HKSAR v. CHU KWOK CHU

CACC 371/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 371 OF 2012

(ON APPEAL FROM HCCC NO. 228 OF 2012)

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant (Chu Kwok Chu) was intercepted by the police in the street when he and his companion were found to be acting suspiciously.  They claimed to be on their way to visit a friend called Rachel. They were taken to the premises where Rachel lived.  The police found drugs and packaging paraphernalia inside the premises.  Rachel asked for a chance, saying that the “white powder” was for her own consumption.

2.  The applicant then told the officer that he had swallowed three ounces of heroin and he was taken to the Caritas Medical Centre where he excreted three packets of heroin (118.9 grammes of a solid containing 74.81 grammes of heroin hydrochloride).  The applicant admitted that he swallowed the heroin after purchasing them in the Mainland before he returned to Hong Kong.

3.  The applicant was charged with unlawfully trafficking in the dangerous drugs in question.  He pleaded guilty at the Magistrates’ Court and was committed to the High Court for sentence.

4.  On 27 August 2012, Deputy High Court Judge A Wong (the judge) sentenced the applicant to 6 years and 8 months’ imprisonment.  The judge pointed out that under the sentencing guidelines in R v Lau Tak Ming [1990] 2 HKLR 370, the starting point should be 8 to 12 years’ imprisonment.  It appeared that the judge had in fact adopted a basic starting point of 8½ years’ imprisonment.

5.  The judge took the view that the starting point should be enhanced by 1½ years to reflect the applicant’s previous convictions and the fact that he took the drugs into Hong Kong from the Mainland.  The enhanced starting point of 10 years’ imprisonment was reduced by one-third to 6 years and 8 months on account of the guilty plea.

6.  Represented by Mr David Boyton, the applicant sought leave to appeal against sentence.  At the end of the hearing on 3 May 2013, we dismissed the application and indicated that we would hand down our reasons in due course.  These are the reasons.

The Applicant’s Background

7.  The applicant was born on 4 June 1966, is single and at the time of his arrest was employed on a casual basis.  He said he had to contribute about $2,000 a month to support his 85-year old mother.

8.  The applicant had been convicted on 17 occasions involving a total of 25 charges and most of the charges were drug related.  He had been convicted of 13 charges of possession of a dangerous drug; 4 charges of keeping a divan; and 4 charges of trafficking in dangerous drugs.  There were also 2 convictions of managing a vice establishment, 1 conviction of going equipped for stealing and 1 conviction of failing to surrender to custody without reasonable cause.

Grounds of Appeal

9.  Mr Boyton accepted that the basic starting point of 8½ years adopted by the judge was a correct one, but suggested that the enhancement of 1½ years was excessive.  Mr Boyton referred to a number of cases to support his contentions.  Mr Boyton emphasized that the applicant’s previous convictions for drug trafficking involved only relatively small amounts of dangerous drugs.

10.  Mr Boyton pointed out that the applicant voluntarily disclosed the fact that he took the drugs across the border during the interview with the police.  Mr Boyton suggested that the applicant should be given credit for his frank admission without which he would not have received the enhancement for bringing the drugs to Hong Kong.  Mr Boyton suggested that the credit should be reflected in a reduced enhancement.

11.  Mr Boyton suggested that the overall starting point of 10 years’ imprisonment adopted by the judge was manifestly excessive.

Discussion

12.  The basic starting point of 8½ years adopted by the judge, in the light of the quantity of drugs involved, is in line with the guidelines laid down in Lau Tak Ming (supra) and is clearly appropriate.  There can be no dispute that the applicant’s previous convictions and the cross border element could lead to an enhancement of sentence.

13.  The only issue is whether the judge was justified in enhancing the basic starting point by 1½ years to 10 years on the two factors, namely the applicant’s previous convictions and the cross border element, bearing in mind that such an enhancement rested on the discretion of the judge.

14.  The need to impose a deterrent sentence on persistent offenders, from whom the public needs protection, is always recognized by the court.  In HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 at p 834 C- E, Stuart- Moore VP said:

“The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.

In drug trafficking cases, this was clearly recognised in R v Lau Tak Ming…at p.386F where the Court said:

Within the suggested bands, factors which the sentencing judge may properly take into account are:…his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf…(Emphasis added.)”

15.  In HKSAR v Abdallah [2009] 2 HKLRD 437, Stuart-Moore VP again pointed out that in drug trafficking cases where an international element is involved or where the trafficker has previously been convicted of trafficking in dangerous drugs, an enhancement of the starting points as set out in Lau Tak Ming (supra) is called for. (See p 543 para 42 of the judgment)

16.  The Court further suggested that the enhancement, for any of the itemised reasons, for an amount above 1 kg should not be less than 2 years’ imprisonment.

17.  The authorities did not specify the extent of the enhancement for a lesser quantity of drug and clearly it was considered more appropriate to be left to the discretion of the individual judge.  As this is an exercise of discretion and unless it can be demonstrated that the judge was wrong, we did not consider it proper to interfere.

18.  The applicant has been convicted of a total of 20 charges of drug offences, 4 of which were trafficking in dangerous drugs.

19.  The applicant, having purchased the heroin in question in Guangdong, swallowed them and together with another took a bus to return to Hong Kong.  The way the applicant concealed the drugs made it very difficult for law enforcement agent to detect his crime.

20.  Mr Boyton emphasized that the only evidence of the applicant’s importation of the dangerous drugs was from his admission.  He suggested that such a factor entitled the applicant to be afforded a further discount of sentence and that such discount should be reflected in a lesser enhancement.

21.  We accepted that there had been cases where the court gave greater discount of sentence upon a plea than the normal discount when the defendant pleaded guilty notwithstanding a lack of sufficient evidence to prove his guilt or where but for the voluntary confession, the defendant would not have been found guilty of the offence.

22.  In HKSAR v Hui Chi Tong (unreported CACC 414/2007), the Court of Appeal said:

“But for the voluntary confession, the applicant would not have been found guilty of 1^st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to ‘own-up’ to his misdeed and to face the consequence. The most effective way of giving encouragement is to give a greater than normal discount upon a plea.”

23.  In HKSAR v Tsang Kai On [2011] 2 HKLRD 340, the Court of Appeal made similar comments in para 14 of the judgment:

“That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful. In these circumstances, the court should give a further discount to the applicant as an encouragement. This is also in the public interest…”

24.  The Court of Final Appeal, in Yu Fai Tat v HKSAR (2004) 7 HKCFAR 293, did not find the practice of giving a further discount of sentence to a defendant, in addition to the usual one-third, for agreeing part of the prosecution case objectionable.  At p 299 B – C of the judgment, Sir Derek Cons NPJ said:

“…Had the judge below been satisfied that there did exist a practice of further discount, we would not have expected her to strike out the practice, as it were, retrospectively but to lay down instead guidance to magistrates in the future…”

25.  The fact that a judge may, in the exercise of his discretion, give a defendant, who voluntarily confesses to the offence and without whose confession the prosecution would have no evidence against him or who voluntarily pleads guilty notwithstanding a lack of sufficient evidence, a further discount of sentence other than the usual one-third does not mean that where a judge refuses to do so, the defendant will have a legitimate complaint and can successfully appeal against such a refusal.

26.  The situation had been carefully analysed in HKSAR v Ma Ming [2013] 1 HKLRD 813.  The Court held that:

(1)     Giving a defendant a one-third discount for a timely plea was the norm rather than the exception.  It was a policy decision which served the public interest, by ensuring that justice was administered more efficiently and expeditiously.

(2)     Here, the fact of D’s co-operation with the police and his confession after arrest which led to Charge 1 should be subsumed within the one-third discount.  It was not a reason for any further discount and the denial of a discount beyond the one-third was not a ground of appeal against sentence.

27.  We were satisfied that the judge was entitled to, in the exercise of his discretion, enhance the starting point applicable to the charge against the applicant to 10 years’ imprisonment and to only give him the usual one-third discount of sentence upon his plea of guilty even when the evidence of importation only came from the applicant himself.

28.  We wish to repeat what Lord Justice-General (Rodger) of the Scottish High Court of Justiciary said in HM Advocate v Wheldon 1999 JC 5 at p 22A to C:

“What, in my opinion, is equally important in the role of the appeal court addressing this question is the extent to which the trial judge has a discretion in the sentence he imposes and in my view the issue focused in this case on appeal should be approached in much the same way as any appeal court reviews a discretion conferred upon and exercised by a lower court in any context. Has the trial judge left out of the equation factors he should have taken into account? Has he taken account of factors he should not or at the end of the day has he acted irrationally? These seem to me to be the central issues and as a matter of generality it therefore seems to me that it may be very difficult for the Crown to successfully interfere on appeal with a sentence imposed by a trial judge who supports it by clear and rational argument based upon the facts of the case, whether presented on a tendering of a plea or based, as in this case, upon evidence given before the trial terminated.”

29.  Whilst the approach adopted by the judge might not have been a particularly lenient one, the judge had taken into account all relevant factors and had not taken into account irrelevant factors and that he had not acted irrationally.  There is, therefore, nothing to point to the judge’s exercise of discretion having miscarried and, given the number and nature of aggravating factors it cannot be said that an enhancement of 18 months is manifestly excessive.

30.  The sentence imposed on the applicant by the judge may well be a stiff one, but as it was neither manifestly excessive nor the result of a miscarriage of discretion, there was no valid basis upon which we could interfere.

31.  The application for leave to appeal against sentence was, therefore, dismissed.