HKSAR v. WONG CHUN KIT

CACC 33/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2015

(ON APPEAL FROM HCCC 501/2013)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the reasons for judgment of the court):

1. On 18 August 2014, before Zervos J in the Court of First Instance, the applicant pleaded guilty to trafficking in 963.81 grammes of methamphetamine hydrochloride. On 21 January 2015, he was sentenced to 11½ years’ imprisonment. On 28 January 2015, he filed his Form XI – a Notice to Apply for Leave to Appeal against Sentence. On 14 July 2015, the hearing of this application was adjourned on the applicant’s own application. At the resumed hearing on 20 January 2016, we dismissed that application. These are our reasons.

THE FACTS

2. Shortly before 1 pm on 27 May 2013, at Lok Ma Chau Control Point, the applicant, who had just returned from the Mainland and was coming through the “Nothing to Declare Channel”, was asked by Customs officers to have his bag examined.  This led to the discovery of the drug in question, the bulk of which was wrapped in two plastic bags.  Under caution, the applicant admitted that he thought the substance was cannabis, and that he was to deliver the drug to a man at Sheung Shui for a reward of $4,500.  That was his first response.  Later, when asked if he was willing to take part in a controlled delivery, the applicant agreed and divulged that he was in fact expected to convey the drug to Fanling train station.

3. In the event, and not before a number of unsolicited calls were made to the applicant’s mobile phone to enquire of his whereabouts, a man did appear at the appointed meeting place in Fanling and was arrested.  However, as was stated in the agreed summary of facts, the Customs officers “reacted too quickly” and “stopped and arrested the other man before he had been given the dangerous drugs”, and “although the other man was … initially charged the prosecution ha[d] not proceeded with the case against this other man.”  The summary of facts went on to emphasize that the failure of the controlled delivery was “not because of any fault or failing by the defendant.”  In a video interview recorded on the following day (28 May 2013), the applicant insisted that he thought he was bringing cannabis into Hong Kong – that was what his Mainlander boss had told him.  He said he had previously carried milk powder for this boss.

BACKGROUND AND MITIGATION

4. The following passages appear in the judge’s oral reasons for sentence:

“In interviews with Customs officers the defendant gave a frank account of his background and the circumstances that led him into committing this crime. His standard of education was only to Form 3 level. At the time of the offence he was unemployed and receiving Social Welfare assistance, which he had been receiving since 2003 because of a physical disability as a result of a traffic accident. He has had a history of problems with his limbs for which he has received surgical treatment over the years. He also explained that he has developed, because of his affliction, a serious mental illness for which he needs to take medication.

The defendant explained that he carried goods for other people as he was without working skills, and on this occasion he thought he was carrying cannabis, and had no idea that it was something more serious. He recounted that on the day in question his boss, who he also referred to as ‘Ah Nai’, gave him a packet which he put in his bag. He told him to take it to Hong Kong and to give it to someone at a station.

He said that he had known the boss for four to six years, and that originally he would carry milk powder for him. He had two telephone numbers for the boss, a mainland China number and a Hong Kong number.

The boss telephoned the defendant on the evening of 26 May 2013 and asked him to come and collect something for delivery. He met the boss, who had also organised other couriers to deliver goods to Hong Kong. He told him he was carrying several ounces of cannabis buds.

It was at the border control point that he felt the package and realised it was hard. He contacted the boss to ask him what it was, and he informed him that he would be paid an additional $2,000 on top of the $2,000 that he had been originally promised.

He confirmed that he had met the man to whom he was to deliver the goods in the presence of the boss on two or three prior occasions.

The defendant is 49 years old. He has prior convictions for minor offences for which he received a fine or probation.

At the time of the offence the defendant was living with his second wife or cohabitee and two daughters, the youngest of whom is 12 years old and still at school. He also has a son who is in his mid-20s and lives away from home.

The defendant was involved in a traffic accident in 2003 and sustained a serious cervical injury which required surgery. He received long-term outpatient care as a result of the physical and psychological impairment he suffered. In particular, he has been receiving treatment for his mental health problems because of persistent depressed mood, insomnia and post-traumatic stress symptoms.

His disability has limited his work capacity and he has not been able to maintain gainful employment.

………

He has been diagnosed to be suffering from Dysthimia with episodic decompensation into major depressive episode. He requires long-term outpatient psychiatric care and psychotropic medication.

The defendant blames his current circumstances on his inability to secure employment because of his ill health as a result of the traffic accident in 2003.  It has been urged upon me that the defendant took up delivery work transporting goods between mainland China and Hong Kong because nothing else was available, and that he was taken advantage of because of his circumstances, and that is the reason why, on occasion, he would deliver illicit goods for his boss.”

THE SENTENCE

5. The judge went on to say:

“The answer to his circumstances would have been simply to have said no when asked to do something illegal. I do accept that he was experiencing hardship and was therefore in a vulnerable position, but it would appear that he participated in this crime with his eyes wide open, knowing that he was transporting illicit drugs.

Sentencing is not a ritualistic prescription of sentencing principles and guidelines by simply applying a mathematical formula to calculate the punishment. If it was, there would be no need for judges or magistrates in the sentencing process. It is said that draconian measures are required to counter the threat posed by drug traffickers and those they employ.

It is also said that in serious crimes like drug trafficking, the personal circumstances of the offender normally have little if any bearing on the sentence to be imposed. These are important general principles the court must always bear in mind, but it does not mean that the personal circumstances of the offender should never be taken into consideration. There may be exceptional cases where it can and should be taken into account.

It is easy to sound in rhetoric that a person, no matter their circumstances, should not commit crime, but in reality there are tragic figures who come before the courts having committed a crime because of their circumstances. As bad as some crimes may be, the courts are to dispense justice, and that involves imposing a just and appropriate punishment for the crime committed by taking everything into account, and anything short of that would in itself be an injustice.

I have carefully considered the defendant’s circumstances, and whilst he was experiencing difficulties securing employment and trauma with his personal problems, this has to be weighed against the seriousness of the crime that he has committed. In my view, the defendant’s personal circumstances made him an easy target for others to take advantage of, but that diminishes correspondingly with the seriousness of the crime that he has got involved in. I will bear it in mind by treating him as leniently as I can within the relevant sentencing tariffs and principles.

According to the sentencing tariff laid down in AG v Ching Kwong Hung and Capitania, for a quantity of ‘Ice’ of over 600 grammes, a sentence should range from 18 years upwards. The question of an appropriate sentence for very large quantities of “Ice” was recently addressed by the Court of Appeal in HKSAR v Tan Yee Chung, where the Abdullah guidelines were applied to very large quantities of ‘Ice’.

The tariff now fixed for a quantity of ‘Ice’ of 600 to 1,200 grammes is 20 to 23 years’ imprisonment. This case was handed down on 9 June 2014, and the tariffs set out apply to all those persons who commit the offence of trafficking in ‘Ice’ from that date.

I note that the defendant committed this offence on 27 May 2013, and therefore the old tariffs apply, although there is not much difference between them and the new tariffs which seek to provide consistency in sentencing for very large quantities of ‘Ice’.

It was urged upon me on the defendant’s behalf that he believed the drugs to be of a less potent type than in fact they were. As to whether or not this was the case, I have to be satisfied on the balance of probabilities that it was on the evidence presented to me. The availability of this factor in the sentencing process is strictly applied and requires looking at all the circumstances in order to be satisfied that is truly the case. It will necessarily require supporting evidence, as it would be rarely established by a bare assertion from the defendant.

As a result, the sentence, according to the sentencing tariff of the actual drug involved, will be discounted on account of the defendant’s mistaken and genuine belief that the drugs were a less potent type than in fact they were.

In the present circumstances, the defendant originally believed he was carrying cannabis buds. It seems that he was put on notice that he was carrying something other than cannabis buds because he felt that the package was hard. This caused him to contact the boss about what he was carrying, and he was offered an additional $2,000 to deliver the goods.

It seems clear to me that he was aware that he was delivering drugs that were more potent than cannabis buds, namely hard drugs.

The defendant co‑operated with the authorities by participating in a controlled delivery which he saw out to the end, and for this he should receive a reduction to his sentence even though the controlled delivery was unsuccessful.

There are also special circumstances on the papers that justify a lenient view to be taken on the facts. When fixing the starting point, it will be necessary to take into account the international element involved by the transportation of the drugs from mainland China to Hong Kong, which I will do by an addition of 6 months’ imprisonment.

Given the foregoing factors, together with the nature and quantity of the drugs involved, I will impose a starting point of 21 years’ imprisonment, including the 6 months’ imprisonment for the international element, and taking into account his plea of guilty, which is deserving of a one‑third discount, his genuine co‑operation and assistance to the authorities, I will therefore reduce his sentence by 45 per cent[1].

Accordingly, the defendant is sentenced to 11 years and 6 months’ imprisonment.”

GROUNDS OF APPEAL

6. In a note attached to his Form XI dated 28 January 2015, the applicant complained that his sentence was “too heavy”.  (Hereinafter referred to as “Ground 1”)

7. In an undated letter which this Court received on 24 June 2015, the applicant further complained that, although not bearing any immediate result, a piece of information he provided to the authorities on 26 November 2014 had, in fact, come to fruition in April 2015.  This delay, the applicant complained, had deprived him of such extra credit that the judge could have given him at the time of sentence (21 January 2015), had the result materialized before that date. (Hereinafter referred to as “Ground 2”) 

8. Before us, at the resumed hearing on 20 January 2016, the applicant claimed that, based on some other pre-sentence information he provided, the Customs and Excise Department (“C&ED”) had, in June 2015, successfully raided a warehouse used for growing cannabis, as well as arresting someone in connection with it.  This, the applicant argued, should entitle him to yet another discount in sentence.  (Hereinafter referred to as “Ground 3”) 

PROCEDURAL HISTORY

9. As can be seen, the applicant’s assistance to the authorities was a factor that the judge had taken into account in determining sentence (see footnote 1 for the relevant passage in the judge’s oral reasons for sentence).  That, the judge did after three Sivan hearings dated 18 August 2014, 28 November 2014 and 21 January 2015, respectively.  Nevertheless, the applicant raised Ground 1 at the time of filing his Form XI (see paragraph 6 above) and made a parallel application for legal aid to appeal his sentence.  That application was dismissed on 27 March 2015. 

10. On 12 June 2015, relying on Ground 2 (see paragraph 7 above), the applicant renewed his application and because the Legal Aid Department (“LAD”) needed more time and information to process that application, the Court’s hearing on 14 July 2015 was adjourned, part-heard, to a date to be fixed.  On 17 September 2015, the applicant’s renewed application for legal aid was refused, and the Court’s hearing was set down to resume on 20 January 2016.

11. By a letter dated 16 December 2015, LAD refused to grant the applicant legal aid for a third time.  It is not apparent from that letter the basis on which the applicant had made the application leading to this refusal[2].

12. By a letter dated 29 December 2015, the applicant asked for a further adjournment of the Court’s hearing – “so that [he] could seek advice from the barrister who will represent [him]”.  In the resumed hearing on 20 January 2016, however, the applicant admitted not having, and was unlikely to have, sufficient funds to engage any private legal representation.  Instead, he laid claim to a further discount in sentence based on Ground 3 (see paragraph 8 above).

13. Moreover, notwithstanding the respondent’s explanation to the contrary (see paragraph 19 below) the applicant insisted that the raid in June 2015 was a result attributable to his assistance.  It was alleged that, for some reason, C&ED was deliberately withholding the truth in relation to this and many other pieces of information that he had provided since being taken into custody.  He said he wanted more time to seek help to expose and redress this injustice.   

14. In the end, the applicant came to terms with the immense, possibly insurmountable, hurdle that he had to overcome to substantiate his allegation and withdrew his application for a second adjournment.  He asked of this Court the following question, “What could be done to accord him credit if, further down his sentence, the information he provided began to produce results?”

DISCUSSION

15. We will begin by dealing with the applicant’s more specific claims.

Ground 2

16. As early as when Ms Ng, counsel for the respondent, filed her written submissions for the first hearing on 14 July 2015, she had made it plain that her instructions were:

(a)  The Intelligence Bureau of C&ED did interview the applicant on 25 November 2015; they did not interview the applicant on 26 November 2015 as claimed.

(b)  The information then provided by the applicant was already known to C&ED.

(c)  No arrest had been made as a result of that information whether before, during or after April 2015.

17. That being the case, and absent any evidence of the intelligence officers of C&ED being untruthful, Ground 2 is not made out. 

Ground 3

18. As we discovered at the resumed hearing, the substance constituting Ground 3 was first made known to LAD sometime after the adjournment on 14 July 2015, the applicant having provided them with very general information about a particular individual and his alleged drug trafficking activities.  LAD was given to understand that this and a person arrested in June 2015 by C&ED was the same individual.  LAD was told that the applicant had previously provided information on this person to C&ED.

19. As it also transpired at the resumed hearing, Ms Ng’s instructions, having caused an enquiry into the matter at LAD’s prompting, were that it was all a false trail, the position of C&ED being (a) there was insufficient specificity in the applicant’s information to link the two persons, and (b) the raid and arrest in June 2015 were traceable to other sources and had nothing to do with the applicant. 

20. Finally, we were told by Ms Ng that the above result was in fact intimated to the applicant during the adjournment so, in raising Ground 3, the applicant’ was really voicing his disquiet about C&ED’s reply and saying he was cheated. Referring again to the difficulty of putting this allegation to proof and the absence of evidence of C&ED being disingenuous (see paragraphs 14 and 17 above), however, we can only say that this ground is not made out.

Ground 1

21. With Ground 2 and Ground 3 falling away, it only remains for us to say that the sentence in this case was arrived at after a most meticulous exercise.  Faultlessly, the judge had applied the guidelines for trafficking in the stated kind and quantity of dangerous drugs as well as taking account of everything that could be said on the applicant’s behalf.  In particular, we would emphasize that the 45% discount was, and is, the customary maximum for any defendant “who had provided assistance to the authorities without testifying against those about whom they had provided information”[3]. 

Post-sentence events

22. In answer to the applicant’s question (see paragraph 14 above), we repeat what this Court has said on a number of previous occasions, namely, as a general rule, the Court of Appeal is not “a court of post‑sentence supervision”, and that it must be allowed to “remain faithful to its true role of a sentencing review court”[4].  It follows that if, in the event, a situation did arise according to the applicant’s postulation then the proper course would be to refer the matter to the Government for executive relief. 

DISPOSAL

23. For the above reasons, the applicant’s application was dismissed.

[1]  See paragraph 9 of this judgment below.

[2]  In court on 20 January 2016, the applicant explained it to be a fresh application based on fresh information.  He did not, otherwise, divulge any detail.

[3]  See Z v HKSAR [2007] 10 HKCFAR 183, at 194E-G.

[4]  See HKSAR v Conde Nassou CACC 427/2014 (29 January 2016, unreported) at paragraph 23 of the judgment; also HKSAR v Yeung Kwai Kuen [200] 3 HKC 395.