HKSAR v. KO CHI-YIP

HCCC 65/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 65 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to trafficking in a dangerous drug, consisting of 216 g of a crystalline solid containing 200 g of methamphetamine hydrochloride, commonly known as Ice. He has entered his plea on the day that had been fixed to be the first day of his trial. He had previously indicated at a pre-trial review on 22 May 2017 that he would change his plea from not guilty to guilty. There had been a previous pre-trial review on 10 May 2017 where he had indicated that he would plead not guilty and arrangements were made for his trial. The second pre-trial review was arranged because of an outstanding issue of disclosure of materials. The question therefore arises as to whether the defendant is entitled to the normal one third discount following a timely plea of guilty. See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

2.  Before I address that issue I will set out the facts giving rise to this offence as well as the background circumstances of the defendant.  In the early morning on 8 June 2016, a team of police officers were on duty near the junction of Shek Kip Mei Street and Tai Nan Street, Sham Shui Po, Kowloon. Near the rear lane of Shek Kip Mei Street, they intercepted the defendant and found in the front waistband of his trousers a paper box inside which was a resealable plastic bag containing the drugs.  The estimated street value of the drugs at the time of the offence was $73,440.  The defendant admits that he was in possession of the drugs for the purpose of unlawful trafficking.

3.  The defendant is 29 years of age.  He was educated up to Form 3 and after leaving school has had various jobs but at the time of this offence he claimed he was working as a declaration worker.  He does not appear to have a stable family background and since 2009 has been regularly in trouble with the law.  He has prior convictions for being a member of a Triad society, criminal intimidation, resisting and assaulting police, possession of an offensive weapon, and more recently for trafficking and possession of dangerous drugs. His last conviction was possession of dangerous drugs for which he received a DATC order.  He had previously received in 2009 a DATC order.  He claims he is not abusing drugs but the previous DATC orders would indicate that the converse is true.  This was confirmed by Mr David Boyton on the defendant’s behalf.  In light of his background and circumstances and the nature of the offence, very little meaningful mitigation can be advanced on his behalf except for the discount he should receive for his plea of guilty.

4.  According to the sentencing guideline cases of AG v Ching Kwong Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in Ice, a starting point for a quantity of 200 g within the indicated tariff band is 13 years and 3 months’ imprisonment.

5.  Mr Boyton has addressed me extensively on the issue of the discount to be afforded to the defendant for his plea of guilty.  As noted in Ngo Van Nam, an indication of a plea of guilty after the fixing of trial dates but before the first day of trial affords a defendant a discount ranging between 25  to 20 percent depending on the time when it is entered.[1] This is subject to the overriding discretion of the judge in sentencing who in determining the appropriate discount to be afforded to the defendant in the circumstances, is required to have regard to the time at which the indication was given and to all the other relevant circumstances.[2]

6.  The listing of this case was on 22 April 2017.  Mr Boyton points out that full and timely disclosure of the prosecution material had not been made prior to the listing date.  The defence were not supplied with the usual list of unused material.  He also points out that written requests were made by the defence for disclosure of unused material which was only forthcoming after the first pre-trial review.  He submits that had timely disclosure been made of this material prior to or at the committal stage that would have allowed the defendant’s legal representatives to provide informed advice to the defendant and for the defendant to make an informed decision about his case.  He refers to internal legal circulars of the Prosecutions Division of the Department of Justice where reminders are made of the obligation on the prosecution to “effect full and timely disclosure”.  He also refers to the new Practice Direction 9.3 “Criminal Proceedings in the Court of First Instance” which is to take effect after 12 June 2017 and to the future deadline on the prosecution to furnish a list of unused materials to the defence within 14 days after the committal.  He naturally complains that the defendant’s situation was exacerbated by the failure of the prosecution to provide full and timely disclosure of materials so that the defendant could make an informed decision as to his case.  He was right to point out that there had been a number of adjournments and staggered submission of materials to the defence.

7.  Mr Boyton argues that the defendant should receive the full one third discount because of the failure of the prosecution to make full and timely disclosure of material that did have a bearing on the position that the defendant took in relation to his case.  He prays in aid the reasoning of the Court of Appeal in Ngo Van Nam concerning the provision of the full one third discount at committal.  The Court there explained that the opportunity to secure a one third discount from the starting point for sentence occurs when the defendant is given the opportunity to plead guilty in the Magistracy.  The Court went on to explain:

“Obviously, that is an event of importance to a defendant. So, those representing a defendant who is to be committed to the Court of First Instance must advise a defendant of his options, so that he is in a position to make an informed choice. As noted earlier, that does not require that a defendant is given an assessment of “the prospects of conviction or acquittal”. At issue only, is whether or not in his instructions the defendant acknowledges that he performed the acts, with the accompanying mental element, proof of which is required to establish the offence.”[3]

8.  The material that Mr Boyton says was not disclosed that brought about the defendant’s change of position consisted of WhatsApp messages on the defendant’s mobile phone that was seized from him at the time of his arrest by the police.  It was not until very late in the day when Mr John Wright, counsel on fiat, was briefed to appear for the prosecution that he requested that any messages on the defendant’s phone be retrieved.  This was after the first pre-trial review but before the second pre-trial review.  The WhatsApp messages are inculpatory, and reveal that the defendant was arranging to deliver the drugs that the police said they found on him.  

9.  Mr Boyton argues that this was important evidence that changed the complexion of the case against the defendant.  It did result in a change of advice to the defendant and a change of position of the defendant by entering a plea of guilty.  He further argues that if the prosecution had fulfilled its legal obligation of making full and timely disclosure of materials at the committal stage, the defendant’s position would have been different. 

10.  The response from Mr Wright is that whilst the evidence of the WhatsApp messages was served late, it is not material in the circumstances of the case to the discount to be afforded to the defendant following his plea of guilty.  I agree with Mr Wright’s submission. 

11.  The WhatsApp messages were clearly known to the defendant and there was always the possibility of them being relied upon by the prosecution in the case against him.  The defendant made an informed choice to enter a plea of not guilty which he maintained until after his case was listed for trial.  He was aware of the WhatsApp messages and of his involvement in the crime to which he has admitted.   The issue in relation to the discount he is to receive is dependent upon the stage of the proceedings that he has entered his plea of guilty.  A sentencing court has an overriding discretion but there has to be very good reason to adjust the percentage discounts from those now laid down in Ngo Van Nam.  I see no reason not to follow Ngo Van Nam, and accordingly in the circumstances of this case I will afford the defendant a discount of 25 percent. 

12.  As I have noted, the starting point is 13 years and 3 months’ imprisonment which I will reduce by 25 percent to 9 years and 10 months’ imprisonment.