In those circumstance, the papers which I received were slightly different in format and content. I can see, however, that the charges to which Yu and Chan pleaded guilty on 24 July 2017, and which were confirmed on 11 September 2018, are not identical to the counts upon the indictment to which Wong pleaded before this court on 2 August 2018. Nor was the Summary of Facts. This is unfortunate because it must always have been the case, that they should ultimately be sentenced upon the same facts by the same judge at the same time, even if there was to be a trial for one of them.
The practical result of that dissimilarity is of no substantive consequence as all of the charges involve trafficking in ‘Ice’ at the Hyatt Regency Hotel in Shatin on 14 September 2016 and the quantities relied upon are identical. However, the separation of prosecutions at time of committal led to unforeseen difficulties.
Chronologically, Wong appeared before this court earlier than his two compatriots, in order to manage his forthcoming trial. The court had been informed by letter dated 4 May 2017 that Wong was to plead guilty. On 7 May 2017, at the case management hearing, Counsel indicated that Wong would plead guilty to Count 1 only. That was acceptable to the prosecution and on 2 August 2018, that is what he did. Count 1 of HCCC 394/2017 against Wong, related to 5.729 kilos of ‘Ice’. At that time, Count 2 which related to 2.9 kilos of ‘Ice’, was not yet left to lie on the file as the remaining defendant had not yet appeared before the court, but it was clear that both parties understood and intended that Wong was to be sentenced for 5.729 kilogrammes of ‘Ice’ only. Wong’s matter, under HCCC 394/2017, was then listed to be sentenced at the same time as Yu and Chan, who appeared before me for the first time on 11 September 2018. At that time, the indictment in HCCC 293/2017, was formally put to them and Yu pleaded guilty to both counts whilst Chan pleaded guilty to Count 2 only. The result of those pleas, was that Yu was to be sentenced for trafficking in 5.729 kilogrammes of ‘Ice’ and for trafficking in 2.9 kilogrammes of ‘Ice’, whilst Chan was to be sentenced for trafficking in 2.9 kilogrammes of ‘Ice’ only. That was to be compared with Wong who was to be sentenced for trafficking in only the 5.729 kilogrammes of ‘Ice’.
On the facts of this case, that was patently unfair to Yu. How did it come to pass that those pleas were entered? Mr Donald helpfully pointed out that as a result of their early plea, Yu and Chan were bound by their unequivocal pleas when they came before this court on 11 September 2018. That was regardless of the fact, that in the interim, Wong had entered into a plea bargain with the Department of Justice, whereupon he was not to be proceeded against on Count 2, ie, the 2.9 kilogrammes of ‘Ice’.
Yu had pleaded guilty on 24 July 2017, more than a year before Wong entered his plea, at which time Wong faced both charges but Chan only faced charge 2, to which he pleaded guilty. Wong had also faced Count 2 only at that time and did not enter a plea. But he was subsequently to be proceeded against on both counts, ie, in respect of the 5.729 kilos and in respect of the 2.9 kilos of ‘Ice’. The delay in entering a plea before the Magistrate had cost him dearly. Some 9 months later, Wong entered into a plea bargain and successfully agreed to enter a plea to the 5.729 kilogrammes although that was a far greater amount than he had originally faced in the Magistracy. Yu, on the other hand, could not do so as he was already bound by his very early indication of plea. My concerns arise out of the inequity of this situation on the facts of the case. No doubt that arose because of the split of the indictments and the fact that defence counsel under HCCC 239/2017 were not communicating effectively either with the Department of Justice or with other defence counsel in HCCC 394/2017. I find it very surprising that they did not do so as all defence counsel are legally aided. If they had done so, counsel would surely have gone back to the Department of Justice and pointed out the unfairness of the resulting pleas to Yu. That was not done.
I say it appears to be unfair for this reason. The facts of the case are simple. The defendants were arrested at the Hyatt Regency Hotel in Shatin. Yu was stopped in the lobby of the hotel and found to be in possession of a box of bamboo charcoal containing the ‘Ice’. This is a common way today of secreting ‘Ice’ at the moment. That ‘Ice’ weighed 5.729 kilos. Yu immediately told the police that he was carrying the dangerous drug for Ah Shing(Wong) for a reward of just $2,000. Yu had a key card on him for room 818 and so he took the police to that room. Inside the room, the police recovered further dangerous drugs from the safe, a room rental receipt in Yu’s name was also recovered and other paraphernalia for drug trafficking including electronic scales and empty bamboo charcoal bags. Chan also had a key card for room 818 and he entered the room when the police were there. Both Yu and Chan said they were working for Ah Shing(Wong). It was Ah Shing(Wong) who approached them the previous evening and they had met up with him at the University train station. At that time, Wong had a suitcase with him. Wong had told them both they were to get $2,000 for wrapping up dangerous drugs and that Yu was to book a hotel room at the Hyatt Regency. Wong had shown them how to pack the ‘Ice’ and they had packed the 6 bags found in the safe. As for the box found in Yu’s possession after lunch, Yu had been instructed by Wong to pick up a box from a van and take it back to the hotel room, which is what he was doing when he was arrested. Wong was arrested separately as a result of their full and frank admissions of Yu & Chan which they had made immediately upon their arrest. One can see from that that there is a clear difference in the role between Wong and the other two. Whilst Yu was physically found carrying the box from the van to the hotel room, it is really a question of luck or bad luck as the case may be, that the police didn’t find the two of them after Chan had returned to room 818. In terms of role, Yu and Chan stand on all fours with each other.
The estimated value of the drugs recovered in this case was $3,225,618.
As a result of the pleas entered and the lack of communication between counsel for Yu and the others, the court invited Yu to consider applying to vacate his plea and invited prosecution counsel to seek instructions on the proper way forward. Initially the prosecution suggested that the court had no power to hear such an application. It has since conceded that the court has the discretion to allow a defendant to vacate his plea right up to the point of sentence. That discretion is available to the court even where a plea has been entered unequivocally, so long as a proper examination for the application takes place and that discretion is exercised judicially. Mr Donald on behalf of the prosecution, further submitted that this court is bound by the decision of the Court of Appeal in HKSAR v Nur Mei Lina [2018] HKCA 383. It relies upon the authority for the proposition that a court should not allow a defendant to withdraw a plea simply out of concern for sentencing. With the greatest respect to Mr Donald, that case is not on all fours with the matter before me. In Nur Mei, the defendant was aggrieved at the sentence passed and sought a reduced sentence. In so doing, the appellant also sought to apply for leave to appeal conviction out of time because a fellow prisoner had suggested a number of grounds of appeal.
This court is concerned with parity of sentence before the court given the roles and culpability of the defendants. On anyone’s account, Wong was the main player and recruited Yu and Chan. Yu and Chan did no more than package some of the ‘Ice’. There was no suggestion they had been recruited to do more than that. Wong on the other hand brought the ‘Ice’ to them in a suitcase, provided the money for the hotel room, instructed Yu to book the hotel room, instructed them both on how to package the drugs and instructed Yu to pick up the package from the van. It was Wong who was to pay them each their $2,000 reward. He denied his involvement before the magistrate and intended to go to trial, as is his right, until he faced the additional count.
Yu and Chan were full and frank at all times and no doubt would have given cogent evidence against Wong on both counts, hence the plea bargain which Yu was shut out of because he had been cooperative from the beginning and full and frank with the courts. In any event, the prosecution now tells the court that if I were to entertain and allow a withdrawal of plea, they would proceed against Yu on Count 1 even though they have indicated that they do not wish to proceed against Wong on Count 2. They are not prepared to have it lie on the file on the usual terms even though they have done so for Wong. Should they choose to proceed against Yu but not Wong, then Yu loses the benefit of his early plea and he will significantly be prejudiced given the likely sentence. In other words, the court’s hands are tied and they have been tied by the prosecution who brought about this unsatisfactory state of affairs in the first place. And by making that comment I do not criticise Mr Donald at all.
Mr Cheng, on behalf of Yu rightly comments that it is open to Yu to make an application for abuse of process in additional to his application to withdraw his plea on Count 2, given the concessions made to Wong by the prosecution which are not available to Yu on the same basic facts. However, he realistically accepts that evening if he were to do so, and were to be successful, the attitude of the prosecution in this matter suggest that it would leave the defendant open to appeal and he would be back at square one either with his original pleas in place or with a trial on Count 2 to which he must inevitably plead guilty. But in so doing, he would have lost his full discount for his early plea.
Yu, you are now 20 years of age and would have been only 17 at the time of this offence. You achieved Form 3 education and had done some work as a construction worker and you were of good character.
Chan, you are now 20 years of age and would also have been 17 at the time of this offence. You achieved Form 4 education and had also done some work as a construction worker. You too were of good character. That is to your credit given that your parents split up when you were very young. I note that you were an active sportsman and that you obtained a qualification in plumbing when you left school. That qualification gave you an income of HK$15,000 per month. That is more than many people earn who are older than you, yet you succumbed to the offer of a reward for $2,000 to package drugs. That $2,000 reward is about to cost you your liberty for very many years to come.
Wong you are now 21 years of age and would have been 19 at the time of the offence. You achieved Form 3 and worked as a cook, decoration worker and salesman. In fact, I can see from the letters of mitigation submitted to this court that you undertook a number of jobs at the same time in order to support your family who were going through very difficult times and in so doing you allowed your older brother to continue his education. But you were older and you were the ring leader. You recruited your friends to help you in this enterprise. You were the quarter master of these drugs and, whilst no doubt you were being directed by others, you were sufficiently connected with the other drug dealers to be trusted with over $3,000,000 worth of drugs. You also have a criminal record. In 2010, when you were only 13 years of age, you received a probation order for Assault Occasioning Actual Bodily Harm. A year later, for the same offence you received a further probation order. And at the age of 15 in 2012, you were convicted of Grievous Bodily Harm and went to Detention Centre. In 2017, at the age of 20 and after this offending, you were given 3 months for being a member of a triad society based upon facts which clearly must have pre-dated this particular offence. I am not taking into consideration that matter save to mark the fact that your young life was quite different from your co-defendants who were of good character. You have not had the best start in life but neither have they and until 2016, they had kept out of trouble. You have got yourself into trouble from an early age and you have dragged your friends down with you. Your action has ruined their lives and I am not convinced that you are truly remorseful about what you have done but I accept what Miss Chow has said that, although the oldest, you too were young and immature. You have had time now to think about your future. You have the opportunity to educate yourself and plan a crime free re-entry into society when the time comes. You can still make your parents proud of you by facing up to what you have done and accepting the punishment which is to come.
Both Yu & Chan, in line with their early cooperation, made non prejudicial statements. Yu made an NPS on 6 June 2017 and Chan made an NPS even earlier than that on 25 May 2017. That was before they entered their pleas before the Magistrate on 24 July of that year. Those NPS were consistent with their original confessions. Both of them indicated they were willing to give evidence against Wong and there is no doubt that this led to his much later plea of guilty. I also note that given his criminal record and associates, these two young men were putting themselves at risk in so doing.
The dangerous drugs in this matter are methamphetamine hydrochloride or ‘Ice’. HKSAR v Abdallah [2009] 2 HKLRD 437 sets out the sentencing guidelines in respect of large quantities of dangerous drugs. In Abdallah, the range of sentence to be considered for trafficking in between 1,200 and 4,000 grammes is 23 to 26 years and for between 4 kilogrammes and 15 kilogrammes, was between 26 and 30 years’ imprisonment. The starting point for 5.729 kilogrammes on Count 1 and 2.9 kilogrammes on Count 2 should therefore be 26 years and 6 months. And, 24 years and 8 months respectively.
Yu Chun-man, you have pleaded guilty to Count 1 and to Count 2 under HCCC 239/2017. I adopt starting points of 26 years and 6 months on Count 1, and 24 years and 8 months on Count 2. But there is considerable mitigation. You were still young, under the influence of Wong and your role was extremely limited. You were cooperative at the very first opportunity and have been throughout. You led the police to the hotel room and you gave a full explanation in interview. Thereafter, you made an NPS which led to the charging of Wong on Count 1 and to his ultimate plea. You put yourself at risk in so doing as I am sure you knew the company he kept but you were prepared nevertheless to give evidence against him. That must have been very hard for you as he had been your friend since a very young age. As such, you deserve a significant discount on the starting point. On Count 1 you will go to prison for 13 years and 3 months and on Count 2 you will go to prison for 12 years and 4 months to be served wholly concurrently with Count 1.
Chan Chun-yuen, you pleaded guilty to Count 2 under HCCC 239/2017, that involved 2.9 kilogrammes of ‘Ice’, for which I adopt a starting point to 24 years and 8 months. But there is also considerable mitigation for you as well. You too were still young under the influence of Wong and your role was extremely limited. You were also cooperative throughout. You gave a full explanation in interview. Thereafter you made an NPS, you were the first to do so, which led to the charging of Wong on Count 1 and to his ultimate plea. You put yourself at risk in so doing but you were prepared to give evidence against him, a person who had been a friend and who you had known since you were very young. As such you too deserve a significant discount on that starting point. On Count 2, you will go to prison for 12 years and 4 months.
Wong Yui-shing, you intended to go to trial. That is your right. But it meant that you did not enter your plea until after committal and after you had been listed before this court for case management hearing due to be heard on 30 April 2018. That was a very long time after the non prejudicial statements of Yu and Chan. I am sure you were given appropriate advice and so your refusal to accept what you had done and put the prosecution to proof which took some time, effort and expense, must be put at your door. I also note that on each and every occasion you came before this court, you were encouraged to assist yourself by helping the authorities as you were to face a long sentence. On each occasion you resisted that advice and yet on the day of sentencing and for the first time in 2 years, you indicate the name of the person you say put you up to this crime. I offered you the opportunity to give evidence as to your part but counsel declined that offer on your behalf. In other words, what you say now, some 2 years later is a bare assertion only and I have taken the view that you were the Quarter master, recruiter and ring leader of this criminal enterprise.
You fall to be sentenced on Count 1 only under HCCC 394/2017, which I happen to think is a travesty of justice and I have explained why. But I do not hold that against you, for others have brought about this state of affairs not you and the sentence I must pass is significant in any event. I adopt a starting point for that count of 26 years and 6 months. There is the aggravating feature that you recruited your co-defendants and were the clear ring leader of what was to be a significant act of trafficking. You were the quarter master and the person with the money. It is at your door that your two younger co-defendants are to spend a significant amount of time in prison. For that greater role, given the substantial sentence which you face, but marking the difference in your roles, I intend to enhance your sentence by only 6 months to 27 years.
Because your plea was tendered late, you are not entitled to a full one-third discount. In HKSAR v Ngo Van Nahm CACC418/2014, the Court of Appeal recommended a discount of between 25 per cent and 20 per cent for a defendant who enters his plea after listing for trial but before the first day of trial. The timing of that plea may well be put down to your change of representation. The fact that an additional count was to be put on the indictment or the realization that you would have been in great difficulty in trial given the cooperation of Yu and Chan. But you resisted advice for a significant amount of time and the public was put to great expense as a result. You were not as young as Yu and Chan but you were young and very foolish, no doubt mixing with entirely the wrong sort of people and so I am going to give you the benefit of the doubt as this is a substantial sentence which you are to serve early in life. I am going to discount your sentence by 25 per cent and you will go to prison for 20 years and 3 months.
Mr Donald, Count 2 of HCCC 394/2017 as against Mr Wong, is to lie on the file, not to be proceeded with without an order of this court or the Court of Appeal.