HKSAR v. WONG KEAT JEANG

CACC 80/2020

[2021] HKCA 1282

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)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court):

A. Introduction

1.  The appellant was charged with one count of trafficking in a dangerous drug, namely 1,403 grammes of a mixture containing 1,140 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was committed to the Court of First Instance for plea and sentence before Barnes J (“the judge”) on 26 May 2020. He was sentenced to 16 years and 6 months’ imprisonment on 29 May 2020.  At a hearing on 5 May 2021, the appellant was granted leave to appeal against his sentence^[1].  The appellant is represented by Mr H.Y. Wong, who appears in this appeal but not the proceedings below.

2.  At the hearing of his appeal we dismiss it.  Now we give our reasons.

B.  The facts[2]

3.  The appellant, a Malaysian male, was selected for customs clearance at the Arrival Hall of Hong Kong Macau Ferry Terminal at around 1350 hours on 28 April 2019.  Four plastic packets which contained 1,403 grammes of a mixture containing 1,140 grammes of heroin hydrochloride with an estimated street value of HK$1,001,742 were found in his backpack.  The appellant was also in possession of one mobile telephone and multiple currencies in small amounts.

4.  When he was arrested and cautioned, he stated that the four packets contained medicines which he had purchased online in Malaysia for relaxing purpose.  He would hand them to someone after receiving a telephone call in Hong Kong and would receive Malaysian Ringgit 10,000 as a reward.

5.  The appellant agreed to participate in a controlled delivery operation at a hotel room which was reserved by the appellant through a travel agency from 28 April 2019 to 29 April 2019. The operation commenced at about 1755 hours on 28 April 2019 and continued through to 1425 hours when the Customs officers decided to call off the operation.

6.  In a subsequent video recorded interview (“VRI”) the appellant refused to speak further of his offence apart from expressing his wish for a lenient sentence for the assistance he had rendered to the authorities.

7.  An examination of the appellant’s mobile telephone revealed a photograph depicting a packet of white powder purported to have been taken at about 1134 hours on 28 April 2019 in the telephone camera storage folder.  Immigration travel record showed that the appellant entered Hong Kong at 1348 hours on 28 April 2019, via Hong Kong Macau Ferry Terminal.

C.  Mitigations[3]

8.  The appellant was 26 years old and of a clear record.  He was a part-time salesman in Malaysia earning about Malaysian ringgit 2,000 per month prior to his arrest.   It was submitted that by actively following instructions to communicate with the recipient with a view to persuade him to collect the drugs in a controlled delivery operation lasting nearly 24 hours, he should be entitled to 40% discount for his participation: HKSAR v Lo Sze Tung Stephanie^[4].

D.  The judge’s Reasons for Sentence[5]

9.  The judge adopted a starting point of 22 years and 9 months’ imprisonment, which he enhanced by 2 years for the international element.  In declining to give any discount further than one-third for the appellant’s plea, the judge noted the following:

(i)    with an unsuccessful attempt of a controlled delivery operation, a 40% discount “should be seen as a high water mark”;

(ii)   the operation was called to an end after the recipient agreed to the appellant’s suggestion to hand over the drugs in Macau^[6];

(iii)  the appellant did not volunteer to the Customs officers the name and contact of Jan Deler (“JD”), the person to whom he communicated during the operation, although he had such information stored in his mobile telephone; and

(iv)  no further assistance or explanation was given during the VRI after the controlled delivery operation failed.

10.  The judge found:

“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.”[7]

E.  The ground of appeal and submission

11.  The only ground of appeal raised by Mr Wong, counsel for the appellant, is that the judge erred in declining to give any further discount for the appellant’s assistance in the controlled delivery operation especially when it was commented by the Inspector in charge of the operation that the appellant was being cooperative throughout.

12.  Mr Wong highlights the fact that the controlled delivery operation had lasted for more than 20 hours under close supervision of the Customs officers.  The appellant was given a free hand to decide what to say to the recipient.  He made numerous efforts to indicate to JD to schedule a handover of the drugs on that day but JD either did not answer the call or kept rescheduling.  Mr Wong complains that the judge wrongly placed emphasis on the appellant’s suggestion to bring the drugs back to Macau or Malaysia and failed to place sufficient weight on the efforts he made in the protracted operation.  Further, Mr Wong submits that the appellant could have been bluffing when the attempts to ask to hand over the drugs came to nothing and the appellant did not know this would backfire.  In any event, he did try to salvage the situation by making a further attempt to ask to hand over the drugs in Hong Kong by saying that he had run out of money to travel back to Macau.  This suggestion should not be construed as any attempts on his part to foil the controlled delivery.

13.  Mr Wong further contends that the judge was wrong to place weight on the fact that the appellant failed to disclose the details of JD to Customs officers.  Since JD’s telephone number was a Malaysian number, JD might not be the person who would physically turn up to collect the drugs.  Therefore, it is submitted that the appellant was not hiding that information from Customs officers when all he was asked was “hand over to who”.  Further, no more assistance could have been offered by the appellant after the controlled delivery operation failed.  Therefore, it is submitted that the judge was wrong in placing weight on these matters which should have been resolved in favour of the appellant, and instead using them as matters which prevented her from exercising her discretion.   Albeit that the appellant’s assistance was limited and unfruitful; nevertheless, it was a lengthy and protracted operation and he should still be afforded discount beyond the one-third for his guilty plea in accordance with Lo Sze Tung Stephanie.

F.  The respondent’s submission

14.  Ms Sheroy Tam, for the respondent, emphasized that a defendant’s assistance to the authorities falls to be assessed by the sentencing court: see Lo Sze Tung Stephanie.  The factors to be considered will necessarily vary according to the particular circumstances of each case: see HKSAR v Chan Ka Yiu & Others^[8]. Ms Tam argues that the judge was correct to find that the appellant’s suggestion to hand over the drugs in Macau contributed to the failure of the operation.   Apart from the lack of explanation as to why he should make such a suggestion, the appellant also failed to provide details of the contact person which he already possessed when he was apprehended.   No information was provided in the VRI.  We were taken to one of the communications between the appellant and JD in two Malay characters.   The judge was entitled to take into account all these matters in assessing the appellant’s participation in the controlled delivery operation and in coming to the view as she did.  The final sentence was appropriate and the appeal should be dismissed.

G.  Discussion

15.  No issue is taken as to the notional starting point of 22 years and 9 months’ imprisonment adopted by the judge or the 2 years’ enhancement for the international element.   The sole issue on appeal is whether the appellant, by his participation in the controlled delivery operation, should be given a further discount beyond the one-third.

16.  In HKSAR v Nkwo Nnaemeka Darlington^[9] this Court said:

“33. …neither a straitjacket approach nor the application of a percentage discount range is desirable, because the factors to which a sentencing judge should have regard will necessarily vary according to the unique circumstances of different cases. Such factors would include: (i) the nature and effect of any voluntary participation; (ii) the outcome of the assistance: was it successful in bringing to justice persons who would not otherwise have been brought to justice?; (iii) the degree or extent of assistance which had been provided; and (iv) the degree of risk to which the defendant had exposed himself or his family. It is a matter within the discretion of judges how these, and other possible, factors affect the discount to be accorded a defendant in a particular case. Accordingly, we do not accede to the invitation to lay down guidelines for such assistance.

…

35.  As we say, every case is different and we do not accept that there can be a fixed percentage discount applied to all, or even similar, cases. …”

17.  In Lo Sze Tung Stephanie, the Court said:

“The 33.3.% - 40% discount range

48. This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities, his assistance has been helpful but, for one reason or another, it is not assessed to be of particularly great value. One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery.

49. This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding that the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”

18.  To assess the nature and extent of the appellant’s assistance, the judge adjourned the hearing in order to receive the statement of the officer who witnessed the controlled delivery operation^[10] and the statement of an Inspector.   The Inspector, in his statement, confirmed that he had instructed his team to:

“…let [the appellant] decided (sic)the way and used (sic)his own words when communicating with the drugs recipient. Therefore, under the supervision of Customs Officers, [the appellant] made up his own reasons and used his own words to persuade the drugs recipient to collect the drugs”.[11]

19.  The officer’s statement recorded that between 1755 hrson 28 April 2019 and 1425 hrs on 29 April 2019, numerous attempts were made to contact the recipient, some of them successful and some not.  The one call which caused the judge concern was this:

“[43] At around 1313 hrs on 29 April 2019, AP notified Jan Deler via whatsapp recording that if there was no one to come over for handover (then he) would bring the goods back to Macau or Malaysia.”[12]

20.  The judge asked to be addressed on why the appellant should suggest that he would bring the drugs back to Macau or Malaysia.   At first, counsel told the judge that it was on the instructions of the Customs officers[13]. The judge raised the issue of whether a Newton hearing was required as this contradicted the statement of the Inspector.   She warned that should findings be made against the appellant after the Newton hearing he might not even be able to get the one-third discount[14]. She further elaborated her concern:

“… When I assess somebody’s assistance, I want to know exactly what he had done. … Frankly, I cannot believe a customs officer, operating in Hong Kong, would instruct someone to say, “Tell him to bring it to Macau”. How on earth are you going to have controlled delivery in Macau? It does no (sic), even make sense…”[15]

…

“And I’m also concerned about the fact that after he, according to the officers, told the other side by the recorded stage that he will bring it to Macau or Malaysia and then the other side immediately said, “All right. I will arrange it to -- for handover in Macau.” And then of course that become impossible. So the operation was called off. It’s unsuccessful.”[16]

21.  The matter was stood down for counsel to take instructions.  When the court resumed, the judge was told that no Newton hearing was required.

22.  The appellant was found to have brought the drugs from Macau into Hong Kong and intercepted by Customs officers.  The controlled delivery operation took place in a pre-arranged hotel room where the drugs would be collected[17]. The aim of the operation was obviously for the appellant to persuade whoever was to collect the drugs to go to the hotel room.   If the drugs were to be handed over in Macau where he had just come from, or Malaysia, the operation would be doomed to failure.  That was precisely the reasons why Customs officers decided to call off the operation^[18]:

“Considering the drugs recipient requested the drug transaction to be held in Macau which the possibility of apprehending the drugs recipient was remote, the [controlled delivery operation] was called off at about 1425 hours on 29.04.2019.”

23.  Although the judge did not go so far as to find that that message was “tipping (off) the other side”[19], we share her view that this suggestion by the appellant was dubious, especially in view of the fact that in the evening of his arrest the appellant and JD used two characters in Malay during their call.[20]

24.  Whilst Mr Wong submits that the suggestion by the appellant was quite plainly a bluff trying to entice and pressurize the recipient to go and collect the drugs, there was no evidence to that effect. The judge made it clear that the interpretation did not just go one way.   She would not accept a benign interpretation without evidence from the appellant. It was the choice of the appellant not to avail himself of that opportunity.   Taking the details of the operation as a whole, we have come to the view that even if the appellant had not caused the operation to end he certainly contributed to its being aborted and the judge rightly took that into account.

25.  Mr Wong submits that it was because of the way that the Customs officers phrased their question “hand over to whom” that the appellant said he did not know as he had to wait for a telephone call from the other party.  Therefore, it is submitted, that the judge was wrong to find that the appellant “did not tell the officer that that person was someone whose name and telephone number were stored on his mobile telephone.”[21]

26.  However, we note that this conversation between the appellant and the Customs officer took place almost immediately after he was reminded of his willingness to participate in a controlled delivery operation.  He did tell the Customs officer that the handover would be at the Ind Hotel in Kwun Tong.  It was only one minute later that JD messaged the appellant asking to be sent the hotel room number.[22]

27.  Not only did the appellant fail to disclose details of JD before the start of the controlled delivery operation, he also failed to provide any details at any time during the operation or after he received a call in Hong Kong, as the judge observed[23], or subsequently in his VRI.   When asked by the judge, he declined to provide any explanation as to why he did not tell the Customs officers that he would be contacted by this person in the first place.   He had, through his counsel and by himself, indicated that he had nothing else to add.  Whilst Mr Wong argues that the telephone number of JD was a Malaysian number, he agrees that that does not necessarily mean that the caller of that number must be physically in Malaysia.

28.  Any further discount for assisting the authorities in the controlled delivery is a matter within the discretion of the judge after taking into account the various factors in assessing the assistance provided.  Whether there had been full and frank disclosure is one important factor:  see Z v HKSAR[24].  Evidence suggesting fault for the ultimately unsuccessful controlled delivery operation lay at the door of the appellant is another: see HKSAR v Jardin Rodela Maningas[25], HKSAR v Smit Hector Edward[26].  We need to be persuaded that the exercise of the discretion miscarried, and not that we would have decided the matter differently.

29.  The fact that the appellant had to appear with his passport in some of the video calls to convince the recipient to collect the drugs, were the usual things that an arrested person taking part in a controlled delivery operation would be expected to do.   Although the present operation was a protracted one, the judge rightly pointed out that all the circumstances have to be looked at in their entirety to assess whether the appellant’s participation was genuine and whether he had done his best to assist the authorities[27] in order to earn additional discount.  We are not persuaded that the judge erred in her refusal to exercise her discretion to afford the appellant additional discount.

[1] [2021] HKCA 674, per Macrae VP (Date of reasons for judgment: 5 May 2021).

[2] Appeal Bundle, pages 3 – 4. 

[3] Appeal Bundle, pages 5 – 12

[4] [2019] 1 HKC 309

[5] Appeal Bundle, pages 13 – 16

[6] AB 15Q – T

[7]AB 15Q – S

[8] [2018] 4 HKC 591

[9] [2016] 1 HKLRD 692

[10] MFI – 2 – JCR, at AB 29 – 49

[11]MFI – 2 – JCR, at AB 55

[12] AB 41 [43]

[13] AB 59T – U

[14] AB 60I – K

[15] AB 61B – E

[16]AB 61L – N

[17] AB 33 [6]:  JD asked the appellant to send him hotel room number.

[18] MFI – 2 – JCR, at AB 55

[19] AB 65Q – S

[20] AB 38 [27]

[21] AB 16H – I

[22] AB 32[4] to 33[6]

[23] AB 60S – T

[24] (2007) 10 HKCFAR 183

[25] CACC 278/2011, unreported, 29 May 2016

[26] [2017] 1 HKLRD 287

[27] Lo Sze Tung Stephanie, at §13