HKSAR v. WONG KWOK LEUNG AND ANOTHER

CACC 389/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 389 OF 2005

(ON APPEAL FROM HCCC NO. 345 OF 2004)

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REASONS FOR JUDGMENT

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Hon McMahon J (giving the reasons for judgment of the Court) :

1.  The unrepresented applicants, to whom we will refer as D1 and D2 respectively, were jointly charged at trial before Nguyen J and a jury together with D3 to D8, with one count of conspiracy to traffic in dangerous drugs, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap.134 and section 159A of the Crimes Ordinance, Cap.200.  The prosecution case against D1 was that he was the person in charge of an open-air drug “shop” operating from a market place near a flyover in San Po Kong.  Undercover police posing as addicts went to the shop and purchased various drugs, including heroin and midazolam, over a period of about six weeks and observed D1 to be the person directing operations at the scene, D2 and D3 to be the lesser supervisors, and the other defendants to be variously involved in the bringing of drugs to the scene and their sale to addicts. 

2.  D2, D5 and D8 pleaded guilty at their arraignment on 27 June 2005.  D1, D3, D4, D6 and D7 went to trial and were convicted on 16 August 2005.  All eight were then sentenced to various terms of imprisonment.  So far as the present applicants are concerned, D1 was sentenced to 12 years’ imprisonment and D2 to 6 years 8 months.  D1, D3, D4, D6 and D7 then sought leave to appeal their convictions and sentences and in the result the convictions of D3, D4, D6 and D7 were quashed on 15 August 2007.  They were ordered to be retried.  D1’s application concerning conviction was dismissed on 6 September 2007.  He had abandoned his application for leave to appeal sentence on 8 August 2006 and it had also been dismissed on that same day, that is, one year prior to the determination of his application concerning conviction.  On 30 August 2007 D2 filed a notice of an application for leave to appeal his sentence out of time.  On 6 September 2007 that application was adjourned by this court (differently constituted) pending the eventually unsuccessful outcome of D2’s legal aid application. 

3.  When arraigned for their retrial before Tong J on 17 January 2008, all four of D3, D4, D6 and D7 pleaded guilty and were convicted.  They received respectively the following sentences after, perhaps over-generously, being allowed a full one-third discount following their guilty pleas : 6 years’ imprisonment with a starting point of 9 years (D3); 4 years 8 months’ imprisonment with a starting point of 7 years (D4); 5 years 4 months’ imprisonment (D6) and 5 years 4 months’ imprisonment (D7) both with starting points of 8 years.  D4, D6 and eventually D7 appealed their sentences and while D4 was unsuccessful, D6 and D7 had their sentences reduced to 4 years 8 months’ imprisonment.  

4.  On 7 March 2008, D1 filed his present application to treat his notice of abandonment of his application for leave to appeal against sentence as a nullity.  In the result we had before us for determination on 21 November 2008 D1’s application that the abandonment be treated as a nullity and D2’s adjourned application concerning sentence.  We dismissed both applications and now give our reasons. 

D1

5.  D1 provided the following written reasons for having abandoned his application in respect of sentence :

“      The trial judge’s reasons for sentence provided by the court were in English.  I don’t know English, so (I) did not understand the contents then and could not lodge any grounds of appeal.  That’s why (I) abandoned the appeal.  Only until recently did I manage to find someone to translate the judgment into Chinese.  I found that there was some problem with the judgment and that is unfair to me.  That’s why (I) wish to apply for (leave to) appeal again.”

Additionally before us he claimed that an unknown inmate had told him that as he had been convicted after trial there was no point in pursuing his application concerning sentence.  He could offer no reason as to why that advice had been accepted by him.

6.  In HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1, this court adopted the “test” stated in R. v. Medway (1976) 62 Cr.App.R. 85 at 98 :

“In our judgment the kernel of what has been described as the ‘nullity test’ is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment.  In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised.  Such headings can only be regarded as guidelines, the presence of which may justify its exercise.”

7.  In Lai Siu Cheung, the distinction was drawn between the applicant’s understanding of the act of abandonment itself and his reasons for that abandonment.  The former is determinative as to whether the act of abandonment is a nullity, the latter not.  If the act of abandonment of D1 was informed, in the sense that he knew the consequence of what it was he was doing, then his act cannot have been a nullity.  If, however, he did not in that sense know the nature of the act, that act could properly be regarded as a nullity. 

8.  As a starting point, we were not satisfied as to the veracity of the reasons provided by D1 as to why he abandoned his application concerning sentence.  His demonstrated ability to file copious grounds of appeal reflecting a complete understanding of matters pertaining to his original applications for leave to appeal against conviction and sentence both prior to and following his abandonment of his application concerning sentence, rendered wholly specious the reasons he advanced as to why he abandoned that application.  We say this bearing in mind that D1 had access to audio tapes of the trial and his home-made grounds of appeal against conviction were detailed to the point where D1 called in aid specific tracts of evidence given by individual witnesses and particular directions given by the judge to the jury.  In his grounds concerning sentence he referred to the prosecutor citing a particular case to the judge and complained that the case had no application to his own sentencing.  D1 in his written submissions demonstrated an understanding of the issues concerning both his applications which was completely at odds with the reasons he provided as to why he abandoned his application concerning sentence. 

9.  We noted also that the notice of abandonment signed by D1 and dated 8 August 2006 was a standard form document printed in English and in Chinese characters stating explicitly that, while D1’s application concerning sentence was abandoned, his appeal against conviction continued.

10.  We were perfectly satisfied that D1 knew very well what he was doing when he signed the notice of abandonment in relation to his application regarding sentence and sent it to the Registrar of this court.  Accordingly his application that his abandonment be treated as a nullity failed.

11.  It is unnecessary for us to do so but we might add in any event that his proposed grounds of appeal against sentence could never succeed.  By those grounds he firstly disputed the role attributed to him by the prosecution at trial as that of the person in charge of operations and claims he was of lesser importance.  Secondly, he pointed to the fact that one of the persons who transported drugs to the “shop” was prosecuted in the District Court and received a lesser sentence than those prosecuted in the High Court. 

12.  Neither of those grounds could possibly provide a basis for challenging the sentence imposed on D1.  The first flies in the face of the unequivocal evidence of the police undercover and surveillance operatives who over the six weeks of their operation described in detail the role played by D1.  It was he who gave orders at the scene of operations and directed other conspirators in their tasks.  The judge was more than entitled to sentence D1 on the basis of that evidence.  It serves no purpose for D1 to challenge that aspect of the prosecution case, his evidence at trial having clearly been rejected by the jury.

13.  The second proposed ground was also unarguable.  The fact that a co-conspirator was prosecuted separately in the District Court while the main body of conspirators was prosecuted in the High Court and received higher sentences cannot avail those who were sentenced in the High Court, including D1, if the sentences they received were otherwise unobjectionable as we were satisfied D1’s sentence was, given his role.

14.  In any event, we dismissed D1’s application to treat his abandonment as a nullity.

D2

15.  D2 sought to appeal his sentence out of time.

16.  He was sentenced to 6 years 8 months’ imprisonment on 2 September 2005, following the original trial of his co-conspirators at which he had pleaded guilty.   The judge, in sentencing him, took a starting point of 10 years’ imprisonment and reduced that by one-third to reflect D2’s plea of guilty which in his view was the only mitigation available to D2.

17.  It was not until 30 August 2007 that D2 filed a notice of his application for leave to appeal sentence.  The reason he advanced to this court for the nearly two-year delay in applying for leave to appeal is :

“I only found the grounds of appeal recently, hence I apply to the court for leave to appeal out of time.”

18.  The primary ground of appeal sought to be advanced by D2, in addition to those in his original notice, is that D3, D4, D6 and D7, though they were originally convicted only after trial, were allowed a full one-third discount when sentenced after they had pleaded guilty at their re-trial.

19.  He asserted also by his original grounds that the sentencing judge did not take into account that the drug selling operation was “small” but rather treated it as a case of conspiracy to traffic in drugs by a large syndicate such as occurred in HKSAR v. Yu Ka Chun (unreported), CACC47/2001 and that the judge was not sure whether his role was that of a “supervisor” or a mere “lookout”.

20.  Firstly, we were satisfied that in the circumstances of this case, there had been advanced no good reason for D2 filing his notice of application two years after his sentence.  There had been nothing to prevent him doing so, on the basis of the grounds contained therein and to which the sentence imposed on D3 by Tong J on 17 January 2008 was irrelevant, within the statutory period.  Nor, as will be seen, does the sentence imposed on D3 provide D2 with a valid ground of appeal.

21.  In sentencing D3, Tong J took a starting point of 9 years’ imprisonment, that is, one year less than the starting point of sentence adopted by Nguyen J in sentencing D2 on 2 September 2005.  Tong J then discounted that starting point by a full one third and imposed a sentence of 6 years’ imprisonment on D3.

22.  It is accepted by Mr David Leung for the respondent that the roles played by D2 and D3 were indistinguishable.  Both acted as salesmen and were equally involved in other aspects of the operations of the syndicate such as, apparently, on occasion supervising their co-conspirators and keeping a lookout.  Nevertheless while, as we say, the eventual sentence imposed on D3 may be considered generous, the question was whether D2 had a sufficient basis for complaint arising out of the disparity between his sentence and that imposed on D3, given their equality of roles within the syndicate and D3’s pleading guilty only at his re-trial.

23.  We do not think that he does.  The starting point of 10 years’ imprisonment adopted by Nguyen J in sentencing D2 cannot be criticized.  D2 then received a full discount of one-third to reflect his guilty plea.  What is effectively complained of by D2 therefore is that D3 received a more generous sentence from Tong J.  That is not a basis for further reducing the otherwise proper sentence imposed on D2.

24.  As was said in HKSAR v. Chow Tak Fuk (unreported), CACC428/2004, a case involving identical sentences of 15 years’ imprisonment imposed on two drug trafficking co-defendants, one of whom had pleaded guilty and the other who had not :

“… it is well-established that where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused is proper. …”

That is a principle which has been well established in our law since R. v. So Hung Lee (1986) HKLR 1049 per Barker JA at 1052; and is to be distinguished from the different considerations which apply in circumstances where a disparity of sentences imposed by the same judge on co-defendants is said to have arisen, in which case, as was said in So Hung Lee, the principle is :

“… the sentence should be varied by this court if, but only if, it can be shown that the judge has not properly apportioned the blame between the accused.  If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused, then the sentence should stand.”

The sentence imposed on D2 was proper and he cannot point to the over-generous sentence imposed on D3 by a different judge on a different occasion as a reason for a reduction in his own sentence.

25.  We might add that the other complaints advanced by D2 were also without merit.  His assertion that the drug trafficking operation was “small” and that his co-conspirators were “a rabble of a few persons” does not reflect either the sophistication of the operation or its duration.  Whilst we agree that the operation was not on the very large scale of that in Yu Ka Chun (where proportionally higher sentences were imposed), it nevertheless involved a considerable volume of sales of both heroin and midazolam in which D2 played a significant part.  The sentence cannot be criticised on that basis.

26.  D2’s final complaint that the judge was unsure whether he was a lookout or supervisor was equally without merit.  The two roles were not exclusive of each other and the judge was simply referring to aspects of the evidence which attributed those roles to D2 in addition to his role as a salesman.

27.  Accordingly, we dismissed the application of D2.