SECRETARY FOR JUSTICE v. CHAN KA WAH

CAar 5/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

application for review NO. 5 OF 2007

(ON APPEAL FROM dccc nO. 110 OF 2007)

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Reasons for judgment

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

Introduction

1.  On 18 March 2008, we reviewed the sentence imposed on Chan Ka-wah (the respondent) and increased it from 3 years’ imprisonment to 5 ½ years’ imprisonment. We indicated that we would hand down our reasons in writing and this we now do.

Background Facts

2.  On 6 December 2006 shortly before 9 p.m., Ms Chan Pui-wei walked out of Yau Luen Apartments at Tai Po Road and was intercepted by police officers. Ms Chan had, in her left hand, a transparent bag containing a small quantity of heroin.

3.  With keys seized from Ms Chan, officers entered her residence at Flat F, 1^st Floor (“the flat”) of Yau Luen Apartments where she resided with the respondent. The respondent’s father was then watching TV in the sitting room of the flat.

4.  When the officers were declaring their identities to the respondent’s father, the respondent closed and locked his bedroom door. The officers, after kicking open the door, saw the respondent rushing towards the window with packets in both hands. The packets turned out to be 45.46 grams of a mixture containing 18.11 grams of heroin.

5.  The respondent was subdued and arrested. He claimed to have been asked by “his wife” (Ms Chan) to throw the “stuffs” out of the window if he saw any stranger coming in.

6.  When interviewed under caution, the respondent further said that before leaving home on 6 December 2006, Ms Chan placed the packets of heroin on the desk inside their bedroom before telling him that he should throw them out of the window if any strangers entered the house. Therefore when the officers arrived, the respondent closed his bedroom door and tried to dispose of  the packets in accordance with Ms Chan’s instruction.

7.  The aforesaid incident led to an indictment consisting of two charges of trafficking in a dangerous drug. The 1^st charge, against Ms Chan, related to the heroin seized from her left hand, and the 2^nd charge, against both Ms Chan and the respondent, related to the packets of heroin that the respondent attempted to throw out of the window.

8.  Ms Chan pleaded guilty to both charges before Judge Whaley in the District Court (“the judge”). The judge adopted a starting point of 5 years and 9 months for each of the charges and reduced it to 46 months to reflect Ms Chan’s guilty pleas. The judge ordered the sentences to run concurrently.

9.  The respondent pleaded not guilty to the 2^nd charge, but was convicted and sentenced to 3 years’ imprisonment. At the time of sentence, the respondent was serving a 6-month sentence, suspended for two years for a shoplifting offence. The judge activated the suspended sentence, but ordered it to be served concurrently with the 3 years’ imprisonment.

The Judge’s Approach

10.  The judge, in convicting the respondent, observed that on the respondent’s own version, he was guarding the drugs, tasked with throwing them out of the window should any strangers entered the flat.

11.  The judge, in sentencing the respondent, further commented:

“It is very likely in my view that the (respondent) was actively trafficking in these drugs together with (Ms Chan), perhaps using (Ms Chan) as the person to make the deliveries in the hope that as a woman she might be less likely to be stopped and searched by police officers.

However on the evidence before me, I cannot be satisfied of those matters beyond a reasonable doubt, and I am sentencing (the respondent) on the basis that he played a subsidiary role in this trafficking operation. As I have recounted already, at the time in question (the respondent) was trying to throw the drugs out of the window so that he and (Ms Chan) would not be caught by the police officers who had entered the premises. Even looking at that act in itself, he was actively assisting (Ms Chan) to traffic in these dangerous drugs. However, as I have stated, I am sentencing him on the basis that on the evidence before me, he played a subsidiary role in this trafficking operation, and in his case, I have adopted a starting point of 3 years’ imprisonment after trial…

This offence was a breach of the suspended sentence which was imposed upon him on 3 January last year, namely 6 months suspended for 2 years in respect of a shoplifting conviction. I can see no reason why that sentence should not be activated and I do order it to be activated. In the interests of totality, however, bearing in mind the sentence that I have imposed upon him on the 2^nd charge, I order that the activated sentence of 6 months imprisonment is to be served concurrently with the sentence that I have imposed upon him on the 2^nd charge, so the total sentence that he has to serve is 3 years’ imprisonment”

The Application

12.  The Secretary for Justice (the applicant), on the basis that the sentence imposed on the respondent was manifestly inadequate and/or wrong in principle, applied, under s 81A of the Criminal Procedure Ordinance Cap 221, to this court to review the sentence.

13.  Mr Robert Lee, Senior Assistant Director of Public Prosecution on behalf of the applicant, submitted that the judge was wrong not to have sentenced the respondent on the weight of the narcotic content in accordance with the guidelines laid down in R v Lau Tak Ming and Ors [1990] 2 HKLR 370.

14.  Mr Lee suggested that the role played by the respondent, as found by the judge, could not be described as subsidiary and the respondent did not deserve the sentence, which was a significant departure from the guidelines, when he tried to conceal or dispose of the drugs during the police raid.

15.  Mr Lee also pointed out the respondent’s poor criminal record of 9 previous convictions with two of them drugs related, and the fact that he committed the present offence during the operation of a suspended sentence.

16.  Mr Lee emphasized that by ordering the activated 6-month sentence to be served concurrently, the respondent had in fact not been penalized in respect of the shoplifting offence for which he was given a suspended sentence when there were no exceptional circumstances to justify it.

The Respondent’s Position

17.  Mr Wong Po Wing, on behalf of the respondent, argued that sentencing guidelines are not intended to be strait-jackets and should be applied with flexibility. Mr Wong referred to the judgment in Lau Tak Ming (supra) when the court of appeal stated at p 386E:

“within the suggested bands factors which the sentencing judge may properly take into account are:…the degree of involvement of the offender; his pervious history of narcotic offences and matters of mitigation which may be advanced on his behalf.”

18.  Mr Wong emphasized the judge’s finding that the respondent’s role was subsidiary when he was only acting on Ms Chan’s instruction to try to dispose of the drugs.  Mr Wong also submitted that the judge was justified in ordering the activated 6-month sentence to be served concurrently on totality principle.

19.  Mr Wong suggested that the sentence imposed on the respondent, though lenient, was neither manifestly inadequate nor wrong in principle.

Discussion

20.  Sentencing is never an easy task, but relatively more straightforward in drug trafficking cases, as opposed to other types of cases, when there are clear guidelines laid down by the Court of Appeal. It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence, and hopefully such an approach will be a deterrent.

21.  To achieve consistency, the quantity of the narcotic content is the dominant factor on sentence as clearly demonstrated in Lau Tak Ming (supra) when Silke VP said at p 387C: “In the light of all this the one constant is the quantity of narcotic. It is contained in all the mixtures whatever their size. And that is the basis for the tariff we now set out.”

22.  Whilst a sentencing judge may retain some degree of discretion and other factors may be taken into account to determine an appropriate sentence, the sentence imposed should normally be “within the suggested bands”

23.  Whatever role a drug trafficker may play, the guidelines laid down in Lau Tak Ming should be followed unless there are exceptional circumstances. We wish to echo what Stuart-Moore Ag CJHC said in HKSAR v Manalo [2001] 1 HKLRD 557 at p 560 D:

“It is quite apparent from this passage in The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370 that the Court had no intention of treating couriers or storekeepers of heroin as if they were deserving of more lenient treatment than the guideline tariffs generally suggest. The same would obviously apply to couriers and storekeepers of ice. Not even youth, old age or disability will carry much weight and more often than not it carries none.

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.”

24.  We had considered carefully the background of the case and that of the respondent. We were persuaded that there were no exceptional circumstances to justify, in the case of the respondent, a departure from the guidelines laid down in Lau Tak Ming.

25.  The respondent was well aware that he was assisting his girlfriend’s drug trafficking. Whether his role was that of a storekeeper or disposer of the drugs matters little in principle and whatever his role was, in our judgment, the guidelines should have been applied.

26.  A suspended sentence, as the term suggests, is to enable a defendant to avoid having to go to jail if he commits no further offence during the period of suspension.

27.  If a defendant commits a fresh offence during the period of suspension, he will be sentenced for the fresh offence, and the suspended sentence, in the absence of any exceptional circumstance, will be activated and be served consecutively to the sentence for the fresh offence, otherwise the suspended sentence will lose its meaning and effect. The length of the sentence for the fresh offence is not an exceptional circumstance.

28.  In R v Ithell (1969) 53 Cr App R 210, Edmund Davies LJ said at p 212:

“The proper approach, where a fresh offence has been committed during the period of suspension of an earlier sentence and the wrongdoer is brought before the court, is that the court should first sentence him in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence…unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the current offence.”

29.  We could not find any exceptional circumstance, and none had been suggested, to justify a departure from the “proper approach”.

30.  We were persuaded that the judge was wrong to have departed from the guidelines by imposing a 3-year sentence on the 2^nd charge of trafficking in a dangerous drug when the narcotic content was 18.11 grams of heroin.

31.  The judge should also have ordered the activated 6-month sentence to be served consecutively to the sentence on the 2^nd charge.

32.  Bearing in mind this was an application for review of sentence, we were of the view that the proper sentence to impose on the 2^nd charge of trafficking in 18.11 grams of heroin is 5 years’ imprisonment.

Conclusion

33.  We therefore granted the application for review of sentence. We set aside the judge’s orders and in substitution thereof, we imposed a sentence of 5 years’ imprisonment on the 2^nd charge. We also ordered that the activated 6-month sentence imposed on the earlier shoplifting conviction be served consecutively to the 5 years’ imprisonment.

34.  The total sentence on the respondent was therefore increased from 3 years’ imprisonment to 5 ½ years’ imprisonment.