HKSAR v. CHAN OI HING

CACC 239/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 239 OF 2015

(ON APPEAL FROM HCCC 380 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1. On 6 July 2015, the applicant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, before Deputy High Court Judge V Bokhary (“the judge”). The Particulars of Offence alleged that on 9 April 2014 at the Lo Wu Control Point, New Territories, the applicant unlawfully trafficked in 2 kilogrammes of a crystalline solid containing 1.94 kilogrammes of methamphetamine hydrochloride. This drug is commonly known as “Ice”.

2. On the same day of her plea, that is 6 July 2015, the applicant was sentenced to 17 years’ imprisonment.

3. On 11 July 2015, she filed a Notice of Application for leave to appeal against sentence.

4. At the first hearing of the application it was necessary to adjourn it in order for counsel to resolve matters relating to a claim by the applicant that she had provided assistance to the Customs and Excise Department by taking part in a controlled delivery operation.  At the adjourned hearing of the application we allowed it, treated the hearing of the application as the hearing of the appeal and allowed the appeal.  We quashed the sentence of the judge and in substitution for it imposed on the applicant a sentence of 14 years 8 months’ imprisonment. We said we would hand down our reasons for doing so at a later date and this we now do.

The background to the offence

5. On 9 April 2014, the applicant was intercepted for customs inspection at the Lo Wu Control Point upon her arrival from the Mainland.  At the time, she was carrying a paper bag which, upon x-ray examination, aroused Customs Officers’ suspicions. 

6. An examination of the paper bag revealed it contained a black plastic bag containing two tinfoil bags printed with the characters ‘Ko Shan Tea’.  The tinfoil bags each contained a transparent ziplock bag with suspected dangerous drugs inside.  When asked what these substances were the applicant said she had no idea.  An ion test of the substance proved positive and the applicant was arrested and cautioned.

7. Under caution, the applicant repeated her claim that she did not know the nature of the substance in the transparent ziplock bags but said that she had been given the bags by her friend from the Mainland and asked to carry them to Mong Kok where she was to hand them over to someone else.  The applicant said that upon completion of the delivery she would receive $5,000.

8. On subsequent examination, the substance was found to be a total of 2 kilogrammes of a crystalline solid containing 1.94 kilogrammes of methamphetamine hydrochloride.  The dangerous drugs had an estimated street retail value of $814,000.

The sentencing hearing

9. Counsel for the applicant informed the judge that the applicant was aged 52 and was a housewife.  He invited the judge to treat the applicant as being a person of clear record as she only had two gambling offences dating back to 2004 and this invitation was endorsed by the prosecution.  The applicant is not, herself, a drug addict.

10. It was submitted that the applicant’s role in the offence was only that of a courier and that she had agreed to perform this limited role because she wanted to earn some quick money.  She had been asked by her friend, ‘Ah Yung’, to carry a package from the Mainland to Hong Kong and had been promised she would receive a reward of $5,000 upon delivery of it. 

11. Her counsel informed the judge that after the applicant was arrested, she was asked by Customs and Excise officers to participate in a controlled delivery operation.  The applicant agreed to do so.  She made a phone call in front of the officers and subsequently went to Mong Kok to await the collection of the drugs.  However, no one appeared to take delivery of them.  It was submitted on behalf of the applicant that her cooperation and assistance deserved a further discount of her sentence.

12. In view of the type of drugs, the cases of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 were referred to the judge.  It was submitted by the applicant’s counsel that as the present offence was committed 2 months before the judgment of the Court of Appeal in the Tam Yi Chun case was delivered, the new guidelines laid down in that case for trafficking in large quantities of “Ice” were “non-binding”.  Counsel for the applicant expressed his view of the legal position as follows:

“And of course, although Tam Yi Chun was delivered on 9 June 2014, and the present offence was committed two months earlier, strictly speaking, its non-binding, but I mean its very persuasive, so I would – do urge my lady to apply the similar tariff as set out in Abdallah and Tam Yi Chun.”

13. Counsel for the applicant urged the judge to adopt a starting point in the range of 23 to 26 years’ imprisonment and suggested that based on the quantity the appropriate starting point within that range was 24 years’ imprisonment.

14. The judge queried with counsel for the applicant what amount of enhancement she should make for the international element of the offence. Counsel replied that 2 years was appropriate and this would result in a final starting point of 26 years’ imprisonment. Counsel for the applicant then submitted that a further discount of 5 to 10 % in addition to the usual one-third discount for the plea of guilty, should be allowed for the applicant’s cooperation with the authorities in the form of her willingness to participate in the controlled delivery operation. He suggested a final sentence in the range of 16 to 18 years’ imprisonment.

The Reasons for Sentence

15. In sentencing the applicant, the judge adopted a starting point of 24 years that had been urged upon her by the applicant’s counsel.  This she enhanced by 2 years for the aggravating feature of the international element making a final starting point of 26 years.  The judge took into account the applicant’s plea of guilty, and her cooperation with the officers and that she was to be treated as a person of clear record.  The judge then discounted the 26-year starting point to allow for the mitigation and imposed on the applicant a sentence of 17 years’ imprisonment.  The judge described the quantum of the discount she allowed the applicant as “a slightly more than one-third discount.” 

The grounds of appeal against sentence

16. Mr Hung, who appeared for the applicant on appeal, but not at trial, relied on two grounds of appeal against sentence.  The first is that the judge should have applied the pre-Tam Yi Chun sentencing guidelines. The second ground of appeal is that the judge erred in not granting sufficient allowance for the applicant’s participation in a controlled delivery operation.

17. It was submitted that as the judgment in the Tam Yi Chun case was delivered on 9 June 2014, 2 months after the date of offence for the present case, it did not apply to this applicant.  It was asserted that the appropriate sentence for 1.94 kilgrammes of “Ice” is to be calculated in accordance with guidelines laid down by the Court of Appeal in the Ching Kwok Hung case and with the assistance of subsequent Court of Appeal cases operating under these guidelines.  It was argued that had that been done, then the starting point for the applicant should be no more than 22½ years’ imprisonment.

18. Regarding the additional discount for the applicant’s cooperation with the authorities, Mr Hung relied on the contents of an agreed chronology which showed the acts of assistance rendered by the applicant to the investigating Customs & Excise officers.  He submitted that the applicant was only given slightly less than 4 months’ discount for the controlled delivery operation and should have been given an 8 to 10% discount for her cooperation, regardless of whether the cooperation was fruitful or not.

19. Therefore, the sentence after enhancement of 2 years (which the applicant accepts as appropriate) would be no more 24½ years’ imprisonment; which is reduced to 16 years and 4 months after discount for the applicant’s guilty plea, and further reduced to 14 years and 8 months’ imprisonment when further discounted for the applicant’s cooperation with the Customs Officers.

The respondent’s submissions

20. In respect of the first ground of appeal, counsel for the respondent, Ms Laura Ng Senior Public Prosecutor, accepted that the sentencing guidelines for trafficking in “Ice” as set out in the Ching Kwok Hung case should have been followed by the judge when sentencing the applicant but argued that even under the guidelines set out in that case no tariff is laid down for trafficking in a large quantity of “Ice”.  It was precisely that lacuna which prompted the Court of Appeal to provide further guidance in HKSAR v Tam Yi Chun in respect of quantities of “Ice” greater than 600 g.

21. The respondent submitted that although the starting point of 24 years adopted by the judge may have been on the high side, this was within the range of sentences that had been applied by trial courts and approved by the Court of Appeal before Tam Yi Chun. 

22. In respect of the second ground of appeal Ms Ng submitted that in discounting the enhanced starting point from 26 years to 17 years the judge had awarded the applicant some reduction for her assistance to the authorities.  This reduction was not, it was argued, manifestly inadequate when compared with those in the cases submitted by the applicant.  

Discussion 

23. There is no dispute that, at the invitation of the applicant’s counsel, the judge was led into judicial error in sentencing the applicant in accordance with the post-Tam Yi Chun sentencing guidelines.  That sentence must now be quashed and the applicant sentenced afresh by this court.

24. Under the Ching Kwok Hung guidelines there was no sentencing range for trafficking in quantities of “Ice” in excess of 600 grammes.  In that case the Court of Appeal simply said that the sentence for quantities in excess of 600 grammes should range from 18 years upwards.

25. However, in the years since Ching Kwok Hung, cases in excess of 600 grammes have come before the Court of Appeal and it is fair to say that from those cases a sentencing pattern emerged.  As with all drug cases that pattern reflected a range of sentences for particular quantities of narcotic so it is never possible to say with precision what the sentence should be for a specific quantity of narcotic. 

26. The following cases give an idea of the range of sentences that have been imposed or approved by the Court of Appeal:

Case	Quantity of “Ice” in grammes	Starting point in years for sentence
HKSAR v Ng Kie Tiong & anor CACC 456/2007	1,943.50 + 1,975.89	22
HKSAR v Chok King Foh CACC 351/2008	1,685.51	21
HKSAR v Stojanovic Milka CACC 110/2010	1,484.01	20
HKSAR v Lee Kwok Wai & anor CACC 87/2009	1,896.70	22½
HKSAR v Tam Yi Chun [2014] 3 HKLRD 691	1,916	22½

27. In the Ng Kie Tiong case Yeung JA, as he then was, referred to the absence of any specific guideline for quantities beyond 600 grammes and observed:

“This poses certain complications in respect of the sentencing. 1,900 g of ‘ice’ is quite a huge quantity. But we doubt if a ‘top scale’ starting point of 25 years should be adopted. If 1,900 g of ‘ice’ justifies such ‘top scale’ starting point, then what would be the just starting point the court should adopt for cases involving, 3, 4, 5 kg or even large amount of ‘ice’?”

28. This passage highlighted the problem that was finally addressed by the Court of Appeal in Tam Yi Chun.  In Tam Yi Chun the court said that the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437 should henceforth be applied to quantities of “Ice” in excess of 600 grammes.  This would mean that had this applicant been subject to the post-Tam Yi Chun sentencing guidelines she would have fallen into the Abdallah band for 1,200-4,000 grammes of narcotic which is a sentence of 23-26 years’ imprisonment.  This, of course, was the basis on which the applicant was in fact sentenced and, as is conceded by the respondent, was wrong.

29. In Tam Yi Chun the applicant was sentenced on the basis of the Abdallah guideline but as this practice had not yet been approved the Court of Appeal imposed a sentence that gave the applicant the benefit of the pre-Abdallah practice in sentencing.  Consequently, the sentence imposed by the Court of Appeal in Tam Yi Chun is a relevant guide to how the present applicant should be sentenced.  In settling upon a starting point of 22½ years’ imprisonment the Court of Appeal in Tam Yi Chun said it took Lee Kwok Wai as “an appropriate comparator.”[1]

30. We are satisfied that an initial starting point of 22½ years is the appropriate starting point for this applicant which, when enhanced for the international element, becomes 24½ years.

31. In respect of the second ground of appeal the applicant relies upon the case of HKSAR v Jardin Rodela Maningas CACC 278/2011, unreported, 29 May 2012 in support of the submission that a defendant’s participation in a controlled delivery operation entitled the defendant to some sentencing credit notwithstanding that the operation was ultimately unsuccessful.  In paragraph 16 of that judgment Stock VP, as he then was, said:

“ It is our view that the applicant ought to have been given some credit for her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered backed up as that agreement was by action on her part. It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant. We are surprised that counsel for the respondent does not see it that way and has suggested that even on the facts we have outlined no credit should be given simply because in the event the assistance in fact provided came to nothing.”

The discount given by the Court of Appeal in this case amounted to 7.5%.

32. In HKSAR v Gopal Muthusamy CACC 238/2010, unreported, 13 July 2011 the Court of Appeal was again dealing with a controlled delivery operation which was ultimately unsuccessful.  The court noted that there was nothing to suggest that the failure of the operation was in any way attributable to the defendant and said the court “must proceed on the basis he [the defendant] was prepared to assist to the stage of a fruitful delivery ….”  In this case the trial judge awarded a total discount of 35% which the Court of Appeal increased to approximately 41%.

33. We have been informed by counsel for the respondent that there is no reason to think that the applicant’s cooperation was anything other than genuine or that the failure of the operation was due to any fault of her’s.  That being so we are of the view that the applicant is entitled to a discount for her cooperation and assistance and the appropriate total discount for her is one of 40%.  The starting point of 24½ years when discounted by 40% results in a sentence of 14 years 8 months’ imprisonment.

Conclusion

34. For the reasons set out above we allowed the application for leave to appeal and, treating the application for leave to appeal as the hearing of the appeal, we allowed the appeal, quashed the sentence of the judge and in substitution for it imposed on the applicant a sentence of 14 years 8 months’ imprisonment.

[1]  HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 at 704, paragraph 43.