HKSAR v. CHUNG KA LUN

CACC 171/2016

[2018] HKCA 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 171 OF 2016

(ON APPEAL FROM HCCC NO 208 OF 2015)

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J U D G M E N T

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

1.  The applicant faced trial in the High Court before Deputy Judge McMahon (“the judge”) and a jury on a single count of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200. He pleaded not guilty to the offence but, on 30 May 2016, was unanimously convicted after trial. On 31 May 2016, the applicant was sentenced to 15 years’ imprisonment.

2.  The applicant originally sought leave to appeal against both conviction and sentence.  However, in preparing for the appeal, we noted two relevant but unreported decisions of the Court of Appeal of England and Wales, neither of which were referred to in the written submissions and authorities of the parties.  Accordingly, we brought those authorities[1] to the attention of both counsel before the hearing of the appeal.  Mr Ma, on behalf of the applicant, asked for further time to consider the impact of the two authorities, which we duly gave him.

3.  Having taken instructions from his client, Mr Ma indicated to the applicant and this Court that he no longer felt able to argue the appeal against conviction, although he was prepared to advance argument on the applicant’s behalf on the appeal against sentence.  Having ascertained from the applicant that he did not wish to pursue his appeal against conviction in person, we accordingly refused leave to appeal and dismissed the appeal and proceeded to hear the application for leave to appeal against sentence.

4.  However, although we have not had the benefit of oral argument on the ground of appeal originally sought to be advanced in the applicant’s perfected grounds of appeal, we have received full written submissions from both parties supported by authority; albeit their submissions did not deal with the two authorities which we had brought to their attention.  Given the importance of the point, and the frequency with which it is likely to be encountered in practice, we nevertheless consider that it is prudent to say something about the argument for the benefit of judges faced with cases of this nature.

The prosecution case

5.  The prosecution alleged that the applicant had, between an unknown date in November 2012 and 9 January 2013, conspired with Cheung Ka‑chun (“Cheung”) to unlawfully traffic in a dangerous drug, namely methamphetamine hydrochloride (commonly known as “Ice”).  The prosecution relied essentially on the evidence of the accomplice Cheung and, as the judge told the jury, “the fundamental issue in this trial is, you may think, the credibility – that is, the truthfulness and reliability – of the evidence of Cheung”[2] .

6.  It was not in dispute that on 9 January 2013, the applicant and Cheung were travelling together in the rear seat of a taxi which was stopped at a police roadblock in Tin Shui Wai, New Territories.  On the floor where Cheung was sitting was a white plastic bag with, inter alia, four plastic bags containing a total of 138.24 grammes of “Ice”.  Cheung and the applicant were arrested.  Although Cheung was charged and eventually pleaded guilty to the offence of trafficking in the “Ice” seized, the applicant was, after a period of some two months, released without charge.

7.  Sometime later, in about March 2014, Cheung indicated to the authorities that he wished to give evidence against the applicant in this matter, to which end he subsequently made a number of witness statements detailing the arrangements made between the two of them to traffic in dangerous drugs.  It was alleged by Cheung that he would deliver dangerous drugs for the applicant to various different customers and receive payment on his behalf.  The applicant would then reward Cheung’s services with “Ice” for him to consume and, on occasions, sums of money.  As a result of the information given by Cheung, the applicant was re‑arrested for the offence of conspiracy to traffic in a dangerous drug on 22 October 2014.

8.  At the applicant’s trial, Cheung testified that he first met the applicant in April or May 2012 at premises in Tin Shui Wai, New Territories (“the premises”).  Cheung said that he used to go to the premises to consume “Ice”.  Having visited the premises for that purpose over the course of several months, he then began to make purchases of dangerous drugs from the applicant there.

9.  Cheung maintained that after knowing the applicant for four or five months, the applicant asked him to help distribute dangerous drugs.  Cheung agreed, and the arrangement was that the applicant would reward Cheung with “Ice”, and also give him sums of money if he requested. Upon instruction, Cheung would collect the “Ice” from the premises and then distribute it as directed by the applicant.  He would also collect money from the customers and bring it back to the premises to give to the applicant. Having delivered the “Ice”, Cheung would often then stay at the premises to consume “Ice” himself.  He said he had made these deliveries for the applicant on roughly 10 or 20 occasions.

10.  At about 11:40 pm on 8 January 2013, Cheung was again at the premises taking “Ice”.  The applicant called Cheung and asked him to go to Shui Pin Wai in Yuen Long to meet him.  Cheung therefore took a taxi to Yuen Long.  When the two met, the applicant was holding a white plastic bag, in which he said there was “Ice”.  The two men then got into another taxi and went to the vicinity of Hung Hom Cake Factory, where they alighted from the taxi.  The applicant told Cheung to stay where he was while he went to give something to someone.  He disappeared into the village in the vicinity of the cake factory and very soon thereafter re‑appeared.  The two men then hailed another taxi intending to return to the premises.

11.  In the taxi, Cheung sat behind the driver while the applicant sat behind the front passenger seat.  In due course, the taxi came to a roadblock.  Cheung noticed the roadblock first and alerted the applicant, who immediately placed the white plastic bag on the floor of the taxi next to Cheung’s legs.  Cheung said he did not have time to give the bag back to the applicant before the taxi was stopped and police officers shone their torches into the taxi.  Upon discovery of the drugs, the two men were arrested and taken back to Tin Shui Wai Police Station.

12.  At the time of arrest, the applicant was in possession of four mobile telephones and HK$12,874 in cash.  It was his possession of the mobile telephones and a substantial quantity of cash, and how this evidence was to be regarded by the jury, that formed the basis of the original ground of appeal against conviction.

The defence case

13.  The applicant elected not to testify.  His case was therefore put forward through counsel by way of cross-examination and closing submissions.

14.  It was the defence case that Cheung was an unreliable witness, who had lied both to the police and in the witness box. What he had told the police during his video-recorded interviews and admitted in the Summary of Facts at his own trial contradicted important aspects of his oral testimony; one example was the location of the white plastic bag when the taxi was stopped at the police roadblock.  The defence pointed to the Summary of Facts, which Cheung had accepted when pleading guilty, and in which the white plastic bag was said to have been placed between his legs[3] ; however, in evidence he claimed that the white plastic bag had been pushed to his side by the applicant and placed beside his legs.  The defence also challenged Cheung’s evidence on the basis that for some of the time when he claimed he was trafficking drugs on the applicant’s behalf, the applicant was in fact in prison.

15.  The defence suggested that Cheung had an obvious motive to fabricate evidence against the applicant, in order to gain a reduction in the sentence he was serving; further, that he had a grudge with the applicant as a result of being arrested and imprisoned over this incident.  It was put to Cheung in cross-examination that he thought the arrest at the roadblock was a ‘set‑up’ organised in part by the applicant; and that the applicant’s subsequent release without charge had enhanced this belief[4] .  Cheung agreed with this proposition.

Grounds of appeal against conviction

16.  The original ground of appeal put forward on behalf of the applicant complained that the judge erred in his direction to the jury as to how they should consider the cash of HK$12,874 and the four mobile telephones found on the applicant.  It was said that such misdirection served unfairly to enhance the credibility of Cheung, which was the central issue in the case.

17.  The judge had directed the jury that if they thought there might be an innocent explanation for the applicant’s possession of HK$12,800 cash and four mobile telephones, they should ignore the evidence of these items[5] . He went on[6] :

“But if you are sure, on all of the evidence in this case, including the defendant’s possession of those items in the back of the taxi in close proximity to the white bag containing four packets of Ice, that the only reasonable inference is that the defendant had some connection or involvement with the white bag and the drugs it contained, then you can take into account the defendant’s possession of the $12,800 and four mobile phones as evidence capable of supporting the evidence of Cheung.

That is the only use you may make of this evidence. You can only use it as evidence which may support the credibility of Cheung. The evidence of the money and the mobile phones by itself cannot prove the charge against the defendant. It can only be used as evidence for you to decide what weight – that is, what importance – to attach to this evidence”.

18.  It was contended that when evidence of large amounts of money in a defendant’s possession is admitted, the principles and the required directions to the jury are quite clear.  In particular, paragraph 36.1 of the Specimen Directions in Jury Trials, approved by the Hong Kong Judicial Institute, provides that:

“The prosecution has called evidence that the defendant [eg was found to be in possession of money] ...

That evidence, if you accept it, does not by itself prove anything against the defendant. However, if you are sure that:

(a) the defendant was indeed [in possession of this money…];

(b) the defendant’s explanation for the [money …] is untrue; and

(c) the [money …] can only be explained by continuing unlawful trafficking in drugs as opposed to unlawfully trafficking in drugs in the past,

you may, if you think fit, take that evidence into account when deciding whether the defendant was unlawfully trafficking in drugs as alleged in the indictment.” (Emphasis supplied)

19.  It was submitted that the verdict was rendered unsafe and unsatisfactory when the judge failed to follow the italicised part of the above direction at (c).  Firstly, the judge’s directions failed to tell the jury that before they could take evidence of the applicant’s possession of money into account, they must be satisfied that the money could only be explained by continuing unlawful trafficking as distinct from past trafficking.

20.  Secondly, there was a clear factual dispute as to whether the applicant was in possession of the dangerous drugs.  Since the issue of the possession of the money would not normally be relevant to the disputed question of possession of the drugs, there was therefore a danger that the jury might misuse the evidence.

21.  Thirdly, the judge was wrong to direct the jury that the applicant’s possession of the cash and the mobile telephones could be used to support the general credibility of Cheung, which was a central issue in the case.  Finally, the direction was likely to cause confusion.

The respondent’s submissions (on conviction)

22.  In his response to the appeal, Mr Jonathan Man, on behalf of the respondent, submitted that the judge had properly tailored his direction to the evidence in the case.  Mr Man drew a distinction between a substantive offence of unlawful trafficking and a conspiracy to traffic in dangerous drugs.  In the former, a direction along the lines of (c) in the specimen direction may be necessary, if the prosecution were seeking to use money found in the defendant’s possession to prove that “the defendant was unlawfully trafficking in drugs as alleged in the indictment”.  In the present case, however, the allegation was one of conspiracy to traffic in dangerous drugs, which had begun much earlier in November 2012, yet the applicant was arrested on 9 January 2013.  The whole basis of the prosecution case, therefore, was that the applicant had been trafficking long before he was arrested pursuant to a continuing conspiracy.  Therefore, the money and the four mobile telephones supported Cheung’s evidence of a conspiracy which began towards the end of the previous year.

23.  Notwithstanding the distinction between conspiracy and a substantive offence, the judge was nevertheless concerned that the jury might misuse the finding of the cash and mobile telephones in the applicant’s possession as “independent proof”[7] that the applicant was a drug trafficker.  Accordingly, in discussions with counsel before the summing‑up, he said[8] :

“…So I think if the jury does not get a direction as to how to deal with this they may jump to the conclusion that a person driving around in the back seat of a taxi with drugs on the floor and somebody next to him who subsequently says in evidence that the defendant was trading in drugs that evening, the jury might simply say, well, there is proof that he was a drug dealer. There is no other explanation as to what it could have come from. …

What I want to do is to make sure the jury don’t jump to conclusions.”

24.  The judge went on to express his view as to how this danger could be avoided[9] :

“So the best that we can do here perhaps is to say this is consistent with the evidence of Cheung but they shouldn’t speculate any further than that. It goes to credibility of Cheung in that sense. It’s not independent proof that there is drug trafficking going on. I wanted you to think about this because it could be relevant to the jury’s consideration and unless they are pointed in the right direction they may start jumping to various conclusions.”

25.  The judge therefore suggested a direction tailored to the present case and asked for counsel’s views.  Defence counsel, not Mr Ma, agreed with the judge’s suggestion.  The respondent has submitted that the resulting direction was entirely fair and instructed the jury that they were to ignore the evidence if they thought “there may be some explanation for the defendant’s possession of those items for some reason other than drug trafficking”.

26.  Mr Man further contended that the evidence of the cash and the mobile telephones obviously had evidential value as a matter of common sense.  First, the possession of no less than four mobile telephones was plainly designed to avoid tracing by the authorities.  Secondly, the cash was in the applicant’s possession in a taxi in the early hours of the morning rather than at his home, where one would expect the proceeds of past criminal activities to be kept.  It was not believable that the applicant would have had such a large amount of cash on him unrelated to his ongoing trafficking activities.  In the circumstances, the judge was right to adapt the direction to the circumstances of the case.

Discussion

27.  It is true that the judge did not give the direction specified at (c) of the standard direction set out at paragraph 18 above.  However, this was a case of conspiracy not a substantive offence, which had been in existence for some considerable time before the arrest of the applicant and the seizure of the money and mobile telephones.  We think it would have confused the jury, in the circumstances of such a conspiracy, to be told that they could only take such evidence into account if satisfied that the possession of the items could be explained by continuing trafficking in drugs as distinct from past trafficking.  The whole basis of the prosecution case was that this was a continuing conspiracy between two men, of which the events of 9 January 2013 were an act in furtherance of the conspiracy.  In our judgment, in such circumstances, section (c) of the standard direction was unnecessary and confusing, and the judge was right to tailor his directions by omitting it.

28.  Moreover, the direction he did give came after discussions with both counsel and without any demur from defence counsel.  It should be remembered that the applicant did not give evidence, nor did he call any evidence which might have explained the large sum of money and the four telephones he was carrying at 2:10 am on 9 January 2013 in a taxi in the New Territories. Nevertheless, the judge was still concerned to ensure that simply because the applicant had a lot of cash on him at that time of night and place, they should not “jump to the conclusion” that he must be a drug dealer[10] .  Accordingly, he engaged counsel on the issue and asked them to think about it[11] .  When he then asked both counsel directly what they thought of the direction he was going to give, defence counsel said it was “fair”[12] , while prosecuting counsel considered it was “as impartial as it can be”[13] .

29.  Indeed, the direction was extremely fair.  It instructed the jury that if there might be an explanation for the applicant’s possession of the items other than trafficking in dangerous drugs, they should simply ignore the evidence.  However, if they were sure the cash and four mobile telephones were connected with the drugs, then the only use they could make of the evidence was as support for Cheung’s credibility.  The judge emphasised that by itself such evidence could not prove the charge against the applicant.  In our judgment, however, the evidence was capable of going further than merely supporting Cheung’s credibility: in the absence of any other evidence to explain it, such evidence tended to confirm the existence of the conspiracy itself.  Accordingly, no complaint could conceivably be made about the judge’s direction, particularly when it was obviously fair to the applicant, and was plainly perceived to be so by defence counsel.

30.  In the applicant’s original submissions in support of his appeal against conviction, reliance was placed by the applicant on the case of R v Grant[14] , from which we take it paragraph (c) of the specimen direction in Hong Kong is derived.  The appellant in Grant was, of course, charged with possession of a class A controlled drug with intent to supply, not with conspiracy to supply a class A controlled drug.  Grant was subsequently considered in R v Graham[15] , where the second ground of appeal before the Court of Appeal of England and Wales was, as in the case before us, that the judge had failed properly to direct the jury on the use the jury could make of more than £3,000 in cash which had been discovered in the applicant’s flat, where 61 grammes of ecstasy were also seized.  The complaint was that the judge had directed the jury that they had to find that the money was evidence of drug dealing, whereas he should have told them that it must be evidence not just of past dealing but of continuing dealing.  In Graham, as in Grant, the appellant was convicted, inter alia, of possession of a class A controlled drug with intent to supply, not of conspiracy to supply a controlled drug.

31.  Toulson LJ (as he then was), giving the judgment of the Court, cited the very passage in Grant, at 78D‑F, on which the applicant before us relied, and continued:

“23. The criticism made is that the judge should have gone on to say that, even if they were satisfied that the money was the result of dealing in drugs, they could not treat it as evidence of a current intent to supply unless satisfied that the presence of the money indicated not merely past dealing but that the appellant was an ongoing drugs dealer. The reason why a drugs dealer will often have significant quantities of cash is two‑fold. He will have obtained the money from sales and intend to use it for purchases. That is the nature of being a drug dealer, as would be obvious to any jury. Logically, the more recent the sales, the stronger will be the case that he is a drug dealer and not merely an ex‑drug dealer. In this case there was no positive evidence as to the date of any prior sales. There was no suggestion from the appellant that this money was of historic origin. Quite the reverse. His case was that he had come by it recently, albeit from a source which the jury must have rejected.

24. In these particular circumstances, we do not think that it was incumbent on the judge to complicate or lengthen his direction by giving them a specific direction that they needed to consider, if they were satisfied that the money simply came from the sale of drugs, whether it was more than merely past behaviour of an ex-drug dealer.

…..

26.  In this particular case, given that the appellant’s own case was that he had received the money recently, and that there was no suggestion that it came from some purely historic transaction, the real issue for the jury in relation to the money at the flat was whether they accepted that his explanation might be true, or could think of any other plausible explanation apart from his being a drug dealer. That issue was put to the jury squarely by the judge.”

32.  Graham was followed in R v Harrison[16] , where the Court held, that:

“An elaborate direction about past and future dealing was not needed. The real issue in this case was whether the appellant’s explanation for the presence of cash might be true, not whether the money was from past drug dealing or funds for future drug dealing”.

We observe, again, that the appellant in Harrison was convicted, inter alia, of possession of a controlled class B drug with intent to supply, not with conspiracy to supply a controlled drug.  Yet, even in those circumstances, the omission of subsection (c) of the equivalent direction was not deemed fatal.  As we have said, the judge’s modified direction was extremely favourable to the applicant and only permitted the jury to make limited use of this evidence.

33.  As explained, it did not ultimately become necessary to determine the applicant’s appeal against conviction.  However, it will be clear from our reasoning that we would have refused leave to appeal on the point.  We turn now to the appeal against sentence.

Mitigation and reasons for sentence

34.  The applicant was 34 years of age at the time of sentence.  He had 19 previous convictions involving 44 separate offences, including 8 convictions for possession of dangerous drugs.  He had no previous convictions for trafficking.

35.  The applicant’s counsel at trial acknowledged in mitigation that for a charge of conspiracy to traffic in dangerous drugs, the court would need to determine the amount of dangerous drugs involved in the conspiracy.  The evidence at trial established that the conspiracy began on an unspecified day in November 2012.  The applicant and Cheung were arrested on 9 January 2013.  During that period, Cheung testified, albeit somewhat vaguely, that there had been roughly 10 to 20 transactions.  The 138.24 grammes of “Ice” seized were clearly part of the conspiracy, but separate from the 10 to 20 transactions.

36.  Defence counsel submitted that there was no evidence as to how many drugs were distributed each time.  According to Cheung, at the peak of the conspiracy, he would be given 5 to 6 packets of drugs for distribution and each packet would be about half a gramme in weight of “Ice”. He urged the court to give the benefit of any uncertainty as to quantity to the applicant by adopting the lower number of transactions (namely, 10 rather than 20), with a total of 2 to 3 grammes involved each time, giving a total amount trafficked in the conspiracy period before 9 January 2013 of 30 grammes of “Ice”.  Accordingly, he invited the court to act on the quantity of 138.24 grammes seized at the time of arrest, plus a notional extra amount of about 30 grammes.

37.  In sentencing, the judge accepted, on the basis of Cheung’s evidence, that the conspiracy lasted for about one month and that Cheung was a middleman acting for the applicant in selling “Ice” to addicts.  Further, on the night of his arrest, Cheung had been asked to accompany the applicant to obtain more drugs to replenish his stock.  The applicant, by contrast, was the leading, or major, figure in the conspiracy.  The judge determined that the appropriate starting point for sentence should be 15 years’ imprisonment.  He considered that there was no mitigation of any substance justifying any further reduction.  Accordingly, the applicant was sentenced to 15 years’ imprisonment.

Grounds of appeal against sentence

38.  Mr Ma complains that the judge was wrong to ignore the relevant sentencing guidelines in Attorney General v Ching Kwok Hung[17] .  The judge had remarked to defence counsel during mitigation[18] :

“…I don’t think tariffs enter into this in any particular way. It’s a conspiracy, a continuing offence with an uncertain amount of drugs being dealt with over the period of time of the conspiracy.”

39.  Since this was a case of conspiracy to traffic in dangerous drugs where the quantity of drugs could not be accurately assessed, Mr Ma drew our attention to the Court’s decision in HKSAR v Chan Kam Loi[19] :

“102. The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the Court to have recourse to the quantity based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the Court to impose a just sentence.”

He submitted that in the present case, an examination of the evidence would have enabled the judge to reach a fair assessment of the amount of dangerous drugs being trafficked, and that he should then have had recourse to the sentencing bands in Ching Kwok Hung.  There were other relevant factors, which should also have been taken into account in assessing the gravity of the offence and the just level of punishment, namely: the conspiracy did not involve an international element; it lasted for about a month; it only involved two people; and, despite his lengthy criminal record, the applicant had never been convicted of an offence of drug trafficking.

40.  Applying the Ching Kwok Hung guidelines arithmetically to the quantity of dangerous drugs seized from the taxi, namely 138.24 grammes of “Ice”, a starting point of 11 years and 2 months’ imprisonment was indicated.

41.  When the evidence was not sufficient for the sentencing court to arrive at a precise quantification of the quantity of drugs involved, reasonable assumptions and allowances most favourable to the defendant should be made.  Mr Ma relied on the decision in HKSAR v Tsang Ka Wing[20] , where the Court held that “unless the facts which give rise to the inferences and assumptions are clear‑cut, they will inevitably lean in favour of the defence”.  Mr Ma suggested that the sentencing court could on that basis only take into account a further quantity of 30 grammes of “Ice” in the conspiracy.  Applying an arithmetic approach to the resulting amount would have produced a starting point of 11 years and 8 months’ imprisonment under the applicable guidelines.  Accordingly, a sentence of 15 years’ imprisonment after trial was manifestly excessive.

The respondent’s submissions (on sentence)

42.  Mr Man submitted that the judge would have well known the relevant guidelines in respect of “Ice”.  However, he was entitled to draw the obvious inference that during the period of the conspiracy, a larger amount of dangerous drugs would have been involved in the conspiracy.

43.  Furthermore, the judge described the applicant as “the leading figure in the conspiracy”[21] or “the major figure in their two‑man conspiracy”[22] , as distinct from Cheung, who was “a middleman”[23] .   Moreover, the applicant had taken advantage of Cheung’s dependence on “Ice” to keep him working for him in exchange for “Ice” and money.  In the circumstances, and having heard the evidence, the judge was entitled to adopt a higher starting point than a simple application of guideline to supposed quantity warranted.

Discussion

44.  If one were to try to adopt a strictly arithmetic approach to the somewhat general and imprecise evidence of Cheung as to the quantity of “Ice” used in the conspiracy, namely some 10 occasions (as opposed to 20 occasions) in which a total of some 30 grammes of “Ice” were trafficked, the result would we think be unrealistic.  This was an ongoing conspiracy, which had begun some time in November 2012 and continued through until 9 January 2013.  As the judge pointed out[24] , the events of 9 January 2013 were not a single transaction, and a conspiracy involving multiple transactions is much more serious than trafficking on one occasion.  Moreover, the conspiracy only came to an end because of the arrest of the applicant and Cheung on 9 January 2013, otherwise it would inevitably have continued.

45.  One must also bear in mind that the extent of the applicant’s use of Cheung in his trafficking activities was not simply in peddling drugs to drug addicts.  Cheung described in evidence how, late on 8 January 2013, the applicant had[25] :

“called me asking me to go out to Shui Pin Wai to act as a lookout for him and I knew that he was going to buy some dangerous drugs”.

When he subsequently arrived in Shui Pin Wai, Cheung took up position on the ground floor of a particular building and was asked by the applicant on the telephone “whether there were any police officers around”[26] . Clearly, as the judge found, the applicant was in such circumstances also making use of Cheung to help him “to replenish his stock”[27] .

46.  Furthermore, it is clear from the evidence, and the judge rightly found, that the applicant was the leading figure in the conspiracy.  The guidelines for trafficking in dangerous drugs, assuming their applicability, are clearly aimed at couriers: see R v Leung Kim Wah[28] ; HKSAR v Manalo[29] ; HKSAR v Leung Kwai Ping & Another (No 2)[30] ; HKSAR v Law Num Chun[31] . The applicant was no mere courier and was considerably further up the drug trafficking hierarchy.  When it is clear that a defendant is more than a mere courier of dangerous drugs, as in this case the organiser of a conspiracy to supply “Ice” to drug addicts, it is right that the sentence should be enhanced to reflect this more culpable role.

47.  In our judgment, the judge was right to reflect in his sentence the duration of the conspiracy, the fact that it involved multiple offences of trafficking (which included using Cheung to buy drugs as well as sell them to customers) and the applicant’s role as its organiser. Furthermore, the applicant had cynically made use of Cheung’s dependence on “Ice” to help him traffic dangerous drugs to others.  Cheung explained in evidence how he could not earn enough money from his part‑time job to pay for his “Ice” habit[32] , a vulnerability which the applicant was more than ready to exploit.

48.  In all the circumstances, we do not consider the sentence of 15 years’ imprisonment after trial for this offence to be manifestly excessive or wrong in principle.  The application for leave to appeal against sentence is accordingly refused and the appeal dismissed.

Computation of sentence

49.  At the conclusion of his reply, Mr Ma brought to our attention that because of an omission from the High Court Certificate of Sentence sent to the Correctional Services Department upon conviction, the period of custody between 9 January 2013 (the date of arrest) and 8 March 2013 (the date of release) had not been computed as part of his sentence.  It seems that the reason may have been that a different case number was allocated at his subsequent re‑arrest on 22 October 2014, as a result of which the earlier period of incarceration following his original arrest was simply not included in the schedule of imprisonment under the current case number.

50.  Whatever the reason, it is accepted by the respondent that the 2‑month period in question has not been computed as part of the applicant’s sentence.  It is right, therefore, that we should indicate that it should be and the matter will accordingly be brought to the attention of the Correctional Services Department.

[1] R v Graham [2007] EWCA (Crim) 1499; R v Harrison [2014] EWCA (Crim) 874.

[2] AB, p 15M-N.

[3] AB, p 73, paragraph 3.

[4] AB, p 187N-Q.

[5] AB, p 22H-K.

[6] AB, p 22K-S.

[7] AB, p 235C; 236A.

[8] AB, p 234N-T.

[9] AB, p 235B-E.

[10] AB, p 234O-Q.

[11] AB, p 235C; 235G.

[12] AB, p 236H.

[13] AB, p 236J.

[14] R v Grant [1996] 1 Cr App R 73.

[15] R v Graham [2007] EWCA (Crim) 1499.

[16] R v Harrison [2014] EWCA (Crim) 874.

[17] Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

[18] AB, p 57E-G.

[19] HKSAR v Chan Kam Loi (unrep., CACC 410/2012, 30 January 2014).

[20] HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, at paragraph 33.

[21] AB, p 60F.

[22] AB, p 60N.

[23] AB, p 60E.

[24] AB, p 53E-F.

[25] AB, p 171G-H.

[26] AB, p 172A-B.

[27] AB, p 60G.

[28] R v Leung Kim Wah (unrep., CACC 442/1992, 6 July 1993).

[29] HKSAR v Manalo [2001] 1 HKLRD 557.

[30] HKSAR v Leung Kwai Ping & Another (No 2) [2003] 2 HKC 575.

[31] HKSAR v Law Num Chun [2014] 5 HKLRD 500.

[32] AB, p 29P-Q.