HKSAR v. LIU WAI CHUN

CACC 101/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 101 OF 2001

(ON APPEAL FROM DCCC NO. 82 OF 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 These were appeals, by leave of the single judge, in two separate cases. Since the same issue arose in respect of each, the appeals were, by order of the single judge, consolidated. On 14 December 2001, we dismissed each appeal, and said that we would give reasons later. This we now do.

Leung Kwai Ping: Crim App 101 of 2001

2 The police arrested this appellant on the evening of 7 December 2000 outside Chi Lok Fa Yuen market in Tuen Mun, and they searched him. In his underpants were found 80 packets containing a total of 63.05 grammes of a mixture containing 17.09 grammes of heroin hydrochloride. He was charged with trafficking in that quantity, and pleaded guilty in the District Court. He told the police that he was delivering the drugs for another and was to be paid $5,000 for doing so. The judge took a starting point of six years' imprisonment and, given the applicant's guilty plea, he sentenced him to a term of four years' imprisonment. The applicant is aged 27 years, and has a number of previous convictions, including two for possession of dangerous drugs.

Liu Wai Chun: Crim App 144 of 2001

3 This appellant was arrested on 5 December 2000 at night in Lai Chi Kok Road. She was carrying a handbag which contained four resealable packets of heroin in brick form, and one packet of heroin in powder form. The five packets contained a total of 124.44 grammes of a mixture containing 39.08 grammes of heroin, and she was charged in the District Court with trafficking in that amount. She, too, pleaded guilty. She told the police that she was carrying the drugs for someone else who was going to reward her in the sum of several hundred dollars. This appellant is aged 51 years, and she has several previous convictions for theft. In sentencing the appellant, the judge said that he accepted that she was a courier, but he added that even "for a person in that category, the Lau Tak Ming tariffs apply and that case says that for people who traffick in quantities of heroin between 10 and 50 grammes they should receive prison sentences of between five and eight years." He said that the correct starting point for the quantity of drugs in which she was dealing was six and a half years' imprisonment. He reduced that to a term of four years and four months by reason of her plea of guilty, and by a further two months by reason of cooperation with the police: a total of four years and two months.

The concern of the single judge

4 In both cases leave to appeal was granted by Keith JA. What concerned him was the degree to which quantity determined sentences in these cases, and it is evident from the reasons which he provided in each case for giving leave, that he took the view that the sentencing judges had guided themselves solely by the quantity of drugs trafficked and, in particular, had ignored the role of the appellants, and should have, but did not, give credit for the fact that they were couriers rather than actual dealers, wholesalers or importers. His concern was that quantity plays far too dominant a role in the fixing of a starting point, to the exclusion, so he feared, of the role played by the trafficker; whereas, so runs the contrary approach, an identified quantity merely determines a fairly broad range within which sentence might fall, and that the role of the offender ought to be a significant factor in determining where within that range the sentence must fall. It is suggested that it is the latter approach which the Court of Appeal in Lau Tak Ming [1990] 2 HKLR 370 intended, and it was the learned judge's concern or assumption that role is now ignored, and that quantity is everything, that moved him to grant leave.

Lau Tak-ming; and Manalo

5 Before the judge gave leave in either case, this court had considered the same issue in HKSAR v Manalo [2001] 1 HKLRD 557. That was an appeal with leave of the same single judge.

6 There, the court referred to Lau Tak Ming and cited the following passage, which is to be found in Lau Tak Ming at 386E:

"The tariffs which we are about to set out are intended for imposition after trial.

Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.

This Court must guard against two things: first the tailoring by the dealer of the quantities he sends out into the street and procures for his sellers to sell, his couriers to carry or his storekeepers to keep so as to reduce, for them, the length of the inevitable custodial sentence which will be passed on conviction - playing the 'Bands' in other words."

7 This court in Manalo said, at p560 that:

"It is quite apparent from this passage in The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370 [at p.386E] that the Court had no intention of treating couriers or storekeepers of heroin as if they were deserving of more lenient treatment than the guidance tariffs generally suggest ....

The policy of this Court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases earlier mentioned so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this Court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffick in dangerous drugs. It is important for the courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.

Whilst those who play an aggravated role in the drugs trade, such as the manufacturers, the wholesalers and the 'bosses' who send the couriers out onto the streets to traffick can all expect longer sentences than the couriers and storekeepers, the couriers and storekeepers themselves cannot expect to receive less than the tariff sentence."

Analysis

8 In providing his reasons for granting leave in the Leung Kwai Ping appeal herein Keith JA said that:

"The Court of Appeal [in Manalo] rejected this line of reasoning because it thought that I had been advocating that there were certain classes of drug traffickers, for example couriers and storemen, who should receive 'less than a tariff sentence'.

I was not intending to say any such thing. What I was attempting to say was that the tariffs identify the range of sentences appropriate for particular quantities of drugs. Thus, the tariff for a person trafficking in 10-50 gms. of heroin is a sentence ranging from 5-8 years' imprisonment, whether (a) he is a courier or storeman transporting or looking after the heroin for a relatively modest fee, or (b) whether he is much more heavily involved in the drugs trade. The fact that an offender is a courier or storeman does not mean that his sentence should be less than a tariff sentence, i.e. less than 5 years' imprisonment, any more than the fact that the offender is much more heavily involved in the drugs trade should result in a sentence of more than a tariff sentence, i.e. more than 8 years' imprisonment. The offender's role in the drugs trade is, however, a highly relevant factor in deciding at what point within the tariff his sentence should be." See: HKSAR v Leung Kwai Ping [2001] 4 HKC 383, 384-385.

9 In so far as the single judge understood the court in Manalo as assuming him to have suggested that a courier might receive something less than the lowest point within a band, we of course accept that the judge was not intending to suggest a sentence for couriers below the suggested bands, and we understand his concern that such an assumption as to his intention should not be made. We hope that it will suffice to say that when the court in Manalo talked about sentences less than the tariff, it was referring to the level of sentence which resulted from an application of the tariff guidelines in Lau Tak Ming, a level primarily dictated by quantity. The court in Manalo was saying that the resulting starting point (or, for that matter, the sentence itself) should not be reduced by mere virtue of the fact that the trafficker was a courier.

10 We are satisfied that when Lau Tak Ming set its bands, it had in mind that the starting point within a band would primarily be dictated by quantity within that band. Keith JA, in granting leave in Leung Kwai Ping, pointed out that the court in Lau Tak Ming said that the degree of an offender's involvement was "a factor which ... should be taken into account in deciding where within the appropriate tariff a sentence should be." It is worth repeating part of the much studied passage in Lau Tak Ming:

"Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf."

It is not a coincidence that the one factor not there mentioned is the quantity itself. That is because it must have been taken as given that the appropriate sentence within a band was primarily to be determined by quantity. When Lau Tak Ming set its tariff it did not do so in a loose way which presupposed that quantity was but one of several equal factors together with role and previous history. What was envisaged was that the appropriate sentence would in the first instance be approached according to weight. Once that level was, within the bands, determined according to weight, then there would, where appropriate, be an adjustment for aggravating features on the one hand and mitigating features on the other.

11 There is no basis for assuming that the fact of being a courier should be considered a mitigating feature. It never has been a mitigating feature. In 1993, in R v Leung Kim Wah Crim App No. 442 of 1992, this court, then comprising Macdougall JA, Litton JA and Bokhary JA, as each then was, endorsed the sentencing judge's contention that being a courier was not a mitigating factor and said, in terms, that "couriers cannot expect to receive a reduction in sentence simply because they are couriers."

12 The courier is the category of trafficker who comes before the court probably more frequently than any other, and is an essential part of the whole nefarious and devastatingly harmful business that is illicit drug trafficking; and there is no basis upon which to assume that, when the court in Lau Tak Ming set its bands and its tariffs, it intended anything other than that the courier would face a sentence based upon the weight of the drugs he or she was carrying, subject of course to such mitigating, or aggravating, factors that prevailed in a particular case. Others, taking a more major role, such as the wholesaler, or the importer or, of course, the manufacturer, would expect an aggravation of sentence; if necessary beyond the limit of a particular band where weight alone would carry sentence to the top end of the band. That is how role is distinguished, and a fear that there is no room to reflect role is not, therefore, a well founded fear. So, when the single judge suggested in the second of the present cases, Liu Wai-chun, that if quantity determines the starting point, role becomes irrelevant, we respectfully disagree. It is simply that the role of courier justifies no discount. Nor is there any warrant for apprehending that in either case with which we are concerned, the sentencing judge was not aware of the role played by the appellants. Each judge made express reference to their roles.

13 We were assisted by submissions made by Mr Mackay on behalf of the appellants. He accepted that the sentences were not, in either case, impeachable.

Result

14 In the circumstances, there was no valid basis for upsetting the sentences imposed. There was no error in approach and the sentences were neither manifestly excessive nor wrong in principle. According, in both cases, the appeals were dismissed.