open University through distance learning and has been awarded a Certificate in Business Administration.  He will in due course obtain a degree by accumulating different certificates and 120 credits, having already obtained more than 40 credits since he started studying in September 2014.  Given the applicant’s remorse and his determination to improve himself whilst in prison, a shorter sentence would enable him to be rehabilitated into the community sooner.

The respondent’s position

13.  In the light of the history of this matter since the applicant’s sentence, Ms Lo rightly does not take issue with the granting of leave to appeal out of time.  She also very properly concedes that in the light of the applicant’s assistance to the authorities, fully followed through by his giving of evidence which has been accepted by a jury, resulting in the conviction and sentence of Ko, he is entitled to a 50% discount of the appropriate starting point.  She contends that the applicant in the present case cannot be considered a “supergrass”, since there is no suggestion of any threat to the applicant’s security or safety as a result of his assistance.

Consideration

14.  We are obliged for the sensible and realistic submissions of Mr Poon on behalf of the applicant.  We are also grateful for the entirely proper approach taken by Ms Lo on behalf of the respondent.  We think in the circumstances that the decided merits of the case oblige us to grant the applicant a further discount from the notional starting point adopted by the judge.  That discount should be 50%.

15.  We do not think that any further reduction can be made beyond 50% from the starting point.  Impressed though we are by the significant efforts that have been made by the applicant to improve himself whilst in prison, he will no doubt recognise, as does Mr Poon and as did the judge herself, that the starting point could have been enhanced by at least another 2 years’ imprisonment.  The judge felt, in the exercise of her discretion, that she could exercise leniency by treating any enhancement as subsumed within the starting point of 30 years’ imprisonment.  However, she was very much aware that she was taking an exceptional course, given what she had heard about the applicant, his age and how he had already endeavoured to improve himself whilst in custody.  We would not interfere with her exercise of sentencing discretion in this regard.

16.  In the circumstances, and for the reasons we have given, we grant the applicant leave to appeal against sentence out of time, allow the appeal and reduce the sentence from 20 years’ imprisonment to 15 years’ imprisonment.