HKSAR v. LEUNG KAI WING

CACC 229/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 229 OF 2016

(ON APPEAL FROM HCCC 42 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1. The applicant seeks leave to appeal against his sentence of 7 years and 4 months’ imprisonment imposed on 13 July 2016, after he pleaded guilty before Yau J (the “judge”) on 4 December 2015 to a count of trafficking in a dangerous drug, namely 80.50 grammes of a crystalline solid containing 77.30 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. At the hearing of his application we granted it and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal.  We set aside the sentence of the judge and in its place we sentenced the applicant to 6 years 7 months’ imprisonment and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The background to the offence

3. On 17 August 2014, at around 3 am, police located a van parked outside 320 Pak Sha Tsuen, Kung Um Road, Yuen Long, during an anti-drug operation.  They had earlier received information about this van which bore the registration number SD211. The applicant was found in the driver’s seat talking on a mobile phone.  The van then drove off and returned about 13 minutes later and parked in the same place. 

4. A police officer, PC9203, then went up to the van, showing his warrant card and revealing his identity.  The applicant was told that he was suspected of possessing dangerous drugs and was searched.  The applicant was holding a brown envelope behind his back.  When this was searched the police officer found within it three plastic bags which, the Government Chemist later confirmed, contained a total of 77.30 grammes of methamphetamine hydrochloride (“Ice”).

5. The applicant was arrested and cautioned for the offence of trafficking in a dangerous drug.  In response he said:

“Ah sir, I have been out of work lately. With a daughter to rear, I made some money by reselling the ‘Ice’ to others. Give me a chance. Most of it was for my own consumption. Only when someone asked for it would I sell it.”

6. In addition to the Ice the applicant was in possession of a mobile phone and HK$3,390.  The estimated street value of the total mixture of dangerous drugs seized was HK$34,293.

7. A search of the applicant’s residence found no drug paraphernalia. 

The mitigation

8. Mr Jeremy Cheung, acting for the applicant at his sentencing hearing and also on this application for leave to appeal, informed the judge that the applicant was remorseful and that the offence stemmed from his drug addiction.  The applicant was 34 years of age and was married with three stepchildren.  He continued to have the support of his family and friends and wished to return to his family as soon as possible.  Mr Cheung submitted to the judge a number of letters written by the applicant himself, and his wife, family and friends. 

9. The applicant had five prior convictions, two of which were for possession of a dangerous drug and one of which was for trafficking in a dangerous drug for which, in 2010, he was sentenced to 30 months’ imprisonment. 

10. Mr Cheung relied on three main matters in his address in mitigation.  They were:

(i)  the applicant’s plea of guilty;

(ii)  a claim by the applicant that part of the drugs were for his own consumption; and

(iii)   an offer by the applicant to assist the authorities in the prosecution of his supplier.

11. In respect of the submission that the applicant was entitled to a further discount for his claim that part of the drugs were for his own consumption, the judge expressed skepticism that the facts justified a finding that a “significant proportion” of the drugs were for his consumption.

12. At the conclusion of the interchange between bar and bench the following exchange took place:

“Court: Now, the court will say that having heard all of this, the court, it is prepared to accept that a small amount of the drugs were for his own consumption.

Mr Cheung:  In that case, that suffices as for my mitigating purposes, my Lord.”

13. In respect of the offer of assistance, the applicant, after his plea of guilty, provided a statement to the police.  Sentencing of the applicant was adjourned for the authorities to investigate the information provided by the applicant.  The assistance led to the applicant’s supplier being prosecuted but, as it could not be said when the court proceeding relating to this defendant was likely to conclude, it was decided to proceed with the sentencing of the applicant.  He could then appeal to this court for any reduction in sentence to which he might be entitled as a result of the assistance he had already provided to the police and any further assistance he might be called upon to provide at the trial of his supplier.  The applicant’s sentencing hearing concluded on 13 July 2016. 

The judge’s Reasons for Sentence

14. In sentencing, the judge noted the applicant’s background and the matters put in mitigation.  In considering the submission that a small part of the drugs was for self-consumption, the judge noted that the cases of HKSAR v Wong Suet Hau & Anor[1] and HKSAR v Tam Ling Yuen[2] held that self‑consumption was only relevant when a significant proportion of the drugs was for self-consumption.  This led the judge to comment:

“As such, self-consumption of a small part of the dangerous drugs in the present case does not constitute an issue relevant to sentence. It only has a very limited, if any, value in terms of mitigation.”

15. Taking into account the guidelines set out in of HKSAR v Tam Yi Chun[3], the judge noted that an arithmetic starting point would be a bit more than 11 years 1 month’s imprisonment.  However, having regard to all of the circumstances the judge said he would adopt a starting point of 11 years’ imprisonment.  Providing a full one-third discount for his guilty plea, the applicant was sentenced to a final term of 7 years and 4 months’ imprisonment.

The Perfected Grounds of Appeal

16. The Perfected Grounds of Appeal put forward two grounds of appeal against sentence.  The first is that the judge erred in not giving sufficient discount to reflect the amount of dangerous drugs the applicant claimed he used for his own consumption.  The second is that the judge did not deal with the assistance which the applicant provided to the police. 

17. At the hearing of the application Mr Cheung informed the court that he was not pursuing his first ground of appeal.

18. In respect of the second ground of appeal the applicant filed a Notice of Motion seeking leave to adduce fresh evidence on appeal pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.  The fresh evidence was the Summary of Facts used in HCCC 25/2017 for the sentencing of the applicant’s supplier, Mr Wong Chi Pan, Joe when this person pleaded guilty to trafficking in dangerous drugs, being the Ice that he supplied to the applicant and which is the subject of the applicant’s own count in the present proceedings. 

19. The Summary of Facts revealed how the drug transaction that led to the applicant’s arrest for the present charge, took place.  It also stated that the applicant’s wife, Madam Chan, suspected that it was Mr Wong who furnished information to the police leading to her husband’s arrest.  Therefore, she questioned Mr Wong on the mobile messaging service WeChat.  Mr Wong had also written to the applicant at Lai Chi Kok Reception Centre.  As a result of the information provided by the applicant, Mr Wong was interviewed by the police on 3 March and 6 June 2016. Eventually, Mr Wong admitted to supplying the Ice to the applicant.

20. Mr Cheung relied on the cases of HKSAR v Herrera Jhorman[4] and HKSAR v Chui Tak Man[5] to submit that since it was the provision of information by the applicant that had led to the arrest of Mr Wong, that alone entitled him to a discount greater than 40%.  Furthermore, according to Mr Cheung, the applicant “caused his wife to confront Wong Chi Pan Joe so as to provide more useful information for the police to build their case against Wong Chi Pan Joe.”  Although Mr Cheung accepted that the applicant did not actually give evidence at trial, it was submitted that the applicant had been prepared to give such evidence.  For all these reasons, Mr Cheung submitted the applicant was entitled to a discount of 50%. 

The respondent’s submissions

21. Mr Matthew Leung, Senior Public Prosecutor, on behalf of the respondent, accepted that the Court should afford the applicant a discount, and raised no objection to the application to adduce new evidence, namely the Summary of Facts in HCCC 25/2017.  Mr Leung relied on the cases of HKSAR v Herrera Jhorman[6] and HKSAR v Yau Kwok Yin[7] to submit that where the applicant provided a statement to authorities and had been willing to give evidence, but was ultimately not required to do so because of a guilty plea, discounts of slightly more than 40% and 45% respectively were provided.  Since there was no suggestion that the applicant had exposed himself to a risk of harm, the respondent submitted that the applicant should be entitled to a discount of 40–45% from the starting point.

Discussion

22. Even though Mr Cheung did not pursue his first ground of appeal we wish to take the opportunity to make some comments on the issue of self-consumption. When the issue of self-consumption is raised as a mitigating factor it is for the judge to assess whether the claim is credible and whether or not he is willing to accept it without evidence being called in support of it.  The judge is in charge of the sentencing process and he decides what he accepts and what he does not accept in respect of the matters advanced in mitigation.

23. In the present case the judge, very properly, indicated to Mr Cheung that he did not accept from the bar table the assertion that a significant proportion of the drugs were for the applicant’s own consumption. 

24. It was only after further exchanges with Mr Cheung was the judge “prepared to accept that a small amount of the drugs were for his own consumption.”  To this Mr Cheung replied that this would suffice for the purpose of his client’s mitigation. 

25. Where, as in the present case, the judge makes clear that, without a Newton hearing, he is not willing to accept anything other than that only an unquantifiable small amount of the drugs were for the applicant’s only consumption, defence counsel is left with the stark choice of calling his client to make good his claim or accepting the concession the judge has offered him.  Once he chooses the latter course he has to live with the consequence of not having passed the Wong Suet Hau threshold of a “significant proportion” of the drugs being used by the defendant for his own consumption.  One of those consequences is that he forgoes the chance of obtaining for his client a discount within the range laid down in HKSAR v Chow Chun Sang[8]. For it is not the case that where any part of the drugs possessed by a trafficker are for his own consumption then he is entitled to a discount of his sentence.  As the authorities make clear it has to be a “significant proportion” in order for the trafficker to satisfy the Wong Suet Hau threshold and bring himself within the 10-25% discount range laid down in Chow Chun Sang.

26. If a defendant cannot show that a significant proportion of the drugs were for his own consumption but the judge is willing to accept that an unquantifiable amount less than a significant proportion were for his own consumption, then that fact forms part of the background circumstances that a judge can take into account when determining his starting point.  Whether this fact, together with the other facts and mitigating circumstances persuade a judge to depart from an arithmetically determined starting point will be a matter of sentencing discretion.  Unlike the position of a defendant who can show that a significant proportion of drugs were for his own consumption, when a defendant can merely show a less than significant proportion, he does not have a separate free-standing entitlement to a discount additional to that which he receives for his plea of guilty. 

27. In respect of the second ground of appeal we were satisfied that it was in the interests of justice to receive the additional evidence and so we granted leave to the applicant to adduce it.

28. It is not disputed that the applicant is entitled to a discount beyond the one-third for his plea of guilty for his post-conviction assistance to the police.  The claim is based only upon the assistance rendered, not on a claim that by rendering the assistance he did, the applicant exposed himself or those close to him to the risk of harm.

29. Providing a witness statement and undertaking to be a prosecution witness entitles him to a 40% discount.  The only issue is whether he should be given a discount greater than 40%.  It is rare for a defendant who does not testify to be given a discount as much as 50%.  It did happen in HKSAR v Tso Kin Hong & Anor[9] but in that case the Court of Appeal drew a line at 50%, perhaps conscious of the fact that a person who testifies will normally receive only a 50% discount.  A defendant who is not in the category of a “supergrass” will receive more than 50% for giving evidence if his assistance puts him “into a category beyond the normal case of assistance leading to arrest and giving evidence.”[10] 

30. Whether a defendant should receive more than 40% will always be a fact sensitive matter that will depend upon a range of matters.  In this respect the comments of Li CJ in Z v HKSAR[11] are worth repeating.  In a judgment with which the other members of the court agreed, Li CJ said at page 190J-191C, paragraph 13:

“13. In deciding whether the assistance given by the defendant to the authorities merits a discount in a particular case and if so, its extent, a number of factors should be taken into account. Broadly speaking, the most important factors usually include:

(a) The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

(b)  The likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody, and danger to himself and his family after his release from prison.”

31. As Li CJ makes clear, these factors are relevant to both issues of whether a defendant “merits a discount in a particular case and if so, its extent”.  On the extent of the reduction that a defendant should receive Li CJ said at page 194E-H, paragraph 23:

“23. The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at p 340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat Fan (unrep., CACC 414 of 1999, [2001] HKEC 662). Where the level of co-operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two-thirds has been used. R v Chan Fu Kui [1986] HKLR 967 at p 968, HKSAR v Ng Shek Yu (at p 3).”

32. In the absence of consequences to a defendant of the kind mentioned by Li CJ in paragraph 13(b) of his judgment in Z v HKSAR the question of whether a defendant is entitled to more than a 40% discount falls to be determined by reference to the matters listed by him in paragraph 13(a) of his judgment and such other matters that the Court of Appeal may expound in its judgments on this issue. 

33. However, because the amount of the discount is such a fact sensitive matter, other decisions by the Court of Appeal on this matter may not always be helpful.  The cases of HKSAR v Herrera Jhorman and HKSAR v Chui Tak Man,on which Mr Cheung relies, contain useful summaries of the existing case law and illustrative value in the application of that case law.  But they contain nothing new in terms of legal principle and nothing said in those two judgments is of any assistance to the applicant in claiming an entitlement to more than a 40% discount. 

34. In the present case Mr Cheung was not able to point to any matter that afforded a reason for extending to the applicant a discount greater than 40%.  The applicant’s assistance was the usual form of providing a statement and undertaking to be a prosecution witness.  The fact that his statement was the reason why the prosecution was initiated and the reason why Mr Wong pleaded guilty do not, on their own, take the discount beyond 40%.

Conclusion

35. For these reasons we granted the application and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal.  We set aside the sentence of the judge and in its place we sentenced the applicant to 6 years 7 months’ imprisonment.

[1]  [2002] 1 HKLRD 69

[2]  CACC 159/2015, unreported, 11 March 2016.

[3]  [2014] 3 HKLRD 691

[4]  [2013] 1 HKC 119

[5]  [2014] 4 HKLRD 663

[6]  [2013] 1 HKC 119

[7]  CACC 69/2016, unreported, 30 August 2016.

[8]  [2012] 2 HKLRD 1121

[9]  [2008] 1 HKC 84

[10]  Per Stock JA (as he then was) in HKSAR v W [2004] 3 HKC 376 at 383E and followed in HKSAR v Choi Wing Kuen [2008] 1 HKC 519 at 524G.

[11]  (2007) 10 HKCFAR 183