HKSAR v. SO YAT TING

CACC 175/2019

[2020] HKCA 150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 175 OF 2019

(ON APPEAL FROM HCCC NO 301 OF 2018)

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J U D G M E N T

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1.  The applicant was charged with attempting to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200. It was alleged that, on 3 November 2017, in the New Territories, the applicant attempted to unlawfully traffic in 970 grammes of a powder containing 809 grammes of cocaine.

2.  On 24 September 2018, the applicant appeared in the Magistrate’s Court and indicated that he would plead not guilty to the charge.  As a consequence, his case was committed to the Court of First Instance for trial.  A case management hearing was conducted on 22 February 2019 and the applicant again indicated that he would plead not guilty to the charge.  A trial was fixed for 30 May 2019.

3.  On 24 April 2019, the prosecution filed a notice of additional evidence in relation to WhatsApp messages that had been extracted from the applicant’s mobile telephone and a forensic examination report dated 12 April 2019.

4.  On 21 May 2019, about nine days prior to the commencement of the trial, counsel for the applicant informed the court and the prosecution that after consideration of the additional new evidence the applicant would change his plea to one of guilty.  The trial dates were vacated and the  case was set down for plea and sentence on 30 May 2019.

5.  A brief summary of the facts that the applicant agreed when he pleaded guilty to the charge were as follows.  On 3 November 2017, a parcel was intercepted at the Express Cargo Terminal of the Hong Kong International Airport for examination.  The parcel was described as containing “CERAMICS” which had been posted from Peru to Hong Kong.  The parcel was addressed to “SO YAT TING” at “LOHAS PARK, TSEUNG KWAN O, L WING PHASE 2B LE PRIME, RM 28 TOWER 7 (contact no: +852 5345 0362)”.  Concealed inside the parcel in a false bottom of a styrofoam box, containing ceramic figures, were the drugs particularised in the charge.

6.  Later in the afternoon of 3 November 2017, at around 13:12 hours, Customs officers had an exchange of calls with the telephone number recorded on the parcel, which was used by the applicant.  A Customs officer spoke to the applicant, who confirmed that he was the recipient of the parcel.  He also provided the tracking number of the parcel.  He was requested to provide proof of address for receiving the parcel as the airway bill address was incomplete.  In response, the applicant gave the address on the parcel.  He then requested that the parcel be delivered that afternoon. There followed an exchange of telephone calls in which arrangements were made for the parcel to be delivered to him at the roundabout near the entrance of Le Prestige at Lohas Park. 

7.  A Customs officer attended the delivery address as arranged, where he met the applicant.  He confirmed with the applicant that he was Mr So, the recipient of the parcel.  The applicant produced his Hong Kong Identity Card, together with a piece of paper on which was listed the tracking number of the parcel.  The applicant then signed a collection receipt for the parcel.

8.  After he received the parcel, the applicant was arrested and cautioned.  He initially said that he did not have knowledge of the contents of the parcel and that he was simply helping someone to collect it.  The applicant later revealed that he was a middleman collecting the parcel for “Xiong Zai”, whom he would telephone once he received the parcel.  The applicant declined to participate in a controlled delivery operation. 

9.  The occupant of the address listed on the airway bill had no knowledge of the parcel or its contents.

10.  As part of the summary of facts, the applicant admitted and accepted that he had attempted to traffic in the dangerous drugs as particularised in the charge.

11.  Ms Karen Y Y Lau, for the applicant, advances two grounds of appeal against the applicant’s sentence.  I shall deal with each ground in turn.

12.  The first ground complains that the discount given by the judge for the applicant’s guilty plea of 20% was too low.  Ms Lau submits that the applicant should have received a discount of 25%.  She argues that the judge erred in not considering all other relevant circumstances, namely (i) the prosecution only filed the additional evidence of the WhatsApp messages extracted from the applicant’s telephone on 24 April 2019; (ii) the applicant informed the court of his intention to plead guilty on 21 May 2019, having considered the new evidence; and (iii) the prosecution did not raise the issue that they were preparing further evidence during the case management hearing on 22 February 2019.

13.  The judge mentioned in his reasons for sentence that he had considered the applicant’s argument that the applicant only learnt about the analysis of the WhatsApp record near the end of April 2019, when the prosecution filed the additional evidence.  However, the judge considered that this fact did not warrant a departure from the sentencing guidelines.  He explained, in his view, the applicant did not need the record to confirm whether he knew there was a dangerous drug in the parcel.  The judge noted that the applicant indicated on 21 May 2019 that he would plead guilty on the first day of trial, that is, 30 May 2019.  He explained that, in those circumstances, the applicant should receive a 20% discount for his guilty plea. 

14.  When sentencing the applicant, the judge adopted a starting point of 21 years’ imprisonment for 809 grammes of cocaine narcotic.  This was in accordance with the sentencing guidelines.  The judge enhanced the sentence by 1 year and 6 months for the international element and a further 6 months for the applicant’s previous conviction for drug trafficking in 2010.  After reducing the notional sentence by 20% for the applicant’s late plea, the judge sentenced the applicant to 18 years and 5 months’ imprisonment.

15.  It was held in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, at [214], that the range of discount to be afforded to a defendant who indicates to the court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between 25% and 20%.  This is subject to the overriding discretion of the judge in sentencing.

16.  I do consider this ground of appeal to be reasonably arguable.  Whilst it was within the judge’s discretion, as guided by the considerations laid out in Ngo Van Nam, to award the applicant a 20% discount for his late plea of guilty, that is suggested as an appropriate percentage when a plea of guilty is entered on the first day of trial.  In the present case, the applicant through his legal representatives indicated he would plead guilty well before the trial date. 

17.  The second ground complains that the enhancement of 6 months to the applicant’s sentence for one previous conviction for drug trafficking was too severe.  No issue is taken with the starting point, nor with the enhancement for the international element.

18.  In HKSAR v Har Tsz Yui, unrep., CACC 18/2019, 29 November 2019, the Court of Appeal held it was open to a judge to enhance the sentence due to the repeat nature of offending by a defendant for serious offences.  Macrae VP, giving the judgment of the Court, pointed out that the aggravating feature of a defendant being a repeat offender is not susceptible to arithmetical application of percentage enhancements.  He explained that it will depend on the nature and seriousness of the offence, the extent of the defendant’s criminal record, and the need for personal and public deterrence.  He went on to further explain:

“18. Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which a judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.

19.  Macrae VP enchoed previous curial pronouncements that a sentencing court when determining an enhancement to a sentence against a recidivist should ensure that: (1) the original starting point must be proportionate to the actual sentence;[1] and (2) the degree of enhancement must be in reasonable proportion to the basic sentence, and the total should not be excessive.[2]

20.  The applicant was sentenced for his prior drug trafficking conviction on 25 August 2010, for which he was sentenced to 4 years and 8 months’ imprisonment.  The question arises whether this was a case deserving of an enhancement, and if it was, did the judge take into account the aggregate of 6 months, for the repeat offending, and 1 year and 6 months, for the international element, together with the high sentence for the substantive offence.  See HKSAR v Islam Azharul, unrep., CACC 98/2019, 7 January 2020, at [17] and [20].

21.  I accept that there are reasonably arguable grounds of appeal against sentence that (i) the discount for the applicant’s plea of guilty should have been greater than 20%; and (ii) the enhancement for a previous conviction was not warranted in light of the circumstances of the case, and if it was, did not take into account the totality of the enhancements together with the notional sentence to be imposed on the applicant.

22.  Accordingly, I grant the applicant leave to appeal against sentence.

[1] HKSAR v Lam Kwai Wa, unrep., HCMA 1078/2002, 13 December 2002.

[2] HKSAR v Le Huu Nghi, unrep., CACC 31/2017, 22 September 2017.