HKSAR v. WONG CHUN YAU

HCCC 128/2017

HCCC 346/2018

(Heard together)

[2019] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 128 OF 2017 & 346 OF 2018

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

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

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

Transcript of the Audio Recording

of the Sentence in the above Case

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

COURT:

Introduction

These two cases in fact arose from the same incident. There are two different case numbers, as the two defendants were arrested at different times and separately charged.

The defendant in HCCC 128/2017, Mr Wong Chun-yau (hereinafter referred to as “Wong”), was convicted after trial by the unanimous verdict of the jury of one count of trafficking in a dangerous drug, namely, 13.19 grammes of a crystalline solid containing 12.93 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’).

The defendant in HCCC 346/2018, Mr Mok Shu-ming (hereinafter referred to as “Mok”), pleaded guilty at the Magistrates Court to one charge of trafficking and was committed to this court for sentence. The subject matter of Mok’s charge was the same ‘Ice’ as in Wong’s case. Moreover, Wong was also named in Mok’s charge as the co-defendant.

In view of the common factual background of these cases, it is proper and convenient for me to deal with their sentence together.

Facts

As regards Wong’s case, in a nutshell, at about 2:30 in the morning of 18 September 2016, the defendant, Mr Wong, was seen sitting on the driver seat of a private car which was parking illegally at the bus stop area of Tai Wo Estate on Po Nga Road. Wong’s presence at that place and at that time of the day attracted the attention of a police sergeant, PW1, who was patrolling in the vicinity. After some initial questioning of the defendant, PW1 suspected that Wong was in possession of dangerous drugs. Therefore, PW1 summonsed his colleagues to come to assist him. As a result, other police officers, including PW2, arrived.

PW2 searched the private car in the presence of Wong and he found a cigarette box slotted in the door handle of the car next to the driver seat. Inside the cigarette box, there were six transparent resealable plastic bags containing suspected dangerous drugs and also another transparent resealable plastic bag containing six other resealable plastic bags containing suspected dangerous drugs. Wong did not make any admission in respect of the drugs. All the suspected dangerous drugs were subsequently sent for examination and were confirmed to be ‘Ice’ which was the subject matter of the charge. The estimated value of the ‘Ice’, if sold at street level would be about HK$4,788. Wong did not make any admission in respect of the drugs.

Wong gave evidence at the trial that the ‘Ice’ belonged to his friend, Mok, and he (Wong) had nothing to do with the ‘Ice’ and knew nothing about it. Wong said that that night he drove Mok to the spot at the latter’s request. Wong said that after Mok had alighted from his car, he noticed a cigarette packet was left lying on the floor of the rear passenger seat. He said that he thought that it belonged to Mok, so he naturally picked it up and slotted it in the door handle of the car next to the driver seat without opening it or taking a look of its contents. In short, Wong said he had nothing to do with the ‘Ice’ and knew nothing about it.

It is plain that the jury, by their verdict, rejected Wong’s evidence. It is also plain that the jury accepted the prosecution’s case that at the material time the defendant was in knowing possession of the ‘Ice’ for the purpose of unlawful trafficking.

As regards Mok, based on the facts which he has admitted, he visited Wong on 24 September 2016 while Wong was remanded in custody for the present case. Then a few days later on 27 September 2016, Mok was arrested and remanded in custody for an unrelated case. On 2 November 2017, Wong, who had been granted bail, went to visit Mok and the two of them have a discussion about the ‘Ice’ found in Wong’s private car. Subsequently, Mok was arrested for the ‘Ice’ in question. He said under caution in a video-recorded interview, among other things, that the ‘Ice’ belonged to him; that he had asked Wong to give him a ride on the material day and he dropped the ‘Ice’ in Wong’s car; that he had alighted from Wong’s car; that after he had alighted from Wong’s car, he then discovered that he had dropped the ‘Ice’; that he turned around and seeing that Wong was being investigated by the police, he thus left. When Mok was asked by the interviewing officer as to why he only admitted possession of the ‘Ice’ after such a long time, he said, among other things, that it was because Wong had asked him to do so.

According to the Summary of Facts which Mok has admitted, he now accepts and admits that at the material time, he was together with Wong, jointly and knowingly in possession of the dangerous drugs seized for the purpose of unlawful trafficking.

Antecedents

Wong

Wong is aged 35. He received education up to Form 3. He took up his father’s logistics business after his father’s retirement and worked as a cross-border driver. He lived with his girlfriend in a flat in Fanling. He had two previous convictions, both of possession of a dangerous drug, one in May 2001 and the other in August 2001, and on both occasions he was sentenced to probation. In view of the age and the relatively minor nature of the two convictions, I am not going to take them into account for sentencing purpose.

Mok

Mok is aged 28. He received education up to Form 2 and was unemployed prior to his arrest. He is married with a son who is now about 3 years old. Family background aside, Mok is a drug addict. He had five court appearances before and four previous convictions, namely, one for robbery, 2003, one for tampering with motor vehicle, 2007, and two for trafficking in 2011 and 2017. I note that for his first trafficking conviction, he was sentenced to 3 years’ imprisonment. The offence relating to his last trafficking conviction, HCCC 238/2017, actually occurred on 27 September 2016, which was after the present offence. He is currently serving a prison term of 7 years and 6 months for his last conviction.

Sentence

Starting point

It is well-established that the sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and is to be calculated mathematically: HKSAR v Kilima Abubakar Abbas [2018] HKCA 602. In the present case, I can see no reasons for departing from the mathematical starting point and counsel, Ms Yip for Wong and, Mr Wong for Mok, do not suggest the otherwise.

Based on the sentencing tariff laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking between 10 and 70 grammes gives rise to a sentence of 7 to 11 years’ imprisonment; and that for trafficking between 70 grammes to 300 grammes is 11 to 15 years. Thus, by a mathematical approach and rounding off the figure, trafficking in 12.93 grammes of ‘Ice’ narcotics attracts a starting point of 7 years and 2 months imprisonment.

In the present case, I can see no difference between the respective criminality of Wong and Mok. I can also see no good reasons to depart from the mathematical starting point either. For both of the defendants, I adopt 7 years and 2 months’ imprisonment as the starting point of their respective charges.

Wong

Based on the evidence before me, which is in the form of a statement from the Inspector Lam Chun-kai, the police has no information suggesting the involvement of Mok in connection with the ‘Ice’ seized from Wong’s car until they received, through counsel on fiat, a letter from Wong’s solicitor dated 17 November 2017 alleging that Mok had admitted that the ‘Ice’ belonged to him, Mr Mok, and that Wong had no knowledge of it.

It is because of that letter that the police arrested Mok which led to Mok admitting the offence in the aforesaid video-recorded interview. From what the Inspector said, it is clear that but for the information provided by Wong, Mok would not have been arrested for the present case.

The question now before the court is whether Wong should be entitled to any discount because of the information he provided to the police concerning Mok’s involvement. In my humble view, it is appropriate to start by examining the relevant underlying sentencing policy in order to see whether Wong’s case falls within that policy for awarding discount. That policy was described by Li CJ, who gave the judgment of the Court of Final Appeal in Z v HKSAR [2007] 10 HKCFAR 183:

“The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.

The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one.”

Li CJ also provided guidance as to how to assess the assistance provided. The most important factors in determining whether the assistance merited a discount usually include:

(a) The nature and extent of the assistance; and

(b) the likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody, and danger to himself and his family after his release from prison.

In particular, in relation to (a) above, Li CJ said:

“In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.”

At paragraph 23 of that judgment, Li CJ also observed that various hallmark percentage ranges have been used in respect of accused persons who had provided assistance to the authorities at various degrees.

In the recent case of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, McWalters JA, who gave the judgment of the Court of Appeal, having considered the relevant case authorities including Z v HKSAR, elaborated and said that:

“(1) The discount range of 33.3 per cent to 40 per cent allows a court to award a discount to a defendant who has pleaded guilty and who has made a genuine attempt to assist the authorities, his assistance has been helpful but, for one reason or another, it is not assessed to be of particularly great value.”; and

“(2) The discount range of 40 to 50 per cent includes acts of assistance that do not involve testifying for the prosecution.”

It has to be borne in mind that the above discount ranges apply only to an accused who has made a guilty plea and that the guilty plea alone, if made at the first opportunity would already attract a discount of 33.3 per cent. HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. Therefore, given that Wong has not pleaded guilty but is convicted after trial and that he has not provided any statement to the police against Mok and has not given evidence against Mok. In my view, if Wong is entitled to any discount at all for the limited information he had provided, the discount would not, in any event, be higher than 6 per cent.

Furthermore, it has to be borne in mind that both the Court of Final Appeal in Z v HKSAR and the Court of Appeal in HKSAR v Lo Sze Tung Stephanie stress that, in order for an accused to gain any discount for assisting the authorities, the attempt to assist has to be “genuine”.

In the present case, although I readily accept that Mr Mok would not have been brought to justice but for the information from Wong, I am satisfied (based on the materials available at the trial and now placed before me) that Wong’s information was far from “full and frank”, as he had never admitted that he had any role in the offence. In the letter from his solicitors dated 17 November 2017, where the name of Mok first appeared on record, it was said:

“Our client did not know Mok had drugs with him during the ride nor did he know there were drugs in his car.” “As such, during our client’s application for bail in the Court of First Instance, we informed the court that our client would provide assistance to the police as to the real culprit.”

“If the police finds Mok should be the one accountable for the subject drugs, our client should not face trial.”

That letter was written when Wong’s trial was approaching so that the trial originally faced before Deputy Judge Lugar-Mawson had to be adjourned and refixed for the police to conduct further investigation.

As it turned out, at the trial Wong indeed made use of the fact that he had provided information to the police about Mok at the refixed trial before me. Wong sought to put all the blame on Mok to increase his own chance of acquittal. However, the jury, by their verdict disbelieved Wong. By their verdict, the jury must have found that Wong was in knowing possession of the ‘Ice’ for the purpose of trafficking. I cannot go behind the jury verdict.

Mr Kelly for the prosecution, at the court’s request, has given the matter due consideration whether to seek a Newton hearing to determine whether Wong’s provision of information about Mok was just a plot Wong devised to get himself off the hook. In the event, Mr Kelly does not seek a Newton hearing. I am not inclined to hold one either. Nevertheless, based on the materials before me, I am entitled to take the view that Wong’s disclosure to the police has not been “full and frank” and his assistance was very limited. Ms Yip also does not gainsay that. In all the circumstances, having considered the aforesaid case authorities, and in exercise of my discretion, I would allow only a 3-month reduction for the information provided by Wong. It may be that even any reduction would be too benevolent and the amount reduced over-generous. But I would err on the side of caution.

My attention has also been drawn to the mitigation letter written by Wong’s mother, the contents of which I have duly noted. However, nothing said in that letter can afford Mr Wong a further reduction in sentence. Furthermore, I can see no mitigating factors applicable to Wong which may further reduce his sentence. He is sentenced to 6 years and 11 months’ imprisonment.

Mok

Mok contends that a small part of the ‘Ice’ found by the police was intended for his own consumption, but the quantity of which would depend on whether any drugs would be left after the delivery was made. Mr Wong, counsel for Mok, has rightly accepted that the quantity said to be intended for self-consumption, whatever it may be, is unlikely to make up a sufficiently “significant portion” to make a difference for sentencing purpose. See HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69; and also HKSAR v Kong Tat Lung [2017] 6 HKC 448.

Adopting 7 years and 2 months’ imprisonment as the starting point, giving Mok a one-third discount for his plea and round off the figure to the nearest month, his sentence for the present case is one of 4 years and 9 months’ imprisonment.

Then, there is the question of totality. Mr Wong draws my attention to the offence of trafficking for which Mok is currently serving the prison sentence of 7½ years, was committed on 27 September 2016, which was only 9 days after the present offence. If one were to add the two quantities of ‘Ice’ narcotic together (12.93 plus 93.1 equals 106.03 grammes) in order to determine the overall sentence for the two cases, then based on Tam Yi Chun’s guideline, one would arrive at a notional starting point of approximately 11 years 7 months before plea which would be about 92 months after plea.

However, Mr Wong fairly accepts that, given that the two offences, even though in close temporal proximity, were separate incidents of trafficking. As such, Mok is not entitled to ask for the two different quantities of ‘Ice’ to be looked at together and for him to be sentenced as if the cases were part of the same transaction. Mr Wong asks, instead, that this court consider ordering a substantial part of the imprisonment term to be imposed for the present case to run concurrently with Mok’s current sentence. Reference is made to HKSAR v Ng Yau Kau and Another, CACC 374/2007, and HKSAR v Wong Yut Wah, CACC 234/1997.

In considering the question of totality, I am guided by the judgment of the Court of Appeal in HKSAR v Leung Ting Fung and Another, CACC 109/2014, where it is said, at paragraph 36 of that judgment:

“The judge dealing with an offender who is serving a sentence of imprisonment for offences occurring around the time of other offences for which the judge must now sentence the offender must step back and take a global view of the total sentence in light of the whole of the criminal conduct. In HKSAR v Lee Ming Yin, CACC 332/2010; unreported, 26 January 2011, this Court said:

‘The principle is long settled that a sentencing judge, when dealing with an offender who has been sentenced to imprisonment by another court for another offence, must have regard to the totality of all the terms of imprisonment to which the offender would become subject: See, for example, R v Ng Chun Keung [1993] 2 HKC 171 at 173.

In R v Tong Hoi Fung [1998] 1 HKLR 601, this court said that, in determining an appropriate sentence in light of the totality principle, the matter should be approached as if the two cases were being heard together.’”

In HKSAR v Pau King Kong, [2013] 3 HKLRD 676, the Court of Appeal says that the sentencing judge, when considering totality, should stand back far enough so that it would be “better able to assess what is needed in order to arrive at a sentence which is proportionate to the defendant’s culpability whilst at the same time being fair to him while at the same time being fair to him”.

In my judgment, if the present case and the case of HCCC 238/2017 (“the latter case”) were being heard together, then the sentencing judge would be entitled not only to take into account that the two cases (which were similar in nature) were committed just 9 days apart, but also the fact that the latter case was committed when Mok had already known that Wong was being remanded for the present case.

As such, the commission of the latter case, which was only 3 days after Mok’s visit to Wong, shows a significant degree of audacity and a persistent disregard of the law on the part of Mok. The fact that Mok might need to be engaged in the drug trade in order to finance his drug addiction and to feed his young family can be no mitigation. R v Lawrence (1988) 10 Cr App R(s) 463, and Attorney General v Shek Shui Tai [1989] 1 HKLR 178.

Having stood far back and looked at the two cases in the round, in my judgment, it would be appropriate to add another 15 months to Mok’s current sentence.

As such, I order that out of Mok’s 4 years and 9 months’ sentence for the present case, 15 months of which is to run consecutively to that of HCCC 238/2017 and the remainder is to run concurrently.

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings ............................................................ Matthew James Davine Date: 11 April 2019