HKSAR v. WONG KA WAI AND ANOTHER

CACC 242/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 242 OF 2001

(ON APPEAL FROM HCCC 116 of 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 These two applicants, to whom we shall refer as D1 and D2, seek leave to appeal against sentence. They had each pleaded guilty before a magistrate to trafficking in dangerous drugs, and were committed to the High Court for sentence. The charges to which they had pleaded guilty were, in essence, as follows:

Charge 1: as against D1 only, that on 6 November 2000 outside 1st Floor, No. 39, Tai Nan Street, Mongkok, he trafficked in 167.51 grammes of a mixture containing 141.27 grammes of heroin hydrochloride.

Charge 2: as against both applicants, that on 6 November 2000, outside the same premises, they trafficked in 838.28 grammes of a mixture containing 394.70 grammes of heroin hydrochloride.

Charge 3: as against D2 alone, that on 6 November 2000 outside the ground floor of 123-129 Woosung Street, Yaumatei, trafficked in 28.08 grammes of a mixture containing 21.05 grammes of heroin hydrochloride.

2 At the time of the offences, namely, on 6 November 2000, D1 was aged 16 years and 2 months; and D2 was aged 18 1/2 years. Neither had previous convictions.

The facts

3 We take the facts from the summary of facts agreed by the applicants in the High Court proceedings. Given the ages of these applicants, particularly D1, at the time of the offences, and the weight that is sought to be attached to that factor in the presentation of his application, it is appropriate to deal with the facts in some detail.

4 At about 3.20 p.m. on 6 November 2000, police officers saw D1 emerge from the Tai Nan Street premises, which came to be referred as premises "L1", carrying a paper carrier bag. They intercepted him. He told them that he resided in the flat. In the carrier bag, there was a black plastic bag which contained 10 transparent resealable plastic bags of heroin which contained the drugs the subject of Charge 1. The police arrested him, and he said that he had taken the dangerous drugs "for selling only because I got no job". Using the keys found on him, the police gained entry to the premises where there was a young lady present.

5 In the living room that there were two plastic boxes on top of a cabinet. One contained ten resealable plastic bags, seven of which housed 33.27 grammes of heroin. The remaining three plastic bags carried 68.30 grammes of a mixture containing antipyrine, caffeine and paracetamol. In the second white plastic box, there were 32 resealable plastic bags with 358.98 grammes of heroin. On top of the same cabinet was found another plastic bag with 2.45 grammes of heroin as well as an electronic blender, a hammer, three screwdrivers, a paper cutter, a pair of scissors, an electronic scale, and a pile of empty plastic bags. These finds together constitute the drugs which are the subject of the second charge.

6 D1 told the police that the drugs on top of the cabinet had been brought there by him the day before. The young lady, his girlfriend, was questioned and when the police had read to him the contents of a record that they had made, he said to them "Ah Sir, I have a partner named 'Ka-wai'", who had rented the flat L1 and who, said D1, was at that very moment at the ground floor of Tung Fong Guesthouse in Yaumatei, and was about to deliver white powder to someone. His full name is CHUNG Ka-wai, and we now know that was D2.

7 So, the police proceeded to Tung Fong Guesthouse at Woosung Street from where at 4.39 p.m. the same day they saw D2 emerge. He was searched, and in a trouser pocket two plastic packets were found containing 28.08 grammes of a mixture containing 21.05 grammes of heroin. This is the 3rd charge. He was arrested, and he said that he was helping to deliver white powder to someone. The police also found a bundle of four keys inside his trousers' pocket which were keys to the Mongkok premises.

8 At the police station D1 was interviewed. He said that he worked for somebody called "Ah Kwan" whom he came to know in October 2000. As he had no employment and no money, he helped Ah Kwan to deliver drugs. According to D1, on 5 November 2000, under Ah Kwan's instructions, he obtained a block of heroin from a locker at the International Trademart in Kowloon Bay and took it back to L1, where he then broke it down with a hammer and screwdrivers, weighed the drugs, and packed them in plastic bags. He said that sometimes he would mix the heroin with other dangerous drugs. The practice was for Ah Kwan to call D1 on his mobile telephone, so as to direct him to deliver heroin to buyers and to collect money. At around 1 a.m. each day, Ah Kwan would send someone to D1 to collect the proceeds of drugs transactions. And for his role D1 received $800 a day, plus travelling expenses. He worked from 1 p.m. to 2 a.m. each day. When he delivered one ounce of drugs to others, he would collect $5,300. He said that at about 3 o'clock on the day of his arrest, Ah Kwan had telephoned him and told him to take 10 packets of drugs to a specified betting centre, to a man called "Ah Sing". So he took 10 packets from the plastic box at L1, put them inside a paper bag, and went to meet Ah Sing. As for D2, Ah Kwan had, according to D1, asked D1 to secure a helper. So he, D1, invited D2 to help him. D2 was also responsible for renting a room at the Tung Fong Guesthouse, and would wait there for Ah Kwan's instructions. D1 would himself send drugs to D2 for delivery.

9 As for D2's interview, he said that he was D1's friend, and that "Brother Kwan" was his boss. About a month prior to his arrest, D2 asked D1 if D1 could introduce some work, and D1 asked D2 if he would deliver heroin, after which D2 accepted. Later, Brother Kwan told D2 over the 'phone to work for him and to rent the premises at Tai Nan Street. On 5 November 2000, Brother Kwan told him to collect the block of heroin from a locker at the Hunghom Railway Station and, after collecting it, D2 took it back to Tai Nan Street, where he used the screwdriver and a hammer to break up the block, and then repacked the white powder into plastic bags. D2 knew that there were still about two blocks of drugs at those premises. Apart from the packaging of drugs, D2 would also wait for Kwan's telephone calls telling him where and when to deliver drugs to customers. He would take drugs from the Tai Nan Street premises to Tung Fong Guesthouse to wait for Kwan's instructions as to where to deliver drugs, and sometimes D1 would take drugs from Tai Nan Street to Tung Fong Guesthouse for him. He received his wages from D1: a basic wage of $800 per day. As for the drugs found on his possession, he was on his way to deliver them to a customer. He, D2, could not contact Kwan directly if he wanted him; he had to look for D1 first. D1 had given D2's mobile telephone number to Kwan.

10 The retail value of all the drugs was about $467,479.

Sentence

11 When sentencing, on 16 July 2001, Pang J dealt with each applicant as follows.

As to D1:

Having noted the young age of both applicants, and their clear records, and having commented that for offences of this nature those factors carried no mitigating weight, he took in relation to the first charge a starting point of 10 years' imprisonment, reduced that by one third to reflect the plea of guilty; and reduced it by a further eight months to reflect the fact that D1 had led the police to the arrest of D2. So, for the first charge he imposed a sentence of six years' imprisonment, a discount, in other words, of 40% from the starting point which he had adopted.

Then, in relation to the second charge, he took a starting point of 15 years' imprisonment; reduced that by one third because of the plea of guilty, namely to 10 years; and then deducted eight months again "for the information volunteered by D1"; and for that charge passed a sentence of nine years and four months' imprisonment. So this time the discount from the starting point was less than 40%.

He ordered that two years of the sentence imposed on the first charge should run consecutively to the term imposed on the second charge in relation to D1, making a total of 11 years and four months' imprisonment.

As to D2:

In relation to Charge 2, the judge imposed a term of 10 years' imprisonment, which was a one-third reduction from the starting point of 15 years. For Charge 3 he took a starting point of six years' imprisonment and imposed a term of four years. He ordered one year of the term imposed in relation to Charge 3 to run consecutively to the term imposed for Charge 2, a total therefore of 11 years in the case of D2.

Argument and analysis: D1

12 D1 is represented upon this application, and D2 is not.

13 D1 advances a number of grounds in support of the application. First, it is said that the judge failed to give adequate consideration to his age. It seems to be suggested by counsel for this applicant that his client falls within the category of extreme youth, and that therefore a reduction in sentence must, for that reason alone, follow.

14 In Lau Tak-ming [1990] 2 HKLR 371 the Court of Appeal at p. 386 said in relation to drug trafficking offences:

"It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade."

15 There are a number of flaws with the proposition advanced on behalf of D1. First, it makes an assumption which we do not accept, that by reason of being aged 16 years this applicant is to be classified as within the bracket of extreme youth. This court has often pointed out that it is not a matter of sheer mathematics, and there is in any event nothing to warrant the suggestion that someone aged 16 is to be treated, by reason of that figure, to be of extreme youth. Secondly, the submissions assume that age somehow stands on its own regardless of the true maturity of the individual applicant, and regardless of his or her circumstances, and regardless of the facts of the case and the circumstances of his or her offending. That is not how sentencing works. We note in this case a course of conduct by this applicant over an extended period of time, conduct in which he took a very active role, not just in delivering drugs, but in breaking them up, and mixing them, and measuring them, and packaging them, and collecting money. Moreover, D1 recruited D2. There is nothing in the probation report about him that suggests anything unusual which would warrant an exceptional course.

16 In a recent decision of this court HKSAR v Law Ka Kit and others Cr App No. 97 of 2001, we said, at page 10, in relation to youth and robberies with firearms (a case in which one of the youths was aged 14 1/2 years) that:

"Difficult though it is to sentence youths of this age to prison and indeed to long terms of imprisonment, there are several considerations which dictate that in cases of such gravity, even in the case of those of the age of the younger offenders in this case, the courts must steel themselves, unless there are particularly powerful and peculiar contrary reasons attaching to the circumstances of the offender and his involvement in the offence, to the imposition of substantial prison terms. The public interest requires that an unequivocal message be delivered to youngsters, and to those who would engage them for the purpose of crime, that they must expect little quarter from the courts when it comes to the commission of such serious offences...".

17 The same applies to the court's approach to the offences to which these applicants pleaded guilty.

18 It is then said that it was wrong for the judge to order the sentences to run other than concurrently. There is nothing in this point. The approach adopted by the judge was perfectly acceptable, in that he took a starting point appropriate to the quantity of drugs in Charge 1; did the same with Charge 2; and then arrived at a result which he considered proper for the total quantity of drugs.

19 The total quantity of drugs engaged by Charges 1 and 2 was 535 grammes of heroin. That merited a starting point in terms of totality, in our view, of 18 years' imprisonment. The only argument of any worth in this case as far as concerns D1 is the question whether the judge gave adequate credit for this applicant's assistance to the police, in telling them that he had a partner and where that partner, who was about to engage upon a sale of drugs, might be found.

20 The judge did not say what he thought the appropriate overall starting point for the two offences might be. But, as we say, we think the figure is 18 years. If that be correct, then a total discount given to D1 was in fact about 37% from the starting point of 18 years; this to take into account not only his plea at the very early stage but also the fact that he told the police about D2 and what he, D2, was about to do. We do not think that discount was quite adequate. The information was undoubtedly useful, and D2 was apprehended before delivery of the drugs, even though it may be that D2 might, in due course, have been apprehended anyway. On the other hand, it is to be remembered that it was D1 himself who was responsible for bringing D2 into the criminal enterprise and who paid him his wages and that, whilst he was prepared to give information about D2, D2 was in some ways his subordinate or helper. D1 gave no useful information to the police about his employer.

D1: Conclusion

21 We think that the appropriate overall sentence for D1 was one of ten years and nine months' imprisonment which is a 40% reduction from the starting point. Accordingly, we grant the applicant D1 leave to appeal against sentence, treat this as the hearing of the appeal and we shall make in his case the following order: the sentence on Charge 1 will remain unaltered at six years. For the sentence on Charge 2, there will be substituted a sentence of nine years' imprisonment. One year and nine months of the sentence on Charge 1 will run consecutively to, the remainder concurrently with, the sentence on Charge 2: a total of ten years and nine months' imprisonment.

D2's case

22 We turn to D2. He was aged 18 years at the date of the offences. We have a probation report in his case as well. He says in his grounds of application that had it not been for his frankness, he would not have been charged with the second charge. We think that is to ignore the reality of the matter, given that he had keys to the Tai Nan Street premises, that he was caught in the act of carrying drugs about to be sold, that he was the tenant of the premises at Tai Nan Street, and that D1 was willing to tell the police about him.

23 We are, however, concerned in his case about the judge's approach to totality. The drugs which this applicant was about to sell came from the premises at Tai Nan Street. It was all part and parcel of the same operation, an operation covered by both Charges 2 and 3. The total quantity of drugs involved in the two charges was 415 grammes of heroin. That warranted a starting point, overall for the two charges, of 15 years' imprisonment and the judge ought, in our view, so to have arranged the sentences in respect of the two charges, that the total, giving credit for the plea of guilty, did not exceed 10 years' imprisonment. Therefore the total sentence actually imposed, totalling 11 years, should not stand.

24 We therefore grant the applicant D2 leave to appeal against sentence, treat this as the hearing of the appeal and, whilst we do not alter the individual sentences imposed in respect of Charges 2 and 3, we set aside the judge's order that one year in relation to the 3rd charge should run consecutively to the sentence on the 2nd charge, and we order, instead, that the sentences on Charges 2 and 3 will run concurrently: a total, therefore, of 10 years' imprisonment.