CACC 80 /2020
[2021] HKCA 674
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 80 OF 2020
(ON APPEAL FROM HCCC NO 410 OF 2019)
________________________
BETWEEN
HKSAR
Respondent
and
Wong Keat Jeang
Applicant
________________________
Before:
Hon Macrae VP in Court
Date of Hearing:
5 May 2021
Date of Judgment:
5 May 2021
________________________
J U D G M E N T
________________________
1. The applicant was charged with one count of trafficking in a dangerous drug contrary to section 4(1) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the offence were that on 28 April 2019 at Room M338A Customs Arrival Hall, Hong Kong Macau Ferry Terminal in Sheung Wan, the applicant unlawfully trafficked in a dangerous drug, namely 1,403 grammes of a mixture containing 1,140 grammes of heroin hydrochloride. The applicant pleaded guilty in the magistrate’s court and, having been committed to the High Court, was sentenced by Barnes J (“the judge”), on 29 May 2020, to 16½ years’ imprisonment. The applicant now applies for leave to appeal against sentence.
The facts
2. At about 1:50 pm on 28 April 2019, the applicant was intercepted for customs clearance at the Customs Arrival Hall of the Hong Kong Macau Ferry Terminal. He was taken to a room for an examination of his bag, inside which were found 4 plastic packets containing heroin hydrochloride in the quantities particularised in the charge. The applicant was also in possession of a mobile telephone and some small amounts of foreign currency.
3. In a post-recorded notebook entry after arrest and caution, the applicant stated that the 4 plastic packets found in his possession contained medicines “for relaxing”, which he had purchased online in Malaysia; he was to hand the 4 plastic packets to someone after receiving a telephone call in Hong Kong and would be given MYD10,000 as a reward. A photograph depicting a packet of white powder, apparently taken just over two hours before his interception, was found in a camera file of the telephone in the applicant’s possession.
4. The applicant agreed to take part in a controlled delivery operation conducted inside a room at the IND Hotel on 28 and 29 April 2019. However, this was ultimately unsuccessful, since nobody came to collect the drugs. In a subsequent video recorded interview, the applicant refused to answer any questions, other than to state that he had assisted Customs officers and hoped that the court could impose a lenient sentence on him.
Mitigation
5. The applicant, who was 26 years of age, is a Malaysian National, working in Malaysia as a part-time salesman. It was submitted that by his active assistance to the authorities in a controlled delivery operation lasting more than 20 hours, the applicant was deserving of a 40% discount from the appropriate starting point[1]
Sentencing
6. The judge adopted a starting point of 22 years and 9 months’ imprisonment for the quantity of dangerous drug concerned. This was enhanced by 2 years, to 24 years and 9 months, because of the international element involved in bringing the drugs across the border into Hong Kong. The applicant then received a full one third discount for his guilty plea resulting in a sentence of 16½ years’ imprisonment.
7. The judge declined to give the applicant any further discount for his assistance in the controlled delivery operation. She was referred to the statement of a Customs officer, which described numerous attempts by the applicant to contact the person who was supposed to collect the drugs. The applicant had called the person he was to contact by WhatsApp video and presented himself and his passport on camera. However, the judge had concerns about one of the calls[2]
“I note that during one of the calls, it was the defendant who left a message for [the contact], saying that he would bring the goods, meaning drugs, back to Macau or Malaysia should no one come to collect them. Six minutes after that, [the contact] left a message for the defendant, saying that he would arrange for the handover in Macau. The operation failed because the controlled delivery could not take place in Macau. On this point, it is not quite correct to say, as it did in the Admitted Facts, that the operation failed as the other side requested the delivery be carried out in Macau when it was the defendant who first suggested such a course.”
8. In order to enquire further into the matter, the judge adjourned the hearing for two days. When the hearing resumed on 29 May 2020, she heard further submissions as to the circumstances surrounding the abortive controlled delivery operation. Counsel for the defence declined to have a Newton hearing, saying that it was not necessary. The judge then found[3]
“Today, 29 May 2020, I was informed that the name of [the contact] was indeed saved on the contact list of the defendant’s mobile phone and that it was the defendant who using his own initiative, allowed by the Customs officers, told [the contact] about taking the goods to Macau or Malaysia, in other words, that was not done on the instructions of the officers.
According to the Admitted Facts, the defendant told the Customs officers under caution that he would hand the packets to someone after receiving a phone call in Hong Kong. He did not tell the officer that that person was someone whose name and telephone number were stored on his mobile phone. Also that after the operation failed because [the contact] wanted to arrange for the handover in Macau after the defendant said that he would bring the goods to Macau or Malaysia, the defendant did not render any further assistance by refusing to say anything during the VRI. Of course, the defendant has the right to remain silent. However, when it comes to my assessment of the assistance rendered, I bear in mind the defendant did not use this opportunity to render further assistance during the VRI.
Having considered all the circumstances, I am far from being satisfied that the defendant should be given such a high discount of 40 per cent. In the absence of why he has suggested to [the contact] that the handover, that he should bring the goods, meaning the dangerous drugs, to Macau and his lack of assistance after the failed operation, I am of the view that this is a case in which I should give no discount for the defendant’s participation of the failed controlled delivery.”
The applicant’s submissions
9. The applicant, represented at this application but not the trial by Mr HY Wong, advances one ground of appeal. He contends that the judge erred in declining to give any further discount for the applicant’s assistance in the controlled delivery operation, in addition to the one third discount for the applicant’s plea of guilty.
10. It is said that when one looks at the controlled delivery in its entirety, the applicant’s suggestion to take the drugs back to Macau or Malaysia was plainly a bluff, made by the applicant in an effort to try and entice the recipient of the drugs to come out to collect them as soon as possible. Mr Wong submits it was not the fault of the applicant that the controlled delivery failed.
11. According to Customs Officer 18111, the controlled delivery operation lasted for some 20 hours: from 17:55 hours on 28 April to 14:25 hours on 29 April 2019. There were several failed attempts to ask the contact to come and collect the drugs on 28 April 2019, resulting in the applicant, at 13:13 hours on 29 April, messaging the contact to suggest that if no one came and collected the drugs from him, then he would bring the drugs back to Macau or Malaysia. This had prompted the contact to say that the handing over of the drugs would be done in Macau.
12. Mr Wong draws the Court’s attention to the statement of Customs Inspector Lam Tsz Kuen that, throughout the controlled delivery operation, he had given instructions to let the applicant decide “the way” and to use his own words when communicating with whoever was to collect the drugs[4] [5]
13. Mr Wong relies on the decision in HKSAR v Lo Sze Tung Stephanie [6] [7]
Respondent’s submissions
14. The respondent, represented by Ms Sheroy Tam, stresses that 40% remains the “high-water mark” for discounts for this factor, including the customary one-third for plea[8]
15. Ms Tam further submits that the judge had also made findings in respect of the applicant’s refusal to say anything of assistance in his subsequent VRI; and the fact that under caution upon arrest, the applicant had merely told the officers that he would hand the 4 packets to a contact after receiving a telephone call in Hong Kong, yet failed to mention that the name and number of that contact had been saved in his telephone. She reminds me that the applicant was offered the opportunity of giving evidence at a Newton hearing to explain these matters, but refused.
Consideration
16. I do not propose to say anything more than there are reasonable arguments either way. The appeal will centre on the correctness of the judge’s resolution of the evidence and arguments before her. Since I view the ground of appeal as averred to be reasonably arguable, I shall grant the applicant leave to appeal against sentence.
(Andrew Macrae)
Vice President
Ms Sheroy Tam SPP, of the Department of Justice, for the Respondent
Mr H Y Wong, instructed by SSW & Associates, assigned by the Director of Legal Aid, for the Applicant
[1] Appeal Bundle (“AB”), p 14J-M.
[2] AB, p 15O-T.
[3] AB, p 16B-P.
[4] AB, p 28.
[5] AB, p 28.
[6] HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309.
[7] Ibid. , at [49].
[8] Ibid. , at [51].