SECRETARY FOR JUSTICE v. KO FEI-TAT

CAAR 15/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 15 OF 2001

(ON APPEAL FROM HCCC 64 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. This matter comes before us, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, as an application by the Secretary for Justice (the Applicant) to review the order that the Respondent should undergo a period of detention at a training centre, which was made by Nguyen J on 22 November 2001. Leave for these purposes was granted by the Chief Judge of the High Court on 10 December 2001.

2. At the time sentence was imposed on the Respondent, he was eighteen years old. The offences he had committed occurred between 28 August 2000 and 6 October 2000 at which time he was nearly seventeen. His date of birth is 13 October 1983. All the offences relating to the Respondent were connected to trafficking in dangerous drugs.

3. The Respondent (D2 at trial) was charged with three co-defendants. They were Chan Pak-ning (D1) and Tse Kin-wai (D3), both aged twenty at the time of sentencing, and Lau Pan (D4) who was twenty-one. D1 pleaded guilty to nine counts of trafficking in dangerous drugs and one count of conspiracy to traffic in dangerous drugs. He was sentenced to five years' imprisonment. D3 pleaded guilty to one count of trafficking in cannabis and to one count of possession of cannabis for which he was ordered to undergo 100 hours of community service. D4, who pleaded guilty to three counts of trafficking in dangerous drugs involving 2.33 grammes of 'ecstasy' and 0.29 grammes of 'ice', received a sentence of two years' imprisonment.

Prosecution's case

4. The case against the Respondent and his co-defendants arose from an undercover operation in which a female police officer (the WPC) posed as a customer at the 'One Night Stand Disco' in Gloucester Road, Wanchai. She was there specifically to observe dangerous drugs activities. During the period between July and October 2000, various of the defendants approached her to sell dangerous drugs, namely 'ecstasy', 'ice' and cannabis. The operation culminated in the arrest of the Respondent and his co-defendants on 6 October 2000.

5. During the early days of the operation, the WPC and another officer had been supplied by D1, sometimes with the assistance of D4, with 'ecstasy' tablets (counts 1-3) and a total of 30 tablets containing small quantities of methamphetamine hydrochloride ('ice') (counts 4-6). However, it is right to say that in regard to latter offences, D1 appears to have believed he was supplying 'ecstasy' tablets having regard to what he said to the WPC and from the visual similarity between the two sorts of tablets. The judge accepted this version of events.

6. On one occasion when purchasing tablets from D1, the WPC was asked whether she would like to purchase some 'ice' and cannabis. She indicated that she was interested and it was only then that she came into contact with the Respondent.

7. At 7.30 p.m., on 27 August 2000, D1 telephoned the WPC and asked her if she wanted any 'ice'. She asked him the price and was told it was $3,000 for one ounce. It was then agreed that it would be delivered to her the following night.

8. At 7.00 p.m., on 28 August 2000, the WPC and another officer arrived at a restaurant in Mongkok to wait for D1. At 7.20 p.m., D1 and a male who answered to the name 'Ah Wai' arrived. D1 told the WPC that his "friend" was bringing the things over. At 7.35 p.m., the Respondent arrived and introduced himself as 'Ko Fei'. He told her that she could buy directly from him next time. The WPC asked him for his telephone number and this was provided. The Respondent asked the WPC if she wanted 'Ngau Ngau' (cannabis) and he told her that it would cost $900 or $1,200 depending on the quality. The Respondent then took out a plastic bag containing a crystalline substance from his trouser pocket and handed it to her. In return, the WPC paid the Respondent $3,000. Subsequent analysis revealed that she had purchased from the Respondent 26.28 grammes of a crystalline solid containing 26.12 grammes of methamphetamine hydrochloride ('ice'). This act of trafficking by D1 and the Respondent was reflected in count 7 on the indictment.

9. At about 6.00 p.m., on 6 September 2000, D1 again called the WPC and asked if she wanted anything. She asked him for the price of 'Ngau Ngau' (cannabis) and was told it would cost $500 for half an ounce. In addition, he asked the WPC if she wanted 'ice' and said he could sell an ounce of 'ice' to her at a cheaper price of $2,800. The WPC then said she wanted half an ounce of cannabis and half an ounce of 'ice'. D1 said he would tell 'Ko Fei' (the Respondent) to call her to arrange the collection of the goods.

10. Later that day, the Respondent telephoned the WPC and advised her that the cost of half an ounce of 'ice' and half an ounce of cannabis would be $1,900 and that he could give them to her the next day in Mongkok.

11. On 7 September 2000, the WPC and another officer arrived at a meeting place which had been arranged. At 5.30 p.m. the Respondent joined them. He took out a black plastic bag from his trouser pocket and handed it to her. She checked inside and found one transparent plastic bag containing cannabis and another containing 'ice'. She gave $1,900 to the Respondent. Subsequent analysis revealed that she had purchased a crystalline solid containing 13.46 grammes of methamphetamine hydrochloride ('ice') and 10.79 grammes of cannabis, reflected against D1 and the Respondent in count 8.

12. Shortly after midnight on 6 October 2000, the Respondent telephoned the WPC and told her that he had some 'ice' and asked her whether she wanted any. He said it would cost $3,000 for an ounce and that he had cannabis as well which would cost $900 an ounce. If she wanted one ounce of 'ice' and one ounce of cannabis, it would be $3,900.

13. At 7.50 p.m., on that same day, the WPC and another officer arrived at an arranged meeting place in Mongkok. They waited until, at 8.30 p.m., the Respondent and another male arrived together. The Respondent said that the 'ice' would be available in an hour's time. He told the WPC to take the cannabis first as he would have to leave because the person bringing the 'ice' was being contacted. The Respondent then handed a packet of cannabis wrapped in white tissue to the WPC and told her to pay after she had received the 'ice'.

14. It was shortly after this that the Respondent was arrested. Subsequent analysis revealed that he had handed to her 16.82 grammes of cannabis (count 9). The conspiracy in count 10 related to the agreement with D1 to traffic in one ounce of methamphetamine hydrochloride.

15. The four offences relating to the Respondent (counts 7-10) were jointly committed with D1 who also pleaded guilty to them. The total amount of methamphetamine hydrochloride actually trafficked in these counts was 39.58 grammes and the Respondent (and D1) had agreed to a further supply of a further ounce (or approximately 28 grammes), making a total of just under 70 grammes of 'ice'. The total amount of cannabis supplied was 27.61 grammes.

16. It was admitted in the court below that the police monthly survey of the street level price of methamphetamine hydrochloride showed that the value of the 'ice' actually trafficked by the Respondent in August and September 2000 (in counts 7 and 8) would have amounted to approximately $22,300.

Sentencing

17. In passing sentence, the judge, having earlier obtained reports about D2, acknowledged the very serious nature of the offence of trafficking in dangerous drugs but, in spite of this, he went on to say:

"The offences that you pleaded guilty to would normally have carried an immediate custodial sentence, but because of your age, your clear record, and the fact that you were only involved in four transactions out of the 10 charges, I am prepared to give you a chance to learn a trade and come out of detention a better person. So, in respect of the four offences to which you pleaded guilty, you are sent to be detained in a training centre.

The usual period of detention in a training centre is about a year to 18 months depending on your conduct in the training centre ...." (Appeal bundle p. 60)

The application

18. It was submitted by Mr Saw, SC, on behalf of the Applicant, that the judge had effectively paid mere lip-service to what has so often been said about the need for deterrence when dealing with offences of this kind because of their seriousness to society, particularly perhaps the younger members of it. It was submitted that the judge gave undue weight to the Respondent's previously clear record and his age.

19. In response, Mr Poots, on the Respondent's behalf, contended amongst other things that clear record and age were both matters which the judge could justifiably take into account and that when, in the exercise of his discretion, the judge decided that a period of training was appropriate, this was not a decision which provided a "soft option" to a prison sentence.

20. As to the last point, this might have had some validity if these offences had been much less serious. However, from the guidance provided in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, the normal tariff for trafficking in 10 to 70 grammes of 'ice' should range from seven to ten years' imprisonment. Plainly, the Respondent's criminality in the present case would normally have merited a sentence, after trial, at the upper end of that bracket bearing in mind that each of the offences, as Mr Saw correctly described them, was a separate and discrete offence calling, with totality in mind, for the imposition of sentences which were to an extent consecutive. This was repeated commercial trafficking in 'ice' over a period of some weeks by the Respondent who, although perhaps comparatively young for a wholesale trafficker in 'ice', was obviously well versed in this activity and had the ability to obtain it in comparatively sizeable quantities at short notice.

21. In regard to the Respondent's age and clear record, this court stated in R v Lau Tak-ming & Ors [1990] 2 HKLR 370 at 386E-G, with specific reference to trafficking in heroin, but having equal force when applied to trafficking in 'ice':

"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."

22. Of course, with present sentencing policy in mind, regardless of his previous clear record the Respondent's timely pleas of guilty would have entitled him, in the event of a prison sentence being imposed upon him, to have received a one-third discount. Conversely, it could be that if he had had a previous history of trafficking offences this would, for the purposes of sentence, have aggravated the offence. However, the one-third discount in circumstances such as these is generally to be regarded as the high watermark of the discount. The Respondent could in no sense plead that he had a positive good character in the sense that, for example, he had given his services freely to the community in some useful and constructive way which might have enabled him to lay claim to any further discount. Furthermore, the Respondent's conduct revealed that his offending was by no means confined to a one-off offence.

23. We are in no doubt, as this court said in Attorney General v Suen Yuen-ming [1989] 2 HKLR 403, that save in "very rare cases", a training centre order for trafficking in substantial quantities of dangerous drugs should not be imposed. In that case, the exceptional circumstances found by the court to have justified the making of a training centre order included the fact that the respondent had been threatened that if he did not comply with a demand that he should store the drugs in question, his girlfriend would he harmed and the family's cooked food stall business would be disrupted, mitigation which had been accepted by the first instance judge. (It is to be noted that this case was decided before the amendment in 1994 to section 109A to include trafficking in dangerous drugs as an 'excepted' offence.)

24. Exceptional circumstances, which are somewhat elusive, were also found in Attorney-General v Kong Kin-man [1997] HKLRD 350, where the headnote at (2) reads:

"(2) Age, whether youth or old age, carried little weight in drug trafficking offences. It was only in rare cases that detention in a training centre was appropriate on a conviction for drug trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed). There was a considerable public interest involved in showing by deterrent sentences that the courts would treat drug trafficking most severely."

25. In that case, where a District Court judge had made a detention centre order for trafficking in a mixture containing just over 13 grammes of heroin, the court found, when substituting a training centre order, that there were no indications of the respondent having embarked on a calculated course of criminal conduct and that it was more a case of a young man "momentarily coming under the influence of a more experienced companion".

26. Returning to the present case, we consider the well-established principle of imposing deterrent sentences in Hong Kong for this type of case was, with the greatest respect to the judge, overlooked. Here, there were no exceptional circumstances. Substantial quantities of 'ice' were being trafficked by an active, persistent and willing participant in the trade who was driven by greed to act in the way he did.

27. We take the view that a prison sentence was inevitable. In usual circumstances, counts 7, 8 and 10 all called for sentences of at least seven years' imprisonment.

28. Count 9, by comparison, paled into insignificance. This was concerned only with 16.82 grammes of cannabis which, in accordance with the guidance given in Attorney General v Tuen Shui-ming & Anor [1995] 2 HKC 798 called for consideration, for amounts under 2,000 grammes of cannabis resin, of a sentence of up to sixteen months. This was, of course, a charge related to herbal cannabis for which the sentence should in any event be less than for an equivalent amount of cannabis resin.

29. One further factor affecting sentence is concerned with the sentences which were imposed on D1. There is no application to review his sentences and we propose therefore simply to bear what happened to him in mind in order to avoid any disparity. Although he was concerned with a larger number of counts on the indictment, he also had significant mitigation.

Conclusion

30. Accordingly, for the reasons we have given, we have concluded that the sentence imposed on the Respondent was not only manifestly inadequate but was wrong in principle. It follows, therefore, that this application succeeds.

31. We shall quash the training centre order previously made and, in its place, we shall substitute sentences on the Respondent which amount in total to four and a half years' imprisonment. (In saying this, as we have already indicated, we have borne in mind the outcome of the case against D1 which left him serving an overall sentence of five years' imprisonment.) On counts 7, 8 and 10, we propose to take starting points of seven years' imprisonment and on count 9 a starting point of three months' imprisonment. We think, in totality, that seven and a half years was appropriate so far as this Respondent is concerned. With a discount of one third, this would have produced a total sentence of five years. Bearing in mind that this represents a substantial increase in the time the Respondent will remain in custody, we propose to reduce the sentence further to a total of four and a half years' imprisonment. We shall impose, therefore, concurrent sentences of four and a half years on counts 7, 8 and 10 and a concurrent sentence of two months on count 9.