HKSAR v. MARK HUMPHRIES

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.645
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 11th August 1997, the Applicant pleaded guilty in the High Court before Mr. Recorder Robert Tang, S.C., to three charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and 3 of the Dangerous Drugs Ordinance, Cap.134.

2. In the first of these charges (count 8), the Particulars were that on 24th May 1996, the Applicant had trafficked in a mixture containing 16.66 grammes of cocaine hydrochloride and 12 tablets containing 1.12 grammes of MDMA (ecstasy).

3. The second and third charges (counts 14 and 15 respectively) both related to 19th September 1996. The Applicant trafficked as shown in the second charge, in 380.49 grammes of cannabis resin and 1,021.99 grammes of cannabis at Flat A, 11th floor, Tung Wui Building, Kimberley Road, Tsim Sha Tsui.

4. In the third charge, he trafficked in 800 tablets containing 56.43 grammes of MDMA at Wayfoong House, Nathan Road, Tsim Sha Tsui.

5. The remaining counts against the Applicant were left on the file

6. The short Summary of Facts provides an overall picture of the case which it is convenient to turn to next, before considering the sentences that were imposed on the Applicant and against which he now seeks leave to appeal out of time.

"In January 1996 the Narcotics Bureau commenced an undercover operation aimed at cannabis, cocaine and ecstasy use in the expatriate community. The defendant was one of twenty persons arrested in this operation.

On 22nd May 1996, an undercover Narcotics Bureau officer met with the defendant in a bar. During the course of conversation the defendant said he was willing to deliver drugs. On 24th May 1996, at 3 p.m. the officer telephoned the prisoner and ordered 20 grammes of cocaine and twelve ecstasy tablets from him. The conversation was taped. One hour later the defendant delivered the drugs to the officer (count 8).

The cocaine cost $1,000 per gramme and the ecstasy tablets $250 each. A total of $23,000 was paid for the drugs. An examination of the drugs by the Government Chemist revealed 19.51 grammes of a mixture containing 16.66 grammes of cocaine hydrochloride and that the twelve tablets contained 1.12 grammes of MDMA the active constituent in ecstasy tablets. The meeting was video taped.

On 19th of September 1996, officers from the Narcotics Bureau raided the 11th Floor premises occupied by the defendant. Some officers were stationed at ground level. Entry was gained at approximately 6:40 am. Immediately beforehand officers at ground level saw a brown bag dropped from the premises occupied by the defendant. The bag was recovered and found to contain several plastic bags containing suspected cannabis resin and cannabis. Examination of these items by the Government Chemist revealed 380.49 grammes of cannabis resin and 1,021.99 grammes of cannabis (count 14).

At 12:50 pm officers of the Narcotics Bureau in the presence of the defendant opened his safe deposit box at his bank. Inside the safe deposit box was found jewellery and a bag containing 800 suspected ecstasy tablets and $60,000 in cash (count 15).

At this time the defendant was cautioned and replied 'It's ecstasy I think' he also said 'I put them in there myself last week'. On the way to the police station the defendant admitted that the money in the safety deposit box belonged to him."

7. The learned Recorder passed concurrent sentences of 3 1/2 years, one year and 5 years' imprisonment on the three charges, counts 8, 14 and 15, respectively.

8. We have already, prior to this hearing, indicated that we were prepared to entertain this application out of time. The Applicant had originally desisted from serving a Notice of Appeal in order to enable himself to be transferred to a prison in Britain to serve his sentence under a reciprocal agreement which existed before 1st July 1997. This, however, could not happen if there was any outstanding appeal. He eventually discovered that the agreement between Hong Kong and Britain had expired. More significantly, perhaps, he learned that the sentences in ecstasy cases were likely to be under review and for both reasons decided to lodge an appeal.

9. Mr. Mullick, on behalf of this Applicant, has effectively lodged a separate ground of appeal in respect of each sentence imposed, maintaining that the overall term of imprisonment was manifestly excessive or that it was wrong in principle.

10. So far as the first charge (count 8) is concerned, he submits that a starting point of six years' imprisonment taken by the Recorder was too high, and that no sufficient discount was given to reflect the element of entrapment in this case. Clearly this ground has to be approached in two parts.

11. First, so far as the starting point is concerned, this court in Attorney General v. Pedro Nel Rojas, (1994) 1 H.K.C. 342, equated, for sentencing purposes, cocaine and heroin and confirmed the guidelines set out in R. v. Lau Tak-ming & Another, (1990) 2 H.K.L.R. 370, were applicable to trafficking in cocaine.

12. In passing sentence, the learned Recorder, at p.55G said this:

"The defendant is a young man of 27. He comes from a good family, and it is clear that his general character was such that these offences came as a surprise to his family and friends. He has a clear record, and according to what was said on his behalf in mitigation, he was a successful entrepreneur. It does not appear therefore that the defendant engaged in drug trafficking out of desperation. Rather it seems clear to me that he was in it for the money.

Mr. Mullick has very helpfully referred me to the leading authorities on sentence. According to them, the usual tariff for 10 to 50 grammes of cocaine is five to eight years. I have regard to the defendant's good character and family, and family background. Here having regard to the fact that some ecstasy tablets were also involved, I would adopt a starting point of six years. In deciding the starting point, I have taken into account the defendant's age and background, that because drug abuse is a great social evil and drug dealers, not uncommonly, use the young or the desperate to help them in this pernicious trade, previous good character and good family background, indeed the most heart-rending mitigations are of limited help."

13. Later at page 56N, the learned Recorder secondly went on to deal with the issue of entrapment where he said:

"Mr. Mullick has submitted that some allowance should be given for entrapment, namely that in the 1st charge, the defendant was first approached by an undercover policeman. There's, of course, nothing wrong with policemen pretending to be customers. In the words of Hunter J.A., in R v Liu Chun-fai, (1987) HKLR at page 1035:

'So there is a fundamental distinction between police incitement which results in the commission of the offence or perhaps a more serious offence and undercover police investigation, which may be absolutely essential in certain types of crime if the police are to do their work properly.'

There's no question here of incitement.

However, Mr. Mullick has referred me to the (transcript in the) case of O'Brien. O'Brien was one of the 20 persons arrested in this operation. O'Brien had pleaded guilty to eight counts of trafficking and the quantities involved were, I think, approximately 80 grammes of cocaine and 290 ecstasy tablets. Thus, there was more cocaine but less ecstasy. There, the court adopted a global starting point of nine years, but discounted it to four years. The court took into account: (1) his plea of guilty, (2) his co-operation, and (3) entrapment.

Here, (2) does not apply. So far as entrapment is concerned, it is only relevant to the first offence. But having regard to O'Brien, I believe it is right that I should give the defendant some allowance for entrapment in respect of the first offence. I should also take into account that the sale was to a 35-year-old man, and not to a teenager or younger man. I, of course, take into consideration his plea and his clear record, and more importantly, I must have regard to the total length of sentence in O'Brien."

14. On this charge, the Recorder concluded by saying:

"In respect of the 1st charge, the defendant is sentenced to three and a half years' imprisonment, that is allowing one-third for his plea and six months for entrapment."

15. While it seems plain that some regard was had to the fact that 12 ecstasy tablets were supplied at the same time as the cocaine, we are unable to agree with Mr. Mullick that a six-year starting point on this count was too high. Furthermore, the learned Recorder had listened to a long and detailed mitigation lasting about 1 1/2 hours which dealt in very large measure with the element of entrapment.

16. We do not find ourselves today in any different position to the court below and can say with confidence that the further reduction in sentence to take an element of entrapment into account, whether rightly or wrongly, was fully recognized by the learned Recorder. The police had employed a means of investigation that was legitimate and it may be that, in the circumstances, the six months discount for entrapment was generous. By no means at all can this sentence be described as excessive.

17. Turning now to the second charge (count 14), Mr. Mullick's point is a very simple one. The learned Recorder took a starting point of 12 months' imprisonment, which Mr. Mullick does not criticize, but then the Recorder failed in passing sentence to give any discount at all in the light of the plea of guilty to this offence. It is quite plain that this was an oversight, perhaps due to the fact that the sentence imposed was, as the Recorder put it, a "global" one, in which the tariff for this offence was of little significance. The sentence was made wholly concurrent and had no practical impact at all. The learned Recorder said in relation to this charge and the third charge (count 15):

"The defendant has pleaded guilty. He has no previous conviction in Hong Kong. He is certainly entitled to a substantial discount for his plea. In R v Lai Kin-keung, the Court of Appeal has said that a plea normally attracts a discount of approximately one-third. The offences were committed on separate occasions. I believe consecutive sentences may be justified. However, I must also consider what is the correct global sentence."

18. On this ground, we are satisfied that leave must be given, and that the appropriate reduction of one-third must be made to the sentence for this offence. It is accepted, in common with the third offence, that this involved no element of entrapment.

19. Turning now to the third offence (count 15). This was concerned with 56.43 grammes of ecstasy which the prosecution accepted at trial was being kept for a friend by the Applicant. The learned Recorder did not, at the time when he passed sentence, have the benefit of the judgment in Lee Tak-kwan, Cr.App. No.177/97, which was only delivered on 26th May 1998. In this case, the court gave guidelines for the sentencing of cases concerned with ecstasy. It is therefore no criticism to say that when a 7 1/2 years starting point was taken for this offence, it was too high. There was little prior authority on the subject in Hong Kong, and such authority as there was largely came from the English Court of Appeal which had chosen to equate the sentences imposed for heroin with those of ecstasy. In the Lee case, this court has indicated that for ecstasy, with a narcotic content of between 25 to 400 grammes, sentences of between two to four years are appropriate. It is clear, therefore, that the sentence after plea of five years on this charge must be reduced. We think that the appropriate starting point for the amount involved in this offence was two years and three months' imprisonment.

20. Having made these observations, the question that we have had to ask ourselves and to which we have given anxious consideration is whether, having regard to all the facts of this case, which reveal that the Applicant was trading or otherwise dealing in substantial quantities of drugs, the sentence of five years' imprisonment was itself manifestly excessive or wrong in principle. The learned Recorder had rightly indicated that the sentences for the last two offences might well have been consecutive, but he also very properly gave regard to the principle of totality when he made all of the sentences concurrent. We have come to the conclusion that the sentence of five years' imprisonment cannot be criticized.

21. Accordingly, while we must give leave to appeal for the reasons already given, the Applicant will derive no actual benefit from the result. Treating this hearing as the appeal, we shall quash the sentences originally imposed on the second and third charges (counts 14 and 15). On the second charge (count 14), we reduce the sentence to eight months' imprisonment, and on the third charge (count 15), we reduce the sentence to 18 months' imprisonment. Those two sentences will remain as concurrent to each other having regard to the principle of totality. To this extent, the appeal is allowed. However, these serious offences were quite separate and distinct from the offence in the first charge (count 8) and we can see no reason, in the light of the present circumstances, why they should not be made to run consecutively to the sentence of 31/2 years' imprisonment. Accordingly, under the terms of section 83I of the Criminal Procedure Ordinance, Cap. 221, we shall vary the order of the court below by making the sentence on the first charge consecutive to the others, which has the effect of maintaining the original sentence of five years' imprisonment.