HKSAR v. HO WING CHEUNG

CACC 264/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2015

(ON APPEAL FROM HCCC NO. 511 OF 2014)

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J U D G M E N T

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

1. The applicant, who was the 2^nd defendant on the indictment, was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 5 August 2015, he pleaded guilty before M Poon J (“the judge”) to one count of trafficking in a dangerous drug, namely, 2.15 kilogrammes of a solid containing 1.52 kilogrammes of cocaine[1] and, on 7 August 2015, was sentenced to 13 years and 9 months’ imprisonment.

2. On 19 August 2015, the applicant lodged notice of his intention to seek leave to appeal against sentence.

The facts

3. At about 7.30 am on 21 February 2014, the 1^st defendant on the indictment, Tang Ho-ming (D1), was intercepted at the inbound private car kiosk at Shenzhen Bay Control Point.  After a search, Customs Officers found two brown envelopes inside a recycle bag he was carrying, containing six binders enclosing 76 laminated photographs, which were found to have sandwiched within them 76 cloths containing cocaine.

4. D1 was arrested and under caution denied knowledge of the presence of dangerous drugs inside the photographs.  He said he had not looked inside the albums.  He claimed that he had brought the sample photographs from various companies in Shenzhen and Macau and was to deliver them to someone called Lao Yao at the Huanggang bus stop at the Tsuen Wan MTR station.  Subsequently, D1 participated in a controlled delivery operation and, at about 12.30 pm the same day, handed over the said recycle bag with the dangerous drugs to the applicant at an appointed place.  As a result, the applicant was arrested.

5. Upon his plea of guilty, the applicant admitted that he knew cocaine was inside the photographs in the recycle bag which had been handed to him by D1, and that he was trafficking in the dangerous drugs particularised.  That was the limit of his admissions as to knowledge under the admitted Summary of Facts.

6. The estimated street value of the seized drugs was HK$2,225,250.

Mitigation

7. In mitigation, it was submitted by counsel on behalf of the applicant that he had assisted the authorities in offering to give evidence against D1, which had been instrumental in D1’s eventual plea.

8. It was further submitted that there was no aggravating international or cross-border element applicable to the applicant, since:

(a)  there was no evidence that the applicant knew D1 had smuggled the drugs into Hong Kong from the Mainland; and

(b)  D1 and the applicant were not jointly charged, so that the basis of the prosecution case against the applicant was not that they were smuggling drugs together from the Mainland to Hong Kong.

Reasons for sentence

9. In sentencing, however, the judge considered that there was a cross-border element in the applicant’s case.  She held:

“It is clear from D2’s [the applicant’s] non-prejudicial statements, in particular the one dated 29 July this year, which counsel has relied on to say that these were instrumental to the plea of D1, that D2 [the applicant] knew full well, both from Yung and D1, prior to his arrest that D1 was bringing the drugs to him from China.”

10. The judge considered that the amount of narcotic involved was similar to that in the case of HKSAR v Toerab Mohamedajoeb (unrep., CACC 278/2010), where a starting point of 23 years’ imprisonment, with an enhancement of 2 years for the cross-border element, was upheld by the Court of Appeal.  She did not accept the case of HKSAR v Yeung Ho Wai (unrep., CACC 271/2013) as authority for a 1 year enhancement for the international element.  Relying on the guidelines set out in HKSAR v Abdallah [2009] 2 HKLRD 437, together with an enhancement of 2 years for the international element, the judge considered that the appropriate sentence after trial should have been 25 years’ imprisonment.

11. The applicant was given a 45% discount, which was said to cover his “pivotal role in giving a non-prejudicial statement to the police and his willingness to testify against D1 which contributed to D1’s pleading guilty”.  This resulted in a sentence of 13 years and 9 months’ imprisonment being passed upon the applicant.

Grounds of appeal against sentence

12. In his Perfected Grounds of Appeal against sentence and in his written submissions, Mr Wong Po Wing, counsel for the applicant on this appeal but not at trial, submits that the judge erred in increasing the starting point by 2 years for the cross-border element by having regard to facts admitted by the applicant in his non-prejudicial statement, which were not properly before the court.  Further, the applicant had not been jointly charged with D1, and the facts admitted by the applicant did not involve any international or cross-border element.

Respondent’s submissions

13. Ms Janice Cheuk, for the respondent, does not oppose this application for leave to appeal against sentence.  She accepts that, based upon the Summary of Facts, there was an insufficient factual basis to draw the irresistible inference that the applicant was party to trafficking in dangerous drugs which he knew had just been brought across the border from the Mainland. She accepts that it was in the circumstances wrong for the judge to have had recourse to the applicant’s non-prejudicial statements, when they each contained a declaration that they would not be used against him in any subsequent court proceedings, and when their contents were not an issue before the court.  She makes the observation that such use of non-prejudicial statements by sentencing judges might well discourage other accomplices from revealing the full picture of their own and others’ involvement in drug trafficking activities.

Consideration

14. The judge took the view that if defence counsel at trial was relying on the three non-prejudicial statements, she was entitled to look at them and make use of their contents.  She reasoned that the defence could not have it both ways, by relying on matters advantageous to the defendant but asking a court to ignore matters which were not advantageous.

15. However, the fact is that defence counsel was not relying on the contents of the non-prejudicial statements beyond the fact that they were made.  His simple point was that they had been instrumental in getting D1 to change his mind and plead guilty: therefore, the applicant was entitled to a discount beyond the customary one-third.  In his written submissions for the purposes of mitigation, all defence counsel had said was:

“In this case, as gathered from the trial bundles as well as the Summary of Facts, there is no direct evidence to show that D1 had knowledge of the dangerous drugs in question even though the same was being carried by him at the time of the arrest. As such, the prosecution could only seek to rely on circumstantial evidence to prove the requisite knowledge of D1 in the trafficking offence. Hence, the 3 non-prejudicial statements given by D2 [the applicant] to the prosecution are of paramount importance to the prosecution case, which in our respectful submission has caused D1 to change his mind and plead guilty subsequently.”

16. Yet, this passage in defence counsel’s written submissions was expressly seized upon by the judge as justification for delving into the contents of the three non-prejudicial statements and holding that the applicant was receiving drugs which he knew had just crossed the border from the Mainland, when all the Summary of Facts had disclosed was that the applicant knew there was cocaine inside the photographs in the recycle bag handed to him by D1; which act, as a matter of chronology, took place some five hours after D1 had crossed the border.  With respect, we think she was wrong in taking this course.

17. It seems to us that counsel had been careful to put the matter in the limited way that he did and rightly resisted the judge’s intention to take into consideration the contents of the non-prejudicial statements.  In truth, he was not asking the judge to look at the contents of those statements at all: all he wished to establish for the purposes of mitigation was the fact that his client had given three non-prejudicial statements, which had caused D1 to change his plea.

18. Accordingly, we accept Mr Wong’s submissions.  We are also endebted to Ms Cheuk for the position she has adopted on behalf of the respondent, which we consider to be both principled and correct.  It is perhaps regrettable that counsel prosecuting on fiat in the trial below stayed silent and did nothing at all to dissuade the judge from adopting the course she proposed.

19. In the circumstances, we grant the applicant leave to appeal against sentence and allow his appeal to the extent that the otherwise entirely proper starting point of 23 years’ imprisonment for the quantity of cocaine concerned should not have been enhanced by 2 years’ imprisonment. Adopting the judge’s discount of around 45% (about which there has been no argument) from what should have been the starting point of 23 years’ imprisonment, the sentence becomes 12 years and 8 months’ imprisonment.

20. Accordingly, the appeal against sentence is allowed to the extent that the applicant’s sentence of 13 years and 9 months’ imprisonment is reduced to 12 years and 8 months’ imprisonment.

[1] The applicant pleaded not guilty to the other count, namely trafficking in 13.68 grammes of a solid containing 9.10 grammes of cocaine, which was left on the court file marked not to be proceeded with without leave of court.