HKSAR v. HUNG WING YU

CACC 297/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 297 OF 2015

(ON APPEAL FROM HCCC NO. 433 OF 2014)

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J U D G M E N T

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Introduction

1. On 1 September 2015, the applicant was convicted before Deputy Judge Wilson Chan in the High Court on her own pleas to one count of trafficking in dangerous drugs, namely 416.86 grammes of a powder and 0.16 gramme of a crystalline solid containing 215.40 grammes of ketamine, and 16.18 grammes of a solid containing 8.99 grammes of cocaine (Count 1), and a further count of possession of a dangerous drug, namely 0.92 gramme of a crystalline solid and 0.18 gramme of a solid containing 1.03 grammes of methamphetamine hydrochloride, commonly known as “Ice” (Count 2).  On the same day, she was sentenced to 6 years and 10 months’ imprisonment on Count 1, and 8 months’ imprisonment on Count 2, both sentences being ordered to run concurrently with each other.

2. It is relevant to note, however, that, whilst the applicant pleaded guilty to Count 2 on the first day of trial, her plea of guilty to Count 1 came only after the judge had ruled her admissions voluntary on the seventh day of trial, ie following a six-day voir dire involving, as the judge described, the calling of no less than eight prosecution witnesses and “a full-blown attack on the integrity of law enforcement officers”[1].

3. By a Notice of Application for Leave to Appeal dated 4 September 2015, the applicant applies for leave to appeal against her sentence.

4. I should say that the applicant had applied by letter of 24 February 2016 for an adjournment of this hearing in order to obtain the assistance of family members in producing some authorities.  I pointed out that she had earlier requested another adjournment by letter of 13 December 2015, which request I had allowed resulting in the vacating of an earlier hearing date set for 2 February 2016.  Since I was not prepared to keep adjourning this matter, I refused this application for a further adjournment of the hearing.  In the event, the applicant was able to produce one case (which I shall refer to later), on which she made submissions.

The facts of the case

5. In the early afternoon of 26 May 2014, police officers were conducting an anti-dangerous drugs operation inside Tsut Hei Building at No. 8 Ting Fu Street, Ngau Tau Kok, Kowloon (“the Building”).  At about 5:23 pm on the same day, the applicant was seen walking up to the fifth floor of the Building and preparing to open the iron gate of Flat J on the same floor (“the Flat”).  The applicant resided in a sub-divided unit of the Flat, known as Room J2.  She was intercepted by the officers.  Upon a search of the applicant’s handbag, multiple re-sealable plastic bags containing suspected ketamine and cocaine were found.  The applicant was duly arrested.  Under caution, she admitted possessing “K Chai” for sale so that she could repay some money.

6. Following a search of the Flat, the police found by the applicant’s bed multiple re-sealable plastic bags containing suspected dangerous drugs, one Ice flask containing suspected “Ice”, an electronic scale and a vast quantity of empty re-sealable plastic bags.  Under further caution, the applicant admitted that the drugs contained ketamine and she intended to sell them for a profit so that she could repay her debts.

7. In a subsequent video-recorded interview, the applicant further admitted under caution that:

(i) she owed a debt to a bank of more than HK$100,000;

(ii) she was the sole tenant of the Flat.  She had never invited others to come into the Flat and she used the Flat for her own living and in order to store drugs;

(iii) she owned the handbag in which drugs were found;

(iv) the mobile telephones seized from her were used for drug trafficking activities; and

(v) she possessed the Ice flask and the electronic scale for her own consumption of “Ice” and for weighing the drugs.

8. The estimated retail value of the ketamine, cocaine and “Ice” seized from her and from the Flat were HK$50,876, HK$15,905 and HK$464 respectively.

Mitigation

9. In mitigation, it was submitted on the applicant’s behalf that:

(a) she was 24 years of age and had had a clear record prior to the commission of the present offences;

(b) she was unemployed at the time of arrest;

(c) the cocaine in Count 1 was intended for her own consumption; and

(d) she was unlikely to bear a child for medical reasons.

10. In a mitigation letter submitted to the court through counsel, the applicant also claimed to have been led astray by her former boyfriend.

Reasons for Sentence

11. In sentencing the applicant on Count 1, the judge used the so-called “combined approach” to collections of drugs by first considering the guidelines applicable to cocaine (the most serious of the dangerous drugs in the present case) and then adjusting the sentence upwards to reflect the significant quantity of ketamine involved.

12. Having considered the sentencing guidelines for heroin set out in R v Lau Tak Ming [1990] 2 HKLR 370, as applied to cocaine in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the judge correctly identified the applicable range of sentence after trial for trafficking in up to 10 grammes of cocaine narcotic as between 2 and 5 years’ imprisonment.  Given the quantity concerned, namely 8.99 grammes of cocaine, the judge adopted a starting point of 4 years and 8 months’ imprisonment.  Making an upward adjustment for the 215.40 grammes of ketamine narcotic concerned, and taking as an aggravating factor that the applicant had trafficked in two different types of dangerous drug, he adopted an overall starting point of 8 years and 4 months’ imprisonment for Count 1.  For the applicant’s late plea of guilty, he adopted a discount of 18% from that starting point.  Accordingly, the applicant was sentenced to 6 years and 10 months’ imprisonment.

13. The judge further considered the correctness of his sentence by reference to the three tests described by the Court of Appeal in HKSAR v Chan Yuk Leong (unrep., CACC 318/2013), namely the “absurdity test”, the “conversion test” and the “ratio test”[2], and concluded that his starting point was appropriate.

14. It should be noted that the judge refrained from according any discount to the applicant for her assertion made through counsel, but not supported by evidence, that half of the cocaine in Count 1 was for her own consumption.

15. As for Count 2, the judge adopted a starting point of 12 months’ imprisonment, before discounting it by one-third to reflect the applicant’s guilty plea entered at the beginning of the trial.  This produced a sentence of 8 months’ imprisonment, which the judge, having regard to the totality principle, ordered to run wholly concurrently with the sentence imposed on Count 1.

Ground of appeal

16. It is the applicant’s contention that she should have been given more than a “one-sixth discount”[3] (for Count 1), since the jury had not yet been empanelled before her (late) plea of guilty was entered.  In her oral submissions before me today, she has drawn parallels between her own case and that of a defendant who was dealt with at first instance in the District Court in HKSAR v Au Tsz Lun (DCCC 567/2014).  There a woman of good character with marital problems had pleaded guilty after a contested voir dire and yet was still accorded a 25% discount for her late plea.  The applicant asks, therefore, why she should have been treated more harshly than the defendant in DCCC 567/2014.

Respondent’s submissions

17. Mr Daryanani, for the respondent, essentially submits that no valid issue can be taken by the applicant with the starting points adopted by the judge in respect of both counts, or with the overall totality of the sentence.  In his written submissions, he has endeavoured to work out with some precision what the correct sentences on Count 1 would be using the three tests referred to by the judge, and has confirmed that the judge’s calculations were correct.

18. He further argues that the 18% discount accorded by the judge to the applicant for her late plea to Count 1 was appropriate, and cites HKSAR v Chan Wai Ming, William [2013] 6 HKC 552 and HKSAR v Leung Cho Yi (unrep., CACC 385/2008) in support of his argument.  In the former case, the Court did not disturb a discount of 17.8%, whilst in the latter case, the Court said, at para 9, that by being given a discount of 25% for plea following a contested voir dire, the applicant had been “treated very leniently” by the trial judge, and that in such a situation the discount “should usually be in the order of 20%”.  It may be noted that the applicant in HKSAR v Leung Cho Yi was charged with trafficking in both cocaine and ketamine, yet had only admitted in her records of interview to trafficking in ketamine.  After the trial judge had ruled the applicant’s records of interview to be voluntary, she changed her plea to trafficking in the ketamine components in Counts 1 and 2 only and the prosecution dropped the part of the allegation that she was also trafficking in cocaine.  Although it is true that she successfully contested the admissibility of her confession, the case to which she ultimately pleaded guilty was somewhat different to the case on which she had originally been arraigned.

19. Mr Daryanani has also properly drawn my attention to the case of Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155.  In that case a 25% discount was applied by the Court upon an application for review of sentence, in circumstances where a late plea had been entered at trial in the District Court following a voir dire.  The prosecution had relied heavily on the applicant’s inculpatory statements, since neither victim was available to give evidence,and the same were ruled admissible on the second day of the trial.

Consideration

20. I can see no error in the judge’s otherwise careful approach to sentence on Count 1, which is consistent with the approach and tests laid down by the Court of Appeal where cocktails or collections of more than one dangerous drug are involved.  Trafficking in more than one kind of dangerous drug can be an aggravating feature, as the judge determined in this case it was: see HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011), at para 11; and HKSAR v Chan Yuk Leong (supra), at para’s 23-25.

21. Further, in the absence of any evidence to suggest that the applicant’s own consumption might have had any impact for sentencing purposes on the quantum of drugs in which she was trafficking, it is difficult to criticise the judge for failing to accept that some unspecified quantity of the drugs was for the applicant’s own consumption, or that it would have had any appreciable effect on the starting point.

22. In respect of the discount for plea on Count 1, the applicant’s plea had only come about after what the judge described as “a full blown attack” on the integrity of the police officers in a contested voir dire, during which the prosecution had been obliged to call eight prosecution witnesses over six days.  Having considered what the Court had to say in HKSAR v Chan Wai Ming, William (supra) at para’s 8-9, the judge determined that the applicant was only entitled to a discount of 18% for her late plea in respect of Count 1.  These assessments are very much a matter of sentencing discretion for the trial judge, who is in the best position to weigh the various factors which bear on the appropriate discount for a late plea following a voir dire.

23. So far as the first instance decision in HKSAR v Au Tsz Lun is concerned, the case did not result in any appeal.  As this Court has said on many occasions, every case and every set of facts and circumstances is different.  Accordingly, the factors which bear on the exercise of the sentencing discretion will also differ.  Furthermore, judgments at first instance, which have not resulted in any appellate decision, are of little or no relevance to appeals.  It is clear from reading the Reasons for Sentence of the court in the case referred to by the applicant that the judge was particularly influenced in the discount he gave by the defendant’s mitigation, her extenuating domestic circumstances, her good character and her genuine remorse.

24. In relation to the sentence on Charge 2, no complaint can be conceivably be made about the judge’s approach.  The applicant received a full one-third discount from an appropriate starting point, having pleaded guilty to this charge at the outset.  In any event, the sentence was ordered to run wholly concurrently with the sentence on Charge 1.

Conclusion

25. In all the circumstances, I can see no reasonably arguable grounds for appeal against sentence and the application for leave to appeal against sentence must be refused.

26. The applicant is duly advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal and the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Appeal Bundle, p 14Q-R.

[2] The judge found that these tests would have resulted in sentences of around 12 years and 4 months’ imprisonment, 8 years and 2 months’ imprisonment, and 8 years and 3 months’ imprisonment respectively.

[3] To be precise, the judge discounted the starting point for sentence on Count 1 by 18%.