HKSAR v. WONG KA CHUN

CACC 52/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 52 OF 2015

(ON APPEAL FROM HCCC 474/2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  On 7 November 2014, the applicant pleaded guilty at Eastern Magistracy to one count of, on 20 May 2014, having unlawfully trafficked in a dangerous drug namely, 8.33 kilogrammes of ketamine, 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 sentence and on 16 January 2015 he appeared before M Poon J (“the judge”) and was sentenced to 16 years’ imprisonment.

2.  On 9 February 2015, the applicant filed his Notice of Application for leave to appeal against conviction and sentence.  The application for leave to appeal against conviction was abandoned on 19 May 2015. 

3.  The applicant filed a Notice of Motion dated 15 May 2015 applying for leave to adduce new evidence in the Appeal under section 83V of the Criminal Procedure Ordinance, Cap 221.  The new evidence sought to be adduced is an educational psychologist’s report dated 31 January 2007 that was prepared on the applicant when he was 8 years 10 months old and the applicant’s police video record of interview.  An affirmation in support of his application to adduce new evidence was also filed on the same day and the child psychologist’s report was exhibited to it.

4.  At the hearing on 25 November 2015, the applicant applied for an adjournment in order to conduct further investigations into the applicant’s learning difficulties and mental state.

5.  Prior to the hearing on 12 April 2016 the applicant filed a second Notice of Motion dated 5 April 2016 and a second supporting affirmation of the applicant.  This Notice of Motion sought an order to adduce the evidence of Dr Henry W M Kwok whose psychiatric report on the applicant was exhibited to the applicant’s second affirmation.

6.  At the hearing we refused the application to adduce additional evidence and we refused the application for leave to appeal. We said we would hand down our reasons for so doing at a later date.  This we now do.

The facts

7.  On 20 May 2014, the applicant was observed walking into a lift lobby by police officers.  He was followed into the lift, and was stopped by the officers when he got off.   Upon search of his rucksack and travel bag, a total of 40 plastic packets were found.  They contained 9.94 kilogrammes of a powder containing 8.33 kilogrammes of ketamine, with an estimated street value of around HK$1.2 million.  A house search found a reusable bag containing an electronic scale, some resealable transparent plastic bags and two plastic spoons.

8.  Upon arrest, the applicant admitted under caution that the drugs did not belong to him, and he was helping others for a reward of $500.  He further claimed that the tools did not belong to him.

9.  The Summary of Facts which the applicant admitted on his plea of guilty, contained the following summary of parts of his police video-recorded interview:

“6. In the subsequently held video-recorded interview, under caution, D, in the presence of his father, claimed that he acquainted Kau Chun in an amusement game centre in Tsz Wan Shan in early 2013. D had borrowed $3,000 from him but D never repaid.

7. In March 2014, Kau Chun gave him some transparent plastic bags, spoons and a scale to keep. Kau Chun told D not to put them inside D’s flat but to place them at the fire hose reel outside his flat. D however decided to take them back into his bedroom.

8. Kau Chun subsequently told D that D needed not to repay him the $3,000 if D agreed to deliver ‘goods’ for him instead. Kau Chun then gave 2 mobile SIM cards to D. He told D that someone would call D up later giving him instructions on what to do.

9. On 20 May 2014, D received a phone call from a person whom D referred to as ‘the boss’, telling him to go to Festival Walk to collect dangerous drugs and then to deliver them to somewhere else. D went into a male toilet in the shopping mall as directed. He found inside one of the cubicles a travel bag. Inside the travel bag, there were 2 black plastic bags each containing 20 packets of dangerous drugs. D never expected he would be asked to deliver such a large amount of dangerous drugs.

10. D took out one of the black plastic bags and put it inside his rucksack. He then left the toilet with the travel bag containing the other black plastic bag. He then took a taxi home. The boss called him and told him to leave the drugs at the rear staircase outside his flat.

11. D had previously had money deposited into his Hang Seng Bank account. The money was for a taxi fare.”

Mitigation

10.  The applicant was born on 25 February 1998 and was, therefore, 16 years 3 months of age at the time of the offence and almost 17 years at the time he was sentenced.  In response to a query from the judge the applicant’s then counsel Mr Lawrence Hui made it clear that he was not relying on extreme youth as a mitigating factor and the judge confirmed that in her view the applicant did not fall into the category of an extremely young offender.

11.  Counsel informed the court that the applicant was an only child, and that his parents had given him support throughout his schooling, but the applicant had turned astray because he owed money and that was why he had committed the offence.  It was suggested by Mr Hui that the applicant was perhaps a spoiled and rebellious teenager.  Mr Hui then went on to refer the court to the applicant’s school history.  He informed the court that the applicant had repeated Form 1 once and Form 2 twice and that the applicant said he did not like his studies or he had some problems in learning.  This very brief comment was the only reference to the applicant having experienced any learning difficulties whilst at school.  Mr Hui then said that the applicant had been stupid and naive in committing the offence, but he was young and a teenager.  He urged the judge to adopt a lower starting point and to grant the applicant the full one-third discount for his guilty plea.

12.  Mr Hui submitted the cases of HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, and HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and conceded that the starting point for over 8 kilogrammes of ketamine would be more than 22 years.  He suggested that the judge should adopt a starting point in the region of 23 to 25 years’ imprisonment as sentencing was not, he said, a mathematical calculation.

13.  A mitigation bundle was also provided to the court containing 9 letters written by different family members, teachers and social workers, and 21 various certificates obtained by the applicant and his mother. 

14.  The mitigation materials contained a letter from the applicant in which he said he came to know undesirable young people at parks and ball courts and through them was introduced to drugs.  He said that they “taught me to take dangerous drugs and used me to make money for them.  As far as my temper was concerned, I became impulsive, greedy and conceited due to taking drugs.” 

15.  The applicant also referred in this letter to suffering from dyslexia and this was confirmed in a letter by his father who also said that, because of his dyslexia, the applicant had learning difficulties and this led to him having low self-esteem and lacking in self-confidence. 

16.  His learning difficulties were also described by the applicant’s mother in a letter that she wrote.  She mentioned that the applicant was assessed by the primary school in order to ascertain the cause of his learning difficulties.

17.  A social worker at the applicant’s secondary school also wrote a letter stating that it was known that the applicant had learning difficulties in primary school.  She said:

“His dissatisfactory academic performance therefore had had adverse influence on his self-esteem. His self-confidence was quite weak and it appeared he was quite easily susceptible to the influence of others.”

The Judge’s Reasons for Sentence

18.  In her Reasons for Sentence, the judge observed that the defendant was aged 16, and of clear record.  She noted that counsel for the applicant sensibly conceded he could not plead extreme youth.  The judge took into account the facts of the case, the drugs involved, the tariff and various authorities.  In respect of the mitigation bundle the judge said that their contents constituted little in the way of additional mitigation. 

19.  In determining an appropriate starting point the judge referred to the cases of Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Sin Chung Kin [2013] 1 HKLRD 627.  She noted that in the former 19 years and 9 months was adopted as the starting point for 2.89 kilogrammes of ketamine, and in the latter it was said a starting point of no less than 18 and 20 years’ for 2,000 grammes and 3,000 grammes of ketamine should be adopted.  She then noted that the amount involved in the applicant’s case was much higher than those of the two cited cases.

20.  The judge said that in trafficking cases, the most significant factor in sentencing was the narcotic involved and the greatest mitigation the applicant’s timely plea.

21.  The judge then took a starting point of 24 years’ imprisonment which when discounted by one third became 16 years’ imprisonment and this was the sentence she imposed on the applicant.

The grounds of appeal against sentence

22.  In his Amended Perfected Grounds of Appeal, counsel for the applicant, Mr Arthur Yip, raised four grounds of appeal. 

23.  In his first ground of appeal he complained that the applicant’s former legal representatives had wrongly:

(a) conceded that he was not of “extreme youth” at the time of the offence, without taking into account the fact that he was diagnosed to have dyslexia, which may have been a factor for the court to consider; and

(b) failed to tender information and/or materials concerning his cognitive ability. 

24.  In his second ground of appeal he complained that, given the applicant’s young age and the gravity of the offence, the judge erred by failing to make proper enquiry as to the applicant’s background and personal circumstances by not ordering the preparation of a background report.

25.  In his third ground of appeal he submitted that the judge erred in failing to give a further discount for the applicant’s special personal circumstances.

26.  Finally he said that, by reason of his first to third grounds of appeal, the sentence is excessive.

27.  In his written submission counsel for the applicant accepted that Grounds 1 and 2 are essentially contending that the judge should have ordered reports on the applicant before determining what sentence she would impose on him.  Mr Yip argued that had the court been aware of the applicant’s learning difficulties, such as through the medical reports he now sought to adduce, it would have taken a more cautious approach in sentencing. 

28.  He submitted that had the trial counsel placed the 2007 report of the educational psychologist before the judge she may have been prompted to call for further reports in order to better understand the applicant’s condition and to enable her to decide whether there was anything in his background that impacted upon the question of whether he fell into the category of “extreme youth”. 

29.  Mr Yip also argued that even in the absence of the 2007 report, the judge should have asked for reports so that she was better informed about the applicant’s background and personal circumstances.  The judge was concerned as to why the applicant committed the offence.  This is evident, Mr Yip submitted, from comments made by the judge in the course of the mitigation where she said:

“One thing I don’t quite understand about youngsters or young people these days is that we’ve got wide advertisement, either on television, on the news, as to the consequence, the serious consequence of being couriers of drugs or trafficking in dangerous drugs. Why do they still, because of financial factors, commit these sort of offences?” (Emphasis added.)

30.  The argument Mr Yip advanced was that, given the judge’s query, it was necessary to find out from background reports the reasons why a young person of 16 years committed the offence.  Reports could reveal any ‘peculiar individual circumstances’ that might explain why the applicant committed this offence.  

31.  Finally, it was contended that the judge erred in failing to exercise her judicial discretion to give a further discount for the applicant’s various mitigating factors and special personal circumstances, namely “that he was a young person having certain disabilities”, being those set out in the 2007 report.

The application to adduce new evidence

32.  As stated earlier in this judgment the applicant’s Notices of Motion seek an order to adduce new evidence in the appeal, namely: a) the 2007 educational psychologist’s report on the applicant; b) the transcript of the applicant’s cautioned video-record of interview and c) a psychiatrist’s report on the applicant.

33.  In his Affirmation, the applicant affirmed that the application to adduce fresh evidence is concerned with Ground 1 of his perfected grounds of appeal. 

34.  The applicant in his Affirmation explains that the evidence was unavailable at trial because of the ineffective conduct of his case by his then legal representatives.  It is not necessary to go into the details of this ground as the respondent has conceded that the application for adducing fresh evidence could be proceeded with on the basis that the applicant’s factual allegations against his former legal representatives are true.  This satisfies the requirement under section 83V that the failure to adduce the evidence at the earlier hearing must be satisfactorily explained.

35.  In his written submissions, counsel for the applicant submitted that the 2007 educational psychologist’s report is relevant to the issue of whether the applicant’s intellectual or cognitive level was commensurate to the norm of persons of his age and also because, had it been available, it should have led to both trial counsel and the judge obtaining further reports, such as has now been obtained from Dr Kwok, before making any judgment that the applicant could not be regarded as being of ‘extreme youth’.  This is the basis on which counsel for the applicant relies in saying that the two reports are ‘relevant to an issue in the appeal’.

36.  In the 2007 education psychologist’s report, the educational psychologist concluded that the applicant had, at that time, specific learning difficulties in reading and writing that did not result from his intellectual functioning. Thus, a number of learning recommendations were made to assist him.

37.  Counsel for the applicant accepts that this report does not per se state that the applicant is a person of low IQ (he was within the average-to-high range in cognitive functioning ability), nor is it material upon which the applicant can rely on its own to prove ‘extreme youth’.  However, it is submitted that the report shows he had difficulties in the application of Chinese words and reading comprehension; in efficiently grasping what other people said; and as a result his studies, self-image and family relationships would be affected.

38.  In his report dated 3 March 2016 Dr Kwok concluded that the applicant is suffering from Specific Learning Disorder (“SLD”)[1] which he says is a “Neurodevelopment Disorder with a biological origin that is the basis for abnormalities at a cognitive level … which affect the brain’s ability to perceive or process verbal or non-verbal information efficiently and accurately.”   Dr Kwok confirmed that the applicant’s specific learning difficulties “are not the result of intellectual disability as indicated by his average to high average intellectual functioning.”   

39.  Dr Kwok further diagnosed the applicant as suffering from Attention-Deficit/Hyperactivity Disorder (“ADHD”) to a moderate to severe degree.  Although most children grow out of ADHD he said that the applicant was still suffering from some residual symptoms of it.

40.  Dr Kwok said the SLD had been diagnosed at school but the ADHD had not.  The failure to diagnose the ADHD had led to him being perceived by others as lazy, uncooperative, irresponsible and lacking motivation to study.  It also led to his mother putting pressure on him to achieve unrealistic academic goals.

41.  All of these problems caused the applicant to have low self‑esteem and to feel rejected and isolated in his relationship with others.  This made him vulnerable to the influence of those who would treat him well as happened with the persons who persuaded him to engage in drug trafficking.

42.  Dr Kwok concluded:

“I think his psychiatric disorders have played a significant role in contributing to the development of the many subsequent negative events that include the eventual law-breaking behavior.”

43.  In order for us to better understand Dr Kwok’s report he was called to give evidence in support of it.  The effect of his evidence was that the combination of the applicant’s SLD and ADHD caused him to be bullied and teased at school.  He had no friends at school and became isolated.  This affected his academic performance and his ability to form relationships with others.  All of this led to low self-esteem and made him vulnerable to approaches from others who might treat him well.  This would explain how he came to associate with his drug trafficking friends and through their generous indulgence of him how he became indebted to them.  To this extent his conditions might have rendered him more easily manipulated by them.

44.  However, Dr Kwok made it clear that the applicant was not mentally retarded by his conditions and suffered no intellectual impairment from them. In fact the applicant had been assessed by the educational psychologist as having between average and high average intellectual functioning and Dr Kwok accepted this.  Nor did his conditions impact upon his ability to appreciate that drug trafficking was illegal, morally wrong and could lead to severe consequences. 

45.  The reason for adducing the VRI is, according to the applicant in his Affirmation, to put the applicant’s admission “in the right context for the Court of Appeal to consider his appeal against sentence”.  Specifically, the applicant says it shows he had been co-operative in the police investigation and had endeavoured to help the police to identify other parties involved in the incident.

46.  Although the respondent conceded that the applicant has satisfactorily explained why the reports were not adduced at trial he argued that the applicant has not satisfied the section 83V requirement of showing that the reports would afford a ground of appeal as the applicant’s learning disabilities are not a ground of mitigation.

47.  As to the VRI, the respondent argues that no reasonable explanation has been provided for the failure to adduce the transcripts at the applicant’s sentencing and that such co-operation with the police as is evidenced by the VRI affords the applicant no more than the usual one‑third discount for his guilty plea.  The respondent, therefore, contends that, in respect also of the VRI, the conditions under section 83V of the Criminal Procedure Ordinance are not satisfied.

Discussion

48.  At the outset we would like to say how concerned we were that much of the basis of Mr Yip’s submissions was an assumption that the trial judge, and indeed even this court, had an obligation to, in effect, perform counsel’s duties.  It is for the defendant’s counsel in the first instance to decide what he shall agree to in the Summary of Facts that is to be used for the purpose of sentencing his client.  The content of the Summary of Facts is a matter of negotiation between defence counsel and prosecutor.  If defence counsel wishes the judge to have access to other material it is for him to place it before the judge.  If there are matters not relating to the commission of the offence, such as matters personal to the defendant or his family, it is for the counsel to inform the judge of them.  If such matters need to be verified by reports, such as medical matters, it is for counsel to obtain them.  The fact that a client is pleading guilty in no way lessens the professional duties of counsel to his client or the standard required of him in performing those duties.

49.  At a sentencing hearing the judge is entitled to assume that the defendant’s counsel wishes the judge to sentence the defendant on the basis of the materials that he has placed before the judge and on any other information he has provided the judge from the bar table.  There was nothing said in mitigation or in the materials placed before the judge to justify her calling for reports bearing in mind that the judge was concerned with sentencing an offender for trafficking in dangerous drugs.  The Court of Appeal has repeatedly said that when sentencing for this offence the personal circumstances of the offender carry little weight. 

50.  Informing the judge that the applicant was a poor student and had problems in learning hardly distinguished this applicant from any other young offender.  Even once the judge became aware that the applicant was dyslexic that fact alone would not prompt her to obtain reports.  There was no reason for the judge to think that a learning disorder would have any causal link to trafficking in this huge amount of dangerous drugs, especially once she had been told that the applicant committed the offence because he owed money.  It was quite wrong of Mr Yip to try and hold the judge responsible for not enquiring further into the background and circumstances of the applicant.  If there were any shortcomings in this sentencing hearing they were those of the applicant’s counsel not of the judge.

51.  There is no doubt that the better informed a sentencing judge is of the personal circumstances of an offender the better able the judge will be to impose a just sentence.  The question is would the information now placed before us have had any impact on the sentence that was imposed on this applicant. We are not persuaded it would have.

52.  Mr Yip argued that given the applicant’s conditions the judge might have been persuaded to treat him as a person of extreme youth.  There is nothing in this argument.  The applicant’s conditions did not impair his intellectual functioning or give him a reduced mental age.  They did not affect his ability to tell right from wrong, to realize that he was being asked to traffick in dangerous drugs or to properly exercise judgment in deciding to agree to do so.  The applicant’s conditions would not have provided the judge with any reason to treat him any differently from any other drug trafficker of similar age.

53.  The court’s attitude to youth as a mitigating factor may be harsh but it is well known and has recently been reaffirmed.  In Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853 the Court of Appeal heard a Secretary for Justice’s review in respect of two defendants, aged 17 and 18, who, on their plea of guilty to trafficking in dangerous drugs, were sentenced to a Training Centre.  The Court of Appeal substituted a sentence of 4 years’ imprisonment, saying:

“29. Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever carries on such an evil business, irrespective of his/her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the ‘aged’, the ‘young’ or the ‘crippled’ will be encouraged to take part.

30. Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent. There is also no doubt that the court must exercise great care before committing young offenders to prison.

31. However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it. It is, therefore, not in the interest of the community to sentence even young offenders of serious drug trafficking offences to the Training Centre.”

54.  In respect of the applicant’s VRI, there is no doubt that it reveals the applicant to be quite forthcoming in his answers to the police officers’ questions.  But the information he provided to the police did not lead to any prosecution and so the applicant would not be entitled to any further discount for his assistance to the authorities.  After reading the transcript of the applicant’s VRI we can readily see why defence counsel may not have wished to place it before the court for it clearly reveals the applicant to be fully aware of what he was doing and of the illegality of it.  There is nothing in the report which provides support for their being a direct causal link between the applicant’s SLD and ADHD and his decision to take possession of the drugs and transport them to his home.  They may explain why he formed and maintained relationships with drug traffickers but that had been some 12 months before the commission of the offence.

55.  We were not satisfied that the conditions precedent to our receiving new evidence on appeal as laid down by section 83V were met. The evidence as to the applicant’s SLD and ADHD would not, if received, afford any ground for allowing the appeal.  Likewise in respect of the contents of the applicant’s VRI which also did not meet the condition that there be a reasonable explanation for the failure to adduce it.  The conditions of section 83V not having been satisfied we declined to receive this evidence. 

56.  The only ground of appeal that we have not addressed does not depend on the fresh evidence.  However, it merely claims that the judge did not take into account all the relevant personal circumstances of the applicant when determining the appropriate sentence to impose on him.  As we have already emphasized, in drug trafficking cases, personal circumstances carry little weight.  The usual personal circumstances, such as good character, are subsumed in the one-third discount for the guilty plea.  Sometimes a personal circumstance may prompt a judge to adopt a more lenient starting point.  There is no personal circumstance for this applicant that would justify the court adopting a starting point lower than that of 24 years that was adopted by the judge and certainly none that would justify a starting point of 18-20 years’ imprisonment that Mr Yip rather ambitiously urged upon us.  

Conclusion

57.  For these reasons we refused the applicant leave under section 83V of the Criminal Procedure Ordinance, Cap 221 to adduce new evidence on appeal and we refused him leave to appeal his sentence.