HKSAR v. COX ELDON PAUL

CACC 211/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 211 OF 2000

(ON APPEAL FROM HCCC NO. 314 OF 1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. The applicant pleaded guilty before Deputy Judge Z E Li in the Court of First Instance to a charge of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap.134. He was sentenced to imprisonment for 6 years and 8 months against which he now applies for leave to appeal.

2. The particulars of offence contain in the indictment stated:

"Cox Eldon Paul on the 14 day of June 1999, in the junction of Argyle Street and Portland Street Mongkok Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug namely 114.48 grammes of a crystalline solid containing 95.59 grammes of methamphetamine hydrochloride."

3. The facts in this case are perfectly simple and straightforward.

4. On 14 June 1999, acting on information, the police mounted an anti-narcotics operation in Mongkok area. Officers from the Regional Special Duties Squad 1 Kowloon West were tasked to perform patrol duties in plainclothes in the area starting from about 2045 hours on that day. Detective Police Constable 47399 (DPC 47399) and Detective Police Constable 50492 (DPC 50492) were teamed up to conduct observation in the vicinity of Argyle Street and Portland Street. Other police officers were deployed nearby.

5. At about 2203 hours on 14 June 1999, DPC 47399 saw the applicant appearing in Argyle Street near Portland Street. The applicant looked around frequently and at that point of time DPC 47399 and DPC 50492 went to intercept him. After revealing his police identity to the applicant, DPC 47399 requested to search the applicant.

6. During the search, DPC 47399 found something bulging out from the abdomen of the applicant. The officer zipped open the trousers of the applicant and found one white envelope tucked inside the underpants which the applicant was wearing at that time. When DPC 47399 tried to open the white envelope for examination, he noticed the applicant moving a little away and sweating. Inside the white envelope, DPC 47399 saw one transparent resealable plastic bag. In the bag, some white substance suspected to be a dangerous drug commonly known as "ice" was found.

7. As a result, DPC 47399 arrested the applicant for "Trafficking in Dangerous Drug". He was later taken back to Mongkok Police Station.

8. The suspected dangerous drug was later examined by a Government Chemist and found to be 114.48 grammes of a crystalline solid containing 95.59 grammes of what is known as "ice".

9. In mitigation, Mr McGuinnity, who appeared for the applicant below, made a strong and compassionate plea to the judge for leniency.

10. First he referred to the starting point laid down in Attorney General and Ching Kwok-hung (1991) 2HKLR 125 and the one third discount for plea to which the applicant was entitled. He then went on at p.16Q to p.17J, and said:

"With, however, my Lord, the other mitigation which surely exists in this case - and by that I mean and refer to the defendant's all but clear record, the fact that there is clearly a substantial element of entrapment - the police were clearly informed about this operation, his psychiatric background mirrored by what was said in the priest's letter and the background probation officer's report, it would not be wrong - indeed it would be just to further substantially reduce this defendant's sentence in the range of further one-third discount.

My Lord, without repeating myself or starting to go round in circles, I urge this court to be lenient. It can be lenient; it is not unfettered. Your decision this morning is, of course, bound to some extent by Ching Kwok Hung, I accept that. But clearly he is entitled to a third discount, and clearly far and beyond the usual set of circumstances of his father was sick, he was trying to get money for the family, or all the other hundred and one different reasons which are given to counsel to advance on the defendant's behalf.

You've got a person who has a disturbed psychiatric background, who meets up with a police informer who asks him to provide information. In his own rather screwed-up way he complied with that. He is set-up effectively by his informer; the priest's letter will testify to that. Common sense suggests that's more than likely what happened.

Bearing in mind all those circumstances, it is right and fitting to give this defendant a lenient sentence."

11. In passing sentence, the judge had clearly taken all the mitigating factors put before him by counsel into account. He said at p.20A to G:

"Now, what counsel says - and I believe counsel has been doing the best he could - now, what counsel says for extra leniency is that the defendant had been set-up, or to use the expression used by counsel, there was entrapment. But this is not a case in which counsel says there was entrapment by the police. It was entrapment by person or persons who were police informers.

Now, I am not aware of any indication from the Court of Appeal that such circumstances merit additional discount. As a matter of logic, once credit is given for such circumstances, then every person caught by the police on information would be entitled to additional discount, and I think that would be wrong in policy."

12. In his written statement addressed to the Registrar of this Court, the applicant set out what we consider to be his grounds of appeal. His letter reads:

"I wish to inform the Registrar that I object to the Directors of Legal Aid refusal of legal aid in my case.

I am qualified for legal aid because of the following.

(1) I have no capital to hire a private solicitor as my wife and I have already borrowed several hundred thousand dollars for my defense. We are financially bankrupt.

(2) There are many mitigating factors that were not taken into account at my trial including:

(A) I have an all but clear record in Hong Kong. I have one minor criminal damage case which I settled by payment of HK$2,000.

(B) I was (I believed I was) working as an undercover informant for the CCB namely Mr Henry Leung of CCB CID inspector.

(C) Entrapment; there is much evidence to support a high degree of entrapment in this case.

(D) A supporting letter from Father Sonafin, a Lai Chi Kok priest which supports the notion that I was illegally entrapped."

13. Before us this morning, he also said that he had not committed the offence and he was persuaded into pleading guilty because his lawyer told him that he would only receive a sentence in the region of 4 years.

14. In our view, what he said in this letter or before us this morning add absolutely nothing to what had been so comprehensively, strongly and compassionately urged by his counsel before the judge and plainly the judge fully bore all those factors in mind when he passed sentence.

15. The starting point of 10 years taken by the judge is within the range of the guideline laid down in the case of Ching Kwok Hung. We are satisfied that the sentence of 6 years and 8 months imposed on this applicant is neither manifestly excessive nor wrong in principle. He was given a one third discount for his plea to which he was entitled. He is not entitled to any additional discount. It has to be remembered that trafficking in dangerous drug is an extremely serious crime and anyone who commits this crime must be given a sufficiently long deterrent sentence. This Court has said time and again that family or personal circumstances are not strong mitigating factors. For these reasons, we dismiss the application which is, in our view, unmeritorious.