HKSAR v. NG YAU KAU AND ANOTHER

CACC374/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2007

(ON APPEAL FROM HCCC 88 OF 2007)

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    REASONS  FOR  JUDGMENT

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McMahon J (giving the reasons for judgment of the Court) :

Background

1. Both applicants pleaded guilty before Deputy Judge Toh in the High Court to two joint counts of trafficking in a dangerous drug.  The 1^st count involved 998 tablets containing 8.53 grammes of methamphetamine, and the 2^nd count 2,961 tablets containing 24.55 grammes of the same drug.  Both applicants were sentenced to four years’ imprisonment for the offence the subject of the 1^st count and five years’ imprisonment for the offence the subject of the 2^nd count.  The judge ordered three years of the latter sentence to run consecutively.  That resulted in a total sentence of seven years for each applicant.  Both applicants sought leave to appeal their sentences.  On 12 June 2008 we dismissed their applications and now give our reasons.

Facts

2. The facts of the 1^st count offence were straightforward.  On 1 February 2007, the 1^st applicant was introduced to an undercover police officer (PW1) and after a brief conversation, told PW1 that he had methamphetamine for sale at $21 a tablet.  PW1 agreed to purchase 1,000 tablets, and shortly afterwards the 2^nd applicant delivered the drugs to an agreed place.  Upon confirmation of the delivery of the drugs PW1 paid $21,000 to the 1^st applicant.  The following day a further delivery of drugs, the subject of the 2^nd count, took place in much the same way.  It had been agreed this transaction would take place in the event the first transaction was successfully completed.  This time PW1 paid $63,000 to the 1^st applicant for the 2,961 tablets delivered.

3. The methamphetamine contained in the tablets was not in the refined crystallised form of methamphetamine hydrochloride (“ice”) but the judge adopted the guidelines established in Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125.  No complaint is made of that before us. 

4. Prior to sentencing, the 1^st applicant gave evidence in a Newton enquiry as to his belief that the tablets contained a less potent drug than methamphetamine.  His evidence was adopted by the 2^nd applicant in his own case.  The judge rejected the 1^st applicant’s evidence and concluded that both applicants were aware the tablets they sold the undercover police contained methamphetamine.

Ground of appeal

5. Mr John Halley advances the same ground of appeal on behalf of both applicants.  That is, that the totality of sentence imposed on each applicant was manifestly excessive.

6. His primary argument was that because of the offences being so closely “linked” in the sense that the second transaction was dependent on the first, and their taking place on consecutive days, the judge should not have adopted separate starting points for each transaction but that the proper approach to sentence would have been to calculate an overall starting point based on the combined quantity of narcotic and then to impose a totality of sentence, after discounting the sole mitigation of the applicants’ plea of guilty.  That approach, we accept, would have arrived at a lesser totality of sentence than that achieved by the judge.

7. In support of his argument Mr Halley relies upon HKSAR v. Chow Yu Chi (unreported), CACC359/2000 where, in dealing with an applicant charged with trafficking in heroin on two separate occasions during the same day, the court said :

“… In circumstances such as these, where both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive at a total weight. …”

8. But the facts of that case differed significantly from those in the present case.  In Chow Yu Chi the defendant was found to be in possession of a small amount of heroin when he was stopped and searched in the street.  When he was taken back to his premises a further larger quantity of drug was found which was plainly the stock from which had been taken the smaller quantity found on the defendant’s person.

9. In circumstances such as those, where the drugs possessed by a defendant were part of a common stock and in his continuous possession, the fact that he has divided that stock so as, for example, to keep part of it on his person and the remainder in his premises should not result in a higher sentence than if he had kept the stock of drugs undivided : see HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42 and HKSAR v. Yu Wang Tim (unreported), CACC191/2002.  In such circumstances, even where the defendant faces separate charges for each amount, the sentencing court should look to the total quantity of drugs in arriving at an overall starting point.

10. But where, as in the present case, there are separate incidents of actual trafficking, regardless of whether the undertaking of the second transaction was dependent on the successful completion of the first transaction, then different considerations apply.  It is not just the totality of drugs in the defendants’ possession which goes to the overall criminality of the offence, but also the separate acts of trafficking.  In cases such as the present the approach taken by the judge in adopting separate starting points and then arriving at a discounted sentence in respect of each offence was the correct approach.  Matters pertaining to the totality of sentence are then able to be taken into account and a proper totality arrived at by ordering the sentences to be served partly, at least, concurrently.  There was no error of principle in the judge’s sentencing approach : see HKSAR v. Lai Yau Fat (unreported), CACC278/2000 and HKSAR v. Leung Ka Ho (unreported), CACC304/2007.

11. Mr Halley’s further argument, however, is that even if the approach taken by the judge in the present case was correct, in considering the totality of sentence she did not give sufficient weight to the nexus between the two offences, nor to the fact that the applicants should have been arrested after the first transaction, thus preventing the offence the subject of the 2^nd count from occurring.

12. So far as the first point is concerned, the judge no doubt did give consideration to the “linkage” between the two offences, and particularly that the second offence took place only a day after the first offence, when ordering the sentences for the two offences to be served partly concurrently.  So far as the latter point is concerned, we are perfectly satisfied that the police were under no obligation to arrest the applicants after the first transaction.  It is quite obvious that the purpose of undercover operations such as that in the present case is, amongst other things, to discover the scope of the supply operation and the identity and role of those involved.  To bring such an operation to a premature conclusion by arresting suspects at the point of time of a first offence would negate the undoubted value of such operations.  There was no suggestion before us that the second offence was committed at the instigation or request of the undercover police.  If that had been so, then that may well have been a significant factor to take into account in favour of the applicants.  Rather, from the material before us, it appears to be quite clear that the drug trafficking operation of the applicants was an activity conducted independently of the police involvement and would have continued had the arrests of the applicants not brought it to an end.  Having said that however, we accept that the totality of the sentences arrived at were on the high side given the “linkage” between them.  But that is balanced by the judge allowing a full one-third discount to each applicant even though each challenged, in a Newton hearing, the prosecution’s assertion that they knew they were selling and delivering tablets containing, specifically, the drug methamphetamine.

13. Having rejected that assertion the judge nevertheless allowed each the benefit of a full discount for their guilty pleas.  In our view she should not have done so.  A plea of guilty is a potent mitigating factor because it indicates remorse.  Where that is diluted by a defendant’s unsuccessful challenge to a factual aspect of the case relevant to mitigation, then the full discount should not normally be given.  We are satisfied in the present case that the judge was over-generous in the discount she allowed each applicant for his plea of guilty.

14. In the circumstances we did not consider the totality of the sentences imposed on either applicant to be manifestly excessive and for these reasons their applications were dismissed.