HKSAR v. CHUNG YAT HO

CACC367/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2010

(ON APPEAL FROM HCCC NOS. 10 & 36 OF 2010)

BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 28 September 2010, the applicant pleaded guilty in the court of first instance before Mr Justice McMahon to two charges; first, to a charge of conspiracy to traffic in a dangerous drug and, second, to a charge of possession of a dangerous drug.

2.  The first charge, that of conspiracy, alleged that the applicant had conspired together with two others to traffic in the dangerous drug, ketamine.  The applicant’s co-conspirators, the first and second defendants at trial, also pleaded guilty to that charge.

3.  The applicant was sentenced to 8 years and 8 months’ imprisonment in respect of the conspiracy charge and to 6 months’ imprisonment in respect of the charge of possession, the two sentences to be served concurrently.

4.  The applicant sought leave to appeal the sentence imposed on him for the offence of conspiracy to traffic in a dangerous drug.  He did so on the basis that the sentence was wrong in principle and/or manifestly excessive.  Having heard submissions, we refused leave, saying that we would give our reasons later.  We do so now.

Background

5.  On 3 September 2009, police saw two men, both driving light goods vehicles, park their vehicles close to each other.  They saw the two men get out of their vehicles and talk to each other.  Dangerous drugs were found inside both vehicles.  The drugs were contained in packets, each packet containing approximately 10 g of a powder containing ketamine.  In the one vehicle, nine packets were found.  In the second vehicle, 11 packets were found.  The total seizure from the two vehicles consisted of 271.23 g of a powder containing 228.59 g of ketamine.

6.  Under caution, the drivers of the two vehicles admitted that they had been recruited by the applicant to distribute ketamine.  They said that they had agreed to do so on a day-to-day basis subject to his instructions.

7.  There was evidence that the two drivers had been supplied with a similar amount of ketamine on the day before their arrest, distributing most but not all of their stock.

8.  In the result, the two men (the first and second defendants at trial) together with the applicant (the third defendant at trial), were jointly charged with the offence of conspiracy to traffic in a dangerous drug, the particulars of the offence being that between about 25 August to 3 September 2009 they had conspired together to traffic in ketamine.

9.  As to the nature of the conspiracy, Mr Justice McMahon said the following when passing sentence:

“The facts of the conspiracy offence are as follows. The 1^st and 2^nd defendants were recruited by the 3^rd defendant to distribute ketamine on his behalf. They did this by collecting a stock of ketamine from the 3^rd defendant and then driving with it in vans provided, in the case of the 1^st defendant, by the 3^rd defendant, to locations as directed by him.

Each of the 1^st, 2^nd and 3^rd defendants knew of the role of the other. The 2^nd defendant collected, at least on [one] occasion, the drugs from the 3^rd defendant, and then, on the 3^rd defendant’s instructions, provided half to the 1^st defendant.

Once having been placed in possession of the drugs, both the 1^st and 2^nd defendants would await the 3^rd defendant’s telephone call as to where and to whom to deliver the drugs.  The precise method of receiving payment for the drugs from the persons to whom they were delivered varied, but the 1^st and 2^nd defendants were paid, I accept, on a per delivery basis.”

10.  The judge continued:

“… this was not a particularly sophisticated conspiracy, but it was indefinite and designed to supply drugs to others who in turn, given the quantities of 10 grammes per packet, it seems likely also trafficked in them.

The 3^rd defendant was obviously the person in control of and directing the operation.  Both the 1^st and 2^nd defendants I therefore accept to have operated under the directions of the 3^rd defendant.”

11.  In assessing appropriate sentences for the first and second defendants, the judge found that their roles had been indistinguishable.  In respect of each he took as his starting point a sentence of 10 years’ imprisonment.  This he reduced by 45% to take account of two matters, first, their pleas of guilty and, second, their willingness to give evidence against the third defendant, the applicant.  In the result, the first and second defendants were each sentenced to five years and six months’ imprisonment.

12.  In assessing sentence for the applicant, the judge took as his starting point a sentence of 13 years’ imprisonment.  He reduced this by one-third in recognition of the applicant’s plea of guilty, the resulting sentence being one of eight years and eight months’ imprisonment.

 The grounds of appeal

13.  On behalf of the applicant, Mr McGowan submitted two grounds of appeal.  It was his first submission that, even though the applicant had pleaded guilty to a charge of conspiracy, the judge had fallen into error by taking as his starting point a sentence greater than that which, if the offence had been one of trafficking only, would have been based on the total weight of the narcotic found by the police in the two vehicles.  It was his second submission that in any event the judge, in assessing sentence, had taken too high a starting point.

14.  This Court, in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, set guidelines for the sentencing after trial of persons found guilty of trafficking in ketamine.  It held that, if the amount of narcotic, the subject of the trafficking, was between 50 to 300 g, a sentence of between 6 to 9 years’ imprisonment would be appropriate.  If the amount of narcotic was between 300 to 600 g, a sentence of between 9 to 12 years’ imprisonment would be appropriate.

15.  In the present case, the amount of narcotic found in the two vehicles was 228.59 g.  On that basis, if the charge had been one of trafficking only, a starting point of around eight years’ imprisonment would have been appropriate. It was Mr McGowan’s first submission that this should have been the starting point adopted by the judge in assessing an appropriate sentence for the applicant.

16.  Mr McGowan advanced the submission that there was nothing in the nature of this conspiracy, one which had only been running for a few days, which warranted sentences in excess of the guidelines set down in Hii Siew Cheng.  He suggested that there was certainly no basis for assessing a sentence on what the parties may or may not have done in the future if they had not been arrested.  Such an approach, Mr McGowan submitted, was “speculative”.

17.  As it was, in respect of the applicant, the judge took as his starting point a term of 13 years’ imprisonment.  This starting point, Mr McGowan suggested, was unrestrained by any reference to the sentencing guidelines in Hii Siew Cheng and was in any event manifestly excessive.

Discussion

18.  In our view, there was no merit whatsoever in Mr McGowan’s first submission that, even though the applicant had pleaded guilty to a charge of conspiracy to traffic in a dangerous drug, he should nevertheless have been sentenced in compliance with the guidelines set down in Hii Siew Cheng as if he had been charged with, and pleaded guilty to, a charge of trafficking in the specific amount of drugs discovered in the two vehicles.

19.  This was manifestly an appropriate case in which to charge conspiracy to traffic in a dangerous drug.  Agreement is the essence of conspiracy and correctly the judge, a most experienced judge in criminal matters, looked to the culpability of the applicant reflected by the nature of the agreement and the actions carried out in pursuance of that agreement.  It was his finding that the agreement went beyond that of a one-off trafficking operation to distribute a specific quantity of ketamine on a specific date.  As the judge observed, the agreement was to set up a distributing network, supplying ketamine to others who, having regard to the fact that the narcotic was supplied in 10 g packets, were themselves likely to deal in the drug.

20.  The object of the conspiracy, the subject of the agreement between the parties, was to operate the network on an indefinite basis.  The conspiracy was therefore an open-ended one which would have continued but for the intervention of the police.  It may not have been a sophisticated criminal scheme but there was nothing to suggest that, for that reason, it was potentially any the less effective.

21.  In considering the overt acts carried out in pursuance of the conspiracy, the judge took into account, as he was entitled, the fact that on the day before their arrest the first and second defendants, acting under the instructions of the applicant, had taken into their possession a stock of ketamine and had distributed a portion of that stock, if not all of it.

22.  As to the role of the applicant in the conspiracy, the judge observed that he had recruited the first and second defendants and that it was agreed that they would act under his instructions.  Whether he was part of a supply chain or not, in respect of the conspiracy charged, the applicant was therefore the one in control, the one who brought in the first and second defendants to the scheme of criminal conduct and then directed the manner in which they carried out that scheme.

23.  In the present case, the criminal agreement reached beyond the single instance of trafficking discovered by the police.  The culpability of the parties to that agreement was therefore that much greater, a fact which the judge correctly took into account.

24.  As to the starting point chosen by the judge in assessing the applicant’s sentence, there is nothing to suggest that the judge determined that starting point in ignorance of the sentencing guidelines set down in Hii Siew Cheng or in disregard of them.  In respect of the first and second defendants, the two rank and file members of the conspiracy, bearing in mind the level of their culpability the judge chose as his starting point a term of 10 years’ imprisonment, well within the contemplation of the sentencing guidelines.  In respect of the applicant, on his own admission the ringleader of the conspiracy, the starting point was equally within the contemplation of the guidelines.

25.  In our judgment, having regard to the nature of the conspiracy, the starting point chosen in respect of the applicant was not in any way excessive.  It appropriately reflected the culpability of the applicant in respect of the offence to which he had pleaded guilty.