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CACC87/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 87 OF 2009
(ON APPEAL FROM HCCC 243 OF 2008)
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BETWEEN
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HKSAR |
Respondent |
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and
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LEE KWOK WAI (李國威) |
1st Applicant/
1st Defendant |
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CHAN KAM WING (陳錦榮) |
2nd Applicant/
3rd Defendant |
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Before : Hon Stock VP, Fok JA and Lunn J
Date of Hearing : 18 August 2011
Date of Judgment : 18 August 2011
Date of handing down Reasons for Judgment : 4 November 2011
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REASONS FOR JUDGMENT
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Hon Lunn J (giving the Reasons for Judgment of the Court) :
1. The 1st applicant sought leave to appeal against a sentence of 16 years’ imprisonment and the 2nd applicant against his conviction on 4 March 2009, after trial by Deputy Judge Line (as he was then) and a jury, and the sentence of 25 years’ imprisonment imposed in consequence. Both of the applicants appeared in person. At the hearing of those applications, we dismissed that in respect of sentence by the 1st applicant and that in respect of conviction by the 2nd applicant. We said that we would give our reasons for doing so in due course. That we do now for the 1st applicant in respect of sentence. We reserved judgment in respect of sentence by the 2nd applicant.
THE INDICTMENT
2. The applicants were jointly indicted on a single count of unlawfully trafficking together with Tam Kam Wah, Simon in a dangerous drug, namely 1,896.70 g of methamphetamine hydrochloride (“Ice”), in Hong Kong between 21 March and 12 April 2008, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
THE TRIAL
3. On arraignment the 1st applicant and Tam Kam Wah pleaded guilty. The 2nd applicant pleaded not guilty, but was convicted after trial.
The prosecution case
4. The prosecution case was that the 2nd applicant, together with the 1st applicant and Tam Kam Wah (the 2nd defendant at trial), was a party to a joint enterprise, to sell “Ice” to an undercover police officer from Australia. That police officer gave evidence. His conversations with the defendants at trial had been electronically recorded and were adduced in evidence. He said that his most frequent contact was with the 1st applicant, but that he had met and negotiated with the 2nd applicant on two occasions, at which the 1st applicant had been present. He met the 2nd applicant in the Harbour Plaza Hotel in Hung Hom on 22 March and 10 April 2008 and their discussions were about the supply of “Ice”.
5. On 12 April 2008, the police officer handed over $170,000 to the 1st applicant. Shortly afterwards, Tam Kam Wah delivered to him the “Ice”, the subject of the count on the indictment. The 1st applicant and Tam Kam Wah were arrested outside the Harbour Plaza Hotel about 20 minutes later. At about the same time, a group of police officers in plain clothes in an unmarked car pulled up alongside the 2nd applicant as he sat in the driver’s seat of a parked car in Yau Tong. Their attempts to apprehend him failed and he drove off. On 28 May 2008, police officers took the 2nd applicant into custody as officers of the Public Security Bureau delivered him to the Mainland side of the Lok Ma Chau crossing.
The defence case
6. The 2nd applicant gave evidence in his defence. There was no dispute about his meetings with the undercover police officer. What was in dispute was the nature of the conversations. The 2nd applicant said that the conversations were about the manufacture and sale of counterfeit cosmetic face masks and related packaging, not “Ice”. He said that on 12 April 2008, when confronted by a group of men, whilst he sat at the wheel of a parked car, he had been frightened and driven off. They had never identified themselves as police officers.
REASONS FOR SENTENCE
7. In sentencing the defendants at trial, the judge took a starting point of 22½ years’ imprisonment. He accepted that there was no evidence that Tam Kam Wah was aware that the drugs were to be taken to Australia. His role was to effect delivery of the drugs within Hong Kong only. Further, he accepted that he did not know the nature of the drugs.
The 1st applicant
8. By contrast, the judge determined that the applicants were aware of the international element of the offence, which had involved considerable planning. Of the role of the 1st applicant, the judge said that he was the assistant of the 2nd applicant :
“ … you translated for him at the meetings and did what he told you, teaching the undercover officer how to convert liquid Ice into crystal and receiving payment for the drugs.”
As a result of the international element, he enhanced the starting point taken for sentence for the 1st applicant to 24 years’ imprisonment.
9. Affording Tam Kam Wah and the 1st applicant a discount of 1/3, to reflect their pleas of guilty, the judge sentenced them to 15 and 16 years’ imprisonment respectively.
The 2nd applicant
10. In the case of the 2nd applicant, the judge stated that he took into account not only the international element of the commission of the offence but also his significant role in the offence. Of that, he determined :
“… you were the man running this enterprise, giving the orders and seeking to keep yourself at a distance from the execution of the plan and the risks involved in that. The drugs that were provided had been expertly hidden impact in facemasks … It was highly professional.”
In the result, the judge determined that the appropriate sentence to impose upon the 2nd applicant was 25 years’ imprisonment.
THE 2ND APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION
11. At the hearing of the 2nd applicant’s application for leave to appeal against conviction the court granted him leave to adduce fresh evidence, as foreshadowed in his Notice of Motion filed with the court on 20 April 2011. Also, the court granted the respondent’s application, foreshadowed in a Notice of Motion dated 12 August 2011, to produce evidence at the hearing of the application. For reasons provided in a separate judgment, we heard the 2nd applicant application for leave to appeal in respect of conviction separately and, for the reasons given in the judgment, that application was dismissed.
GROUNDS OF APPEAL AGAINST SENTENCE
1st applicant
12. In his grounds of appeal against sentence the 1st applicant submitted that the starting point taken for sentence by the judge, namely 24 years’ imprisonment, was too high and inconsistent with judgments of this Court in other cases. Also, the 1st applicant said that he had no knowledge of the quantity of the dangerous drugs involved.
13. The first case on which the 1st applicant relied was HKSAR v Ng Kie Tiong & Another (CACC456/2007; unreported — 29 August 2008) the two applicants had been detained at Hong Kong International Airport, one as he was about to board the flight and the other in the cabin of the aircraft bound for Jakarta, Indonesia. One of the applicants was found to be possessed of 1,943.5 g and the other 1,975.89 g of “Ice”. Each of them pleaded guilty to a count of unlawfully trafficking in a dangerous drug. The judge took a starting point of 25 years’ imprisonment and, after applying a discount of one third for their pleas of guilty, imposed sentences of 16 years and 8 months’ imprisonment.
14. In the judgment of this Court in that case, Yeung JA noted that whilst the judgment in AG v Ching Kwok Hung [1991] 2 HKLR 125 provided detailed guidelines for sentencing for unlawful trafficking in “Ice” in quantities up to 600 g, above that amount there was no specific guideline (see paragraph 20). He went on to observe :
“This poses certain complications in sentencing.
1,900 g of ‘ice’ is quite a huge quantity. But we doubt if a ‘top scale’ starting point of 25 years should be adopted. If 1,900 g of ice justifies such ‘top scale’ starting point, then what would be the just starting point the court should adopt for cases involving 3, 4, 5 kg or even larger amount of ‘ice’?”
15. In the event, the Court determined that in the circumstances of that case the appropriate starting point to be taken for sentence was 22 years’ imprisonment and quashed the sentence. Applying a discount of one third, for the pleas of guilty, the court imposed sentences of 14 years and 8 months’ imprisonment on the applicants.
16. The 1st applicant also drew the court’s attention to its judgment in HKSAR v Chok King Foh (CACC351/2008; unreported — 10 June 2009). In that case, the applicant had been detained on the air bridge at Hong Kong International airport. He was found to be in possession of 1,685.51 g of “Ice”. He pleaded guilty at trial to unlawfully trafficking in that amount of the dangerous drug. The judge, the same trial judge as in v Ng Kie Tiong, took a starting point for sentence of 24 years’ imprisonment and, applying a discount of one third to reflect the plea of guilty, imposed a sentence of 16 years’ imprisonment. In the judgment of this Court, Yuen JA, having adverted to several judgments of this court including Ng Kie Tiong, determined that the starting point taken for sentence was manifestly excessive and that it ought to have been 21 years’ imprisonment. Accordingly, the sentence imposed by the judge was quashed and a sentence of 14 years’ imprisonment imposed in its place.
The 2nd applicant
17. We heard submissions in camera in relation to the 2nd applicant in respect of sentence and a separate judgment is to be delivered in his case.
A CONSIDERATION OF THE SUBMISSIONS
The 1st applicant’s grounds of appeal against sentence
18. In the judgment of this court, delivered by Stock VP in HKSAR v An unknown person alias Stojanovic Milka and Skopljak Sara (CACC110/2010; unreported — 3 November 2010) the earlier judgments of this court in Ng Kie Tiong and Chok King Foh were considered.
19. In Stojanovic Milka, the applicant had been detained in the Arrival Hall at Hong Kong International Airport and found to be in possession of 1,484.01 g of “Ice”. She had made a false representation to an immigration officer, by providing a false name to describe herself, and had used a forged passport when seeking to enter Hong Kong. She pleaded guilty to the offences of unlawfully trafficking in the amount of “Ice” found upon her, making a false representation to an immigration officer and using a forged passport. The judge took a starting point of 22 years’ imprisonment in respect of the unlawful trafficking in the dangerous drugs, which he enhanced by two years to reflect the international dimension of the offence. In the result, the applicant was sentenced to 16 years’ imprisonment in respect of unlawfully trafficking in the “Ice” and eight months on each of the two other counts, six months of the sentence imposed in respect of the forged passport being ordered to be served consecutively consecutive to the term of imprisonment imposed in respect of the dangerous drugs.
20. Of the use of the phrase “top scale” in the judgment of this Court in Ng Kie Tiong, Stock VP said :
“We cannot be entirely sure exactly what was intended by this reference to ‘top scale’ sentences in cases of this kind but we are satisfied that the Court was not suggesting that a 25-year starting point was the maximum sentence that could reasonably be imposed for trafficking in “ice” regardless of the quantity or the circumstances of the offence. The maximum sentence for the offence is one of life imprisonment … Other factors, such as the fact that the offender is a main player in the scheme rather than a courier, may, taking into account of course the quantity, warrant sentences higher than 25 years.”
21. Later in his judgment, Stock VP noted of the judgments of this Court in Ng Kie Tiong and Chok King Foh :
“ … in neither did the court address the starting point for the quantity in issue before aggravation for the international factor. The process normally to be followed is a three stage process: first to take a starting point for the quantity, then to add to that such additional term as is warranted by aggravating features, if any, and then to reduce the sentence from a starting point on account of mitigating factors such as a plea of guilty.”
22. In the event, the Court was satisfied that the starting point taken for sentence, namely 22 years’ imprisonment, was too high and that the appropriate starting point was 20 years’ imprisonment, and that the international element warranted an additional two years’ imprisonment before mitigation.
23. In the instant case, the judge adopted the three stage process identified in Stojanovic Milka. He stipulated a starting point for sentence of 22½ years’ imprisonment. Then, in respect of the applicants he enhanced sentence to reflect their knowledge of the international element of the offence, namely that the dangerous drugs were to be exported to Australia, and to reflect their individual roles. They were not couriers. That was the role assigned to the erstwhile 2nd defendant at trial. The 1st applicant met the undercover police officer on no less than five occasions. As the judge noted, the 1st applicant showed the undercover police officer how to extract crystal ice from liquid ice solvent. Further, on the two occasions that the 2nd applicant was present at the meetings with the undercover police officer the 1st applicant acted as his interpreter. The 1st applicant was entrusted to receive the money from the undercover police officer. Nevertheless, as the judge determined in terms, the 2nd applicant was “the man running this enterprise, giving the orders”.
CONCLUSION
24. In the result, we were satisfied that the judge was correct both in the starting point adopted and in the enhancement of sentence from the starting point that he applied to each of the applicants. He distinguished between the culpability of the two applicants appropriately.
1st applicant
25. Accordingly, the 1st applicant’s application for leave to appeal against sentence was dismissed.
(Frank Stock)
Vice-President |
(Joseph Fok)
Justice of Appeal |
(Michael Lunn)
Judge of the Court of First Instance |
Mr Martin Hui, SADPP (Ag) of Department of Justice, for the Respondent.
1st and 2nd Applicants, in person, present.
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