HKSAR v. KAWELMACHER JIMMY LEE

CACC 338/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 338 OF 2012

(ON APPEAL FROM DCCC NO. 446 OF 2012)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1. On 31 July to 2 August 2012 the applicant was tried in the District Court before Deputy District Judge C.P. Pang (“the judge”) on a Charge Sheet containing three charges.  The offences were breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115 (Charge 1); trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2); and possession of a poison included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138 (Charge 3).  All the charges were alleged to have occurred on 3 February 2012 and the second and third charges at Room A, 2^nd Floor, No. 255 Queen’s Road East, Wan Chai.

2. In respect of the first charge the applicant had been permitted to enter and remain in Hong Kong as a visitor until the 24November 2010 after having entered Hong Kong on 26 August 2010.

3. The particulars of the second charge alleged that he unlawfully trafficked in nine tablets containing 0.01 gramme of nimetazepam and 9.25 grammes of a crystalline solid containing 8.99 grammes of methamphetamine hydrochloride, commonly known as ICE.

4. The third charge alleged that the applicant was in possession of 30 tablets containing sildenafil which is a chemical component of viagra and other like medications.

5. The applicant ultimately pleaded guilty to all charges and the judge sentenced him to 1 month’s imprisonment for the first charge; 4 years and 10½ months’ imprisonment for the second charge; and 3 weeks’ imprisonment for the third charge.  The judge ordered all sentences to run concurrently and so the applicant was sentenced to a total term of 4 years and 10½ months’ imprisonment.

6. The applicant applied for leave to appeal his sentences.  The Perfected Grounds of Appeal are directed only at the sentence of Charge 2.  At the hearing of his application we allowed the application, treated the hearing of the application as the hearing of the appeal, set aside the sentence of the judge on Charge 2 and in its place sentenced the applicant to 4 years and 4 months’ imprisonment.  We said we would hand down our reasons for our judgment at a later date and this we now do.

The Trial

7. The prosecution case was quite simple.  The police intercepted the applicant as he was exiting a flat in Wan Chai.  They searched him and found on his person the nimetazepam tablets and keys to the flat.  They then executed a search warrant against the flat and found the ICE and other drug paraphernalia.

8. The applicant pleaded guilty to the first charge but initially pleaded not guilty to the second and third charges.  His pleas of not guilty to the second and third charges were made in order to advance a legal argument in relation to the execution of the search warrant in an effort to have the seizures under that warrant excluded from evidence.  He was unsuccessful and when his application was refused he changed his pleas to guilty to both charges.

9. It was the applicant’s case that the warrant cards of the Police Officers who arrested him and searched his house had expired and that the Police Officers who gained entry to the flat did so by deceiving another occupant of it that they were looking for a foreigner in connection with a traffic accident.  Finally, it was alleged that the search warrant was not shown to the applicant.  All of these matters formed the basis of the application to exclude the evidence of the drug exhibits that had been seized from the flat upon the execution of the search warrant.  The prosecution admitted that the Police Officers’ warrant cards had, in fact, expired and that the Police Officers did use a false representation in order to gain entry to the premises.  No evidence was called in respect of this application and it absorbed half a day’s court time.  The judge ruled upon the application in the afternoon of the first day of the trial and refused it.  Thereupon, the applicant changed his pleas to guilty in respect of the second and third charges.  The applicant agreed to a Summary of Facts and it formed the basis on which he was sentenced.

The Summary of Facts

10. The Summary of Facts in relation to Charge 1 simply revealed that the applicant entered Hong Kong on 26 August 2010 and that his entry was “lawful on a visitor status.  He was allowed to stay until 24 November 2010”.[1] Finally, the applicant admitted that his visitor status had not been extended beyond 24 November 2010.

11. In respect of Charges 2 and 3 the applicant admitted the following facts:

“1. At around 7 p.m. on 3 February 2010, police conducted an operation at a partitioned flat located at 2/F, No. 255 Queen’s Road East, Wan Chai. D was intercepted when he was leaving Room A, a room of the partitioned flat. Upon search, one foilpack containing 9 tablets containing a total of 0.01 gramme of nimetazepam and two keys which could open the door to Room A were found from D’s left front pocket.

2. A search warrant was executed inside Room A. Upon search, the American Passport of D was found on a table inside Room A.

3. Three packets of empty transparent re-sealable plastic bags, a pack of aluminum foil, an electronic scale, one plastic sealing machine and 30 tablets containing sildenafil (which is a listed Part I poison) were found inside the room. Furthermore, the following items, all containing dangerous drugs, were found inside the room:

(a) two plastic bags containing a total of 9.25 grammes of a crystalline solid containing 8.99 grammes of methamphetamine hydrochloride;

(b) one glass bottle with a dropper and one plastic bottle containing 23 milliliters of a liquid containing traces of methamphetamine and ketamine;

…

(d) one test tube containing traces of powder containing methamphetamine;

(e) one inhaling device containing traces of methamphetamine;

(f) one glass bottle inserted with one glass tube which was further connected to a rubber tube and a plastic straw containing traces of methamphetamine.

…

9. D had cash of HK$3,192 with him at the time of the arrest.

10. The total estimated street value of the 9 tablets of nimetazepam and the 9.25 grammes of solid containing methamphetamine hydrochloride was HK$7,874. The D asserts that he procured 8.99 g of ice at the cost of HK$3,600.” [2]

The Mitigation

12. The applicant was represented at trial by a solicitor, Mr Ho Chi-kit, of Katherine Y W Or & Co.  He informed the court that the applicant was aged 36 and is a U.S. citizen.  Although not married he has two children, one 17 years of age and the other 4 years of age.  He told the court that the applicant had previously worked as a software engineer in the United States until his employment took him to Australia.  But after being made redundant in Australia, he returned to the United States.  He came to Hong Kong in search of employment but the job he had hoped to obtain never materialized.  However, he decided to remain in Hong Kong and did so until arrested by the police.  He has a clear record in Hong Kong.

13. Mr Ho went on to submit to the judge that the applicant should receive the benefit of the full one-third discount for his plea of guilty to Charges 2 and 3 notwithstanding that he had initially pleaded not guilty to those charges and had applied to exclude prosecution evidence in respect of them.  He based his submission on the fact that minimal court time had been wasted, that the argument was a purely legal one and that no evidence had actually yet been called on the general issue.  He argued that as the prosecution admitted two of the grounds of the application to be true, namely that the warrant card of the Police Officers had expired and that the police officers had gained entry to the flat by a deceptive device, the application should be regarded as a genuine one which had not been made in bad faith.

14. Mr Ho correctly focussed upon the second charge as the main charge and the one likely to attract the most severe sentence.  In trying to minimize the gravity of this offence, he referred to the quantity of drugs involved which he described as “relatively small”.[3] This caused the judge to query whether it was being asserted on behalf of the applicant that the drugs were, in fact, for his own consumption.  Thereafter, the following exchange took place:

“COURT: Are you suggesting that these amounts of drugs were for his own consumption?

MR HO: No, no, but, well, what …

COURT: I don’t understand what you mean.

MR HO: Yes, it is my suggestion that this kind of -- the amount of drugs is not very high and that that’s my suggestion. Yes. Yes, your Honour …

COURT: So you are not suggesting that that was for his own consumption.

MR HO: No, no, of course not, not …

COURT: All right. Thank you.” [4]

15. Mr Ho then went on to refer the judge to the appropriate sentencing authority, namely Attorney General v Ching Kwok-hung [1991] 2 HKLR 125.  The guideline provided by the Court of Appeal is that for a quantity of ICE up to 10 grammes, the appropriate sentencing band is 3 years to 7 years’ imprisonment.  Mr Ho then sought to persuade the judge that he should adopt a starting point at the bottom end of this range, that is 3 years’ imprisonment, and the reasons he gave the judge for so doing were because there was no evidence of the applicant actually selling drugs, no cross-border element to his trafficking, the drug quantity was relatively small and the personal background and clear record of the applicant.  When queried by the judge as to why he should, for a quantity of ICE that was towards the top of the sentencing band, adopt a starting point at the bottom end of the sentencing band, Mr Ho submitted that the judge should take into account that the applicant, being a foreigner, would find serving a sentence in Hong Kong harder to endure and that the prosecution case was not particularly strong in that there was no forensic evidence, such as fingerprint or DNA evidence, to link the applicant to the premises in which all the drugs and drugs paraphernalia were found.

The Judge’s Reasons for Sentence

16. After setting out the facts which the applicant had admitted for the purposes of sentencing and the mitigation advanced on his behalf, the judge, under the heading “Sentencing Consideration”, discussed his approach to sentence.  His very first comment was to make the observation that “the defendant should consider himself very lucky that he was not prosecuted for manufacturing of dangerous drug which is a more serious charge than trafficking in dangerous drugs.  From the photographs produced to the court, the room occupied by the defendant was just like a mini-laboratory with suspicious paraphernalia, including various types of glass bottles, test-tubes and rubber tubes”.[5]

17. Notwithstanding this comment, the judge went on to make it clear that he was sentencing the applicant only on the basis of the charge of trafficking in dangerous drugs ignoring what he described as a “suspicion arising from the exhibits and circumstances for manufacturing of dangerous drug”.[6]

18. For the first charge he noted that the applicant had overstayed for a period of about 14 months and that there was no tariff for this offence. Further noting that the maximum sentence was 2 years’ imprisonment and that the applicant’s overstay status was only discovered when he was arrested for the drugs offence, the judge indicated that he would take 1 ½ months’ imprisonment as his starting point and then reduce it to 1 month for the plea of guilty.  He was aware that there was case authority for suspending a sentence of imprisonment for this offence but did not see that there existed grounds in respect of this applicant that would justify such a course.

19. In respect of the second charge he noted that it included two different types of drugs which would normally require him to adopt either a combined approach to sentencing or an individual approach.  However, in view of the small quantity of nimetazepam that was involved in this charge he concluded that it didn’t really add anything to the overall criminality of the trafficking charge and so decided to ignore the nimetazepam for the purpose of determining the applicant’s sentence.  He rejected Mr Ho’s submission that he should adopt as his starting point the bottom of the sentencing range appropriate for 8.99 grammes of ICE.  This was, in fact, a quantity that is towards the very top of the relevant sentencing band which covers amounts up to 10 grammes.  He recognized that the sentencing band was not to be applied in a mathematical way and that some leeway existed for him as to where he should start within it but he further recognized that the practice of the court is normally to determine sentence mainly by reference to the quantity of drugs.  He then specifically addressed the issue of whether the drugs were for the applicant’s own consumption, saying:

“During mitigation, it has been clarified that there is no suggestion that the drugs were for the defendant’s own consumption.” [7]

He then went on to indicate that for a quantity of ICE of 8.99 grammes the appropriate starting point in his judgment was 6½ years.

20. In respect of the third charge he noted that no explanation had been offered to him by the applicant for his possession of the Part I poison.  He said he would take 4 weeks’ imprisonment as the starting point for his sentence on this charge.

21. The judge then went on to discuss what discount he should allow the applicant for his pleas of guilty to the second and third charges.

22. He referred to the arguments advanced by Mr Ho but noted that the one-third discount is an entitlement that an accused person receives when his plea is entered in a timely manner.  However, in this case the applicant had initially entered pleas of not guilty to the second and third charges and in so doing had wasted the court’s time by advancing an application that was ultimately unsuccessful.  He concluded that a full one‑third discount for this applicant was not justified and in reaching this view he quoted a comment of Yeung JA, as he then was, in HKSAR v Lam Chor Ping [2010] 1 HKLRD 670 and 673:

“The accused not only wasted the court’s time and prevented the court from dealing with other cases more expeditiously but also wasted public money, including expenses arising from prosecutorial work and provision of legal aid.”

He took into account that not much time had been wasted and so he reduced the one-third discount that the applicant would otherwise have received by only 8% to 25%.

23. He rejected the applicant’s foreignness as a mitigating factor saying that he would give no weight to it.  Likewise, he attached no weight to the clear record in Hong Kong of the applicant.

24. He then went on to sentence the applicant to 1 month’s imprisonment on the first charge, 4 years and 10½ months’ imprisonment on the second charge and 3 weeks’ imprisonment on the third charge, further ordering that all sentences be served concurrently making a total term of imprisonment of 4 years and 10½ months.

The Grounds of Appeal

25. There are five grounds of appeal and they all focus on the second charge only.  The first is that the judge allowed his comment that the applicant was fortunate not to have been charged with manufacturing of dangerous drugs to influence his decision on the appropriate length of sentence that the applicant should serve.

26. The second ground of appeal asserts that the judge erred in giving only a 25% discount for the applicant’s guilty pleas to the second and third charges, given that those pleas had been entered before any evidence had been called.

27. The third and the fourth grounds of appeal effectively allege incompetence of counsel in respect of two matters.  The third ground of appeal refers to advice given to the applicant by his legal representative to the effect that he would not lose any part of his one-third discount by advancing a legal challenge to the admissibility of the search warrant seizures.  The fourth ground of appeal complains that the applicant’s legal representative failed to put forward on behalf of the applicant that a substantial proportion of the ICE was for the applicant’s own consumption.

28. The fifth and final ground of appeal is simply that the applicant’s sentence on Charge 2 is manifestly excessive and/or wrong in principle.

29. In support of grounds three and four of his Perfected Grounds of Appeal, the applicant filed an affidavit to which he exhibited his instructions to his solicitors and a number of pieces of correspondence between the Legal Aid Department and his solicitors.

30. In paragraph 6 of his affidavit, the applicant referred to his complaint that is the subject of his third ground of appeal.  He said on oath:

“6.   … I discussed the matter with Mr Ho and indicated I wished to raise these points in the same way.  I asked him what would happen if we “lost” and I then pleaded guilty, and, in particular, whether or not I would still get a 1/3 discount. My solicitor told me that provided that I pleaded before any evidence was called I would retain my full discount. …”

31. In paragraphs 7 and 8 of his affidavit he referred to his instructions that the drugs were for his own use.  He said on oath:

“7. I had originally asked Mr Ho to try and investigate a Plea Bargain on the trafficking charge, on the basis that the Drugs were for my own consumption. This was unsuccessful but I believe this made it clear that my position was that these drugs, or most of them were for my own use.

8. … I told Mr Ho while we were in the District Court Cells that I had “procured” the drugs for my own use. He did not ask me what I meant. In fact while I intended to use most of the “Ice” (about 7 grammes) myself, I estimate that about 2 grammes would have been sold to others to cover my costs in obtaining the Ice. …

32. In response to the affidavit filed by the applicant, Mr Ho, at the request of the court, has filed his own affirmation in which he affirmed as follows:

“7. I do admit that at the time when I took instructions with the Applicant as mentioned in Paragraph 6, the Applicant had asked me if the 1/3 discount will be lost if he pleaded guilty. (sic)

8. I do admitted that I had told him that he would not lose the 1/3 discount as the case had not been opened yet.

9.   The reason is that I am of the view that the exclusion of search evidence is a pre-trial matter.”

33. In respect of the claim that the bulk of the ICE was for self‑consumption, Mr Ho affirmed:

“11. Save and except the change of guilty plea and the instructions to me that the “Ice” were for own use, Paragraph 8 of the Affirmation is not admitted, especially there was any allegation of the Applicant that “about 2 grammes would have been sold to others to cover my costs in obtaining the Ice”. I did explain verbally to the Applicant that there would be a Newton Enquiry if the point of self consumption was raised. However, the Applicant told me that he did not want to have any hearing and wanted the case be finished on that day.

12.  I had raised the self-consumption during mitigation.  However, the Learned Judge commented that the charges were of trafficking.”

Discussion

34. In respect of the first ground of appeal Mr McGowan, counsel for the applicant, argues that a starting point of 6½ years’ imprisonment was high for the quantity of drugs involved and also given the fact that the applicant was of good character and that he was a foreigner.  There is nothing in this ground.  The applicant was in a 3-7 year sentencing band that catered to amounts of ICE up to 10 grammes.  Trafficking in 8.99 grammes would inevitably lead any trial judge to adopt a starting point towards the top of the band.  True it is that a sentencing judge does have some leeway as to where within a relevant sentencing band he should take his starting point and, in appropriate cases, may take a starting point much lower than the quantity of drugs would otherwise suggest as appropriate.  But that will be to allow for genuine mitigating features.  The applicant is only 36 years of age and there is no suggestion that he suffers from any personal idiosyncrasy which would make prison life here particularly hard for him.  The fact that he is a foreigner does not, by itself, entitle him to any special consideration.

35. He is also said to be of good character but this claim is only made in respect of his period in Hong Kong.  This is a curious submission for by his plea of guilty to the first charge he admits that for the bulk of his time in Hong Kong he was committing the continuing offence of breach of condition of stay.  This conduct negatives any claim that by virtue only of a lack of prior convictions the applicant was of good character.

36. There is no basis for extending to the applicant any particular leniency in the adoption of a starting point within the 3-7 years sentencing band.

37. The comments by the judge in relation to manufacturing were unnecessary but there is nothing to indicate that they influenced him in his adoption of 6½ years as his starting point.

38. For the reasons we have given we are of the view that a 6½ years’ imprisonment starting point is not excessive for this applicant trafficking in this quantity of ICE.

39. The second ground of appeal complains that the applicant should not be penalised for the unsuccessful application he made after pleading not guilty. Again, reliance is placed upon the fact that there was some truth to the allegations being made by the applicant, albeit that was not enough to assure him success with his application.

40. Mr McGowan, in advancing this argument, simply repeats the flawed understanding of the legal rationale for the granting of the discount and for its reduction when, by his actions, a defendant diminishes the public interest benefits flowing from a guilty plea.  A similar argument that reducing the discount punished a defendant for exercising his legal rights was addressed and rejected by a differently constituted Court of Appeal in HKSAR v Man Siu Ming & Anor CACC 318/2011; unreported, 5 August 2013.

41. It is clear from that judgment and the cases cited in it that the merits or lack of merits of the application which a defendant wishes to make, and which in order to make pleads not guilty, is irrelevant to the question of whether the one-third discount should be reduced.  There is no merit in this ground of appeal.

42. The third ground of appeal also complains about the failure of the judge to award the applicant the full one-third discount for his plea of guilty, but this ground is not based upon a criticism of the judge but rather of the applicant’s trial counsel.  In support of this ground of appeal it is asserted that the applicant suffered “flagrantly incompetent” legal representation.

43. It is apparent from the affirmation of Mr Ho that he did not understand the legal rationale for the one-third discount for a guilty plea and why and in what circumstances part of that discount might be lost.  Proceeding on an erroneous understanding of the law he tendered wrong legal advice to the applicant as a result of which the applicant lost the benefit of a full one-third discount when he subsequently pleaded guilty to Charges 2 and 3.

44. The law relating to incompetency of counsel as a ground of appeal is set out in the decisions of the Court of Final Appeal in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 and Chan Fat Chu v HKSAR (2009) 12 HKCFAR 775.  We shall not repeat the principles set out in those judgments other than to emphasise that the ultimate question is whether the defendant received a fair trial.  The Court of Final Appeal in Chan Fat Chu said that when an appellate court receives an allegation that a defendant received less than a fair trial as a result of the incompetence of his counsel it is incumbent upon the appellate court to investigate this allegation. This we have only been able to do through reliance on the materials filed with the court.  We therefore acceded to the application of the applicant to receive fresh evidence on appeal pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221 and received into evidence the affidavit of the applicant and also the affirmation of Mr Ho.

45. In order to determine whether the applicant, by reason of the incompetence of his legal representation, received less than a fair trial and thereby suffered injustice, it is useful to also consider the material relevant to the fourth ground of appeal.  This ground, it will be remembered, complains that the applicant’s trial counsel failed to put forward in mitigation a claim that the bulk of the ICE was for the applicant’s own consumption.  On this issue we have had regard to Mr Ho’s affirmation, his correspondence with the Director of Legal Aid and the transcript of the mitigation, the relevant parts of which we have already quoted in this judgment.  From these materials it is apparent to us that Mr Ho did not appreciate that a defendant who pleaded guilty to trafficking in a dangerous drug could obtain a discount on his sentence if he could persuade the trial judge that part of the drugs in which he trafficked were for his own consumption.  There is no need for us to repeat the legal principles on this issue for they can be found in cases such as HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 and, since this trial, HKSAR v Ngai Ho Ting [2013] 4 HKC 547.

46. Counsel for the respondent relied upon the Court of Appeal’s judgment in HKSAR v Lam Chor Ping [2010] 1 HKLRD 670 but that case involved an unrepresented applicant whose complaints about the quality of his legal representation appear to have been dismissed by the court without the need for evidence.  That case is distinguishable from the circumstances of the present case.

47. We are satisfied that the applicant did not receive the level of legal representation to which he is entitled and that as a direct result he suffered injustice in that he lost the benefit of a full one-third discount for his guilty pleas and the opportunity to persuade the sentencing judge that a substantial part of the ICE was for his own consumption.  These failings of Mr Ho on key legal principles relevant to his client’s instructions went beyond simple negligence or isolated errors of judgment.  The consequence is that the applicant did not have a fair trial.  The third and fourth grounds of appeal succeed and the judge’s sentence in respect of the second charge must be set aside.

48. At the hearing of the appeal we indicated to Mr McGowan that we were persuaded that there was merit in his third and fourth grounds of appeal and were minded to allow the applicant a full one‑third discount on the starting point of 6½ years’ imprisonment that had been adopted by the trial judge.  This would result in a sentence of 4 years and 4 months’ imprisonment.  We further indicated to Mr McGowan that, on the facts of this particular case, we could not accept a bare assertion by the applicant that the bulk of the drugs were for the applicant’s own consumption and that if the applicant wished to press this assertion he would have to give evidence in support of it.  We also reminded Mr McGowan that should the applicant not succeed on a Newton enquiry then he placed at risk his one-third discount that he would otherwise receive for pleading guilty.  After taking instructions Mr McGowan informed the court that the applicant did not wish a Newton enquiry and would not call evidence in support of this particular aspect of his mitigation.

49. However, Mr McGowan did not abandon the applicant’s assertion as contained in his affidavit that he would have sold only about 2 grammes of the ICE.  Mr McGowan relied on the judgment of the Court of Appeal in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 and argued that notwithstanding that the applicant chose not to give evidence in support of his assertion, this Court could nevertheless find, by application of the principles set out in Wong Suet Hau to the evidence before the court, that his self-consumption claim is made out.  But that is an exercise this Court conducted before informing Mr McGowan that if the applicant wished to press this aspect of his mitigation he would need to support it with evidence.  Such an indication was given to Mr McGowan in accordance with the Court of Appeal’s decision in HKSAR v Ngai Ho Ting [2013] 4 HKC 547.

50. We have seen the photographs of the flat to which the applicant had the keys.  Clearly these premises were being used for the packaging of dangerous drugs and also for their consumption, but whether for the consumption of the applicant or others we are unable to say.  Given the evidence before us we do not accept the applicant’s unsupported claim that the bulk of the drugs were for his own consumption.

51. The applicant is not entitled to any further discount on his sentence other than the full one-third discount which we have granted him.

Conclusion

52. For the reasons set out in this judgment we allowed the application for leave to appeal, treated the hearing of the application as the hearing of the appeal, set aside the sentence imposed by the trial judge for Charge 2 and ordered in its place that the applicant he sentenced on this charge to serve a period of 4 years and 4 months’ imprisonment.  All other sentences and orders of the judge remain undisturbed.  As all sentences are to be served concurrently the applicant will serve a total sentence of 4 years and 4 months’ imprisonment.

[1]   Page 3 of the appeal bundle.

[2]   Pages 4-7 of the appeal bundle.

[3]   Page 23 of the appeal bundle.

[4]   Pages 23-24 of the appeal bundle.

[5]   Page 13F-I of the appeal bundle.

[6]   Page 13L of the appeal bundle.

[7]   Page 15J-K of the appeal bundle.