HKSAR v. CHU HO WA AND ANOTHER

CACC 331/2017

[2021] HKCA 1896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 331 OF 2017

(ON APPEAL FROM HCCC NO 367 OF 2016)

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R E A S O N S   F O R   J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The 1^st applicant, who was D1 at trial, the 2^nd appellant, who was D2 at trial and two other co-defendants, namely D3 and D4, were jointly charged on a single count of unlawfully trafficking in 34,868 grammes of a solid containing 34,232 grammes of methamphetamine hydrochloride, a dangerous drug more commonly known as “Ice”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. All four defendants pleaded not guilty and stood trial in the High Court before Deputy Judge Johnny Chan (as he then was) (“the judge”) and a jury. However, D4 absconded in the middle of the trial.

2.  At the conclusion of the trial, D1 and D2 were convicted of the count, while D3 was acquitted.  On 10 October 2017, D1 and D2 were each sentenced to 33 years’ imprisonment.

3.  On 26 October 2017, D1 applied for leave to appeal against conviction.  He subsequently filed a Notice of abandonment in respect of the application for leave on 29 January 2019, which was formally dismissed on the same day, pursuant to rule 39 of the Criminal Appeal Rules, Cap 221A.  However, on 14 May 2019, D1 applied for leave to appeal against sentence out of time.  In his affirmation attached to his Notice of application for leave, D1 explained that he was applying for leave out of time because he had since given evidence against D4, who had been re-arrested and tried before another judge, Campbell-Moffat J.  The trial of D4 had only recently concluded. Technically, by 14 May 2019, D1’s application was about 18 months out of time.

4.  On 19 October 2017, D2 applied for leave to appeal against both conviction and sentence but, on 29 January 2019, abandoned the whole application, which was then dismissed on the same day.  However, pursuant to his petition to the Chief Executive of the Hong Kong Special Administrative Region of 3 June 2019 for a reduction of sentence, having also recently given evidence against D4, the Chief Executive exercised her power under section 83P of the Criminal Procedure Ordinance, Cap 221, on 3 October 2019, to refer the case to the Court of Appeal. 

5.  No issue was taken by Mr Ira Lui, on behalf of the respondent, with D1’s appeal being substantially out of time.  Both having subsequently given evidence for the prosecution at the successful prosecution of D4, he recognised that they were each entitled to look to the Court for an appropriate further discount on their sentences.

The prosecution case against D1 and D2

6.  In the evening of 26 February 2016, surveillance officers of the Narcotics Bureau saw four people, two of whom had emerged from a light goods vehicle and two from a white private car, gathering in the Repulse Bay area.  Thereafter, the two in the white private car left the scene.  As for the two in the light goods vehicle, they were later seen picking up a carton box and a suitcase from a speed boat near a kiosk on the beach, which they then loaded into the light goods vehicle.  The light goods vehicle and the white private car later met up again and both vehicles travelled in convoy to Yau Ma Tei in Kowloon, with the white private car leading the way for most of the journey. 

7.  Both vehicles were followed by surveillance officers throughout the journey.  They were eventually intercepted by officers of the Operations Division of the Narcotics Bureau at the junction of Waterloo Road and Shanghai Street in Kowloon.  D1 and D2 were the driver and front seat passenger respectively of the light goods vehicle; while D3 and D4 were the driver and front passenger respectively of the white private car.  The police searched the light goods vehicle and found the carton box and the suitcase, which were suspected to contain dangerous drugs.  D1 to D4 were duly arrested for the offence of trafficking in a dangerous drug.  D1 and D2 made admissions to the offence under caution at the scene of arrest.  Subsequently, in their video recorded interviews, both men made further admissions under caution.

8.  The contents of the carton box and suitcase were in due course examined by the Government Chemist.  There were found to be altogether 35 bags, inside of which were a total of 34,868 grammes of a crystalline solid, containing 34,232 grammes of “Ice”.  The estimated retail price of the “Ice” seized at the time of the offence was more than HK$10 million.

The judge’s reasons for sentence in respect of D1 and D2

9.  D1 had two previous appearances before a magistrate’s court in 2006 and 2014 for offences of an entirely different nature, for which he had been placed on probation and fined respectively. However, D2 had one previous encounter with the courts in 2010, when he was sentenced to 4 years’ imprisonment for trafficking in dangerous drugs.

10.  Since the sentencing guidelines for trafficking in 600 or more grammes of heroin, as prescribed by the Court in HKSAR v Abdallah^[1], are applicable to the same quantities of “Ice”, in accordance with HKSAR v Tam Yi Chun[2], the judge considered that the starting point for more than 15,000 grammes of “Ice” should be over 30 years’ imprisonment at the sentencer’s discretion. Accordingly, he adopted a starting point of 33 years’ imprisonment.

11.  Having heard submissions, the judge expressly decided not to enhance the sentence for D2’s previous similar conviction, since the sentence was already extremely long.  Both D1 and D2 were accordingly sentenced to 33 years’ imprisonment.

Proceedings in respect of D4

12.  D4 had absconded during a lunch break of the trial of D1, D2, D3 and himself on 26 September 2017, for which a warrant of arrest was immediately issued.  He was not re-arrested until April 2018, by which time the trial of D1 and D2 (and D3) had concluded.  Accordingly, he faced a new indictment, which charged the original count of trafficking and a further count of failing to surrender to custody without reasonable cause, and a new trial before Campbell-Moffat J and a jury, between 18 and 29 March 2019.  D4 pleaded guilty to the failing to surrender count, but not guilty to the trafficking count.

13.  The prosecution case was that D4 had approached a middle man called “Hung Gor” to arrange for D1 and D2 to pick up and deliver the “Ice” particularised in the charge.  On the night of the offence, D4 was alleged to have been in overall control of the picking up and delivery of the consignment^[3]. At the new trial, both D1 and D2 testified as prosecution witnesses against D4, on 25 and 26 March 2019.  In the summing-up of Campbell-Moffat J, the jury were instructed that D1 and D2’s testimony was direct evidence of D4’s participation in the trafficking of the “Ice” concerned^[4].

14.  D4 was eventually convicted of trafficking, by the unanimous verdict of the jury, on 29 March 2019.  On 4 April 2019, he was sentenced to 37 years’ imprisonment for trafficking, plus 4 months’ imprisonment consecutively for failing to surrender to custody, resulting in a total sentence of 37 years and 4 months’ imprisonment.

15.  In her reasons for sentence, Campbell-Moffat J considered the role of D4, as well as the significance of D1 and D2’s testimony in bringing about his conviction[5]:

“I have no doubt that these 34 kilogrammes of dangerous drugs were yours and not Hung Goh’s. That was over HK$10 million worth of drugs. You are clearly not an innocent dupe nor a foolish young man thinking he could make easy money in delivering drugs. You were much higher ranking and their 33-year sentence must be put at your door because it is clear you were content to have them take the risk in the hope that you would successfully distance yourself from the actual drugs. That might have worked if [D1] had not started to point the finger at you in the first trial and if [D1] and [D2] had not decided to finally tell the truth in order to mitigate their very substantial sentence. And who would blame them for that? You were happy for them, after all, to take all of the risk.”

The ground of appeal

16.  Both D1 and D2, through counsel, have advanced a single ground of appeal, that the assistance they provided to the prosecution in connection with D4’s eventual conviction entitled them to a reduction in their sentences passed at the first trial.

D1’s appeal

17.  In respect of the late filing of the Notice of application for leave to appeal against sentence, Ms Fanny Wong, who appeared for D1 at the appeal but not the trial, submitted that the delay was justifiable, since D1 had in the meantime testified for the prosecution at the trial against D4, which only concluded on 4 April 2019.  As we have said, Mr Lui properly did not take issue with the fact that D1’s application for leave was substantially out of time.

18.  Ms Wong referred to the comments of Campbell-Moffat J, when sentencing D4, that D1 had provided truthful testimony at the trial of D4, which had ultimately secured his conviction.  Relying on Z v HKSAR^[6], she submitted that, since D1 did not plead guilty, a further discount of about 17%, which would have made a notional overall discount of about 50%, had it included a one-third discount for plea (which it did not), should be given to D1.

D2’s appeal

19.  Mr James Sherry, on behalf of D2, originally sought to adduce fresh evidence, in the form of an affirmation by D2 and eight exhibits, pursuant to the provisions of section 83V of the Criminal Procedure Ordinance.  This material purported to detail the dangers associated with D2 giving evidence in a major drug trafficking case, which had resulted in him being placed in a protective unit of the prison system.  In view of our indication, in the course of counsel’s argument, that we were alive to the particular risks involved in the circumstances of a case such as this, which we were minded to reflect in the discount applicable for his cooperation, Mr Sherry did not pursue his application to adduce further evidence.

20.  It was submitted that the crime committed by D4 was one of great gravity, and that D2 was an important prosecution witness in bringing him to justice.  The fact that D4 had been sentenced to 37 years and 4 months of imprisonment was an indication of just how serious the offence was. The value of D2’s assistance was obviously highly significant, as Campbell-Moffat J had accepted when sentencing D4.   Mr Sherry likewise suggested that D2 should be accorded a notional discount of at least 50%, whilst acknowledging that he was not entitled to benefit from the one-third discount for pleading guilty, nor was D2 in the category of a ‘supergrass’.

The respondent’s submissions

21.  Although Mr Lui had originally contended in his written submissions that both D1 and D2 were only entitled to a further discount of some 17%, having pleaded not guilty but been found guilty before deciding to give evidence for the prosecution against D4, he rightly relaxed the rigidity of his position in oral argument, given the nature and seriousness of the case in which both D1 and D2 had testified, and the inherent risks involved in so doing.  He accepted that this was not simply a case of one defendant giving evidence against another, which, if his evidence had been instrumental in securing a conviction of the other, might in the normal course merit a 50% reduction in sentence (assuming he had pleaded guilty to the offence), but a very serious case in which a “minor player” had given evidence against a “major player”.  In the present case, two men who had been hired to transport dangerous drugs had given significant evidence, which had clearly assisted the prosecution to secure the conviction of someone very much further up the ladder of the drug trafficking hierarchy. The Court could, in those circumstances, properly assume an obvious inherent risk to the defendants in giving evidence for the prosecution as accomplice witnesses.

Discussion

22.  This case concerned the giving of crucial evidence by two men engaged to transport drugs for a fee against the person who was undoubtedly overseeing the whole operation.  Moreover, the case involved a huge quantity of “Ice” worth more than HK$10 million at street value.  It was a very significant case indeed, in which D4 was obviously a “major player” in the transaction.  In fact, the judge, when sentencing him at his trial, found that he was actually the owner of the drugs.  Whatever the position, he was clearly the organiser of a substantial shipment, which he knew was arriving in Hong Kong from beyond the jurisdiction.

23.  In HKSAR v Herry Jane Yusuph[7], we identified a number of different roles within a drug trafficking operation, but made clear[8]:

“…that these are the most common categories of trafficker likely to be encountered in practice by the courts in Hong Kong. It may be that there are some forms of trafficking which do not fit neatly or precisely into a particular category, or, indeed, others where the functions overlap to a greater or lesser extent. Where a defendant’s role and culpability fall in determining the starting point must be a matter for the sentencing judge based on the evidence before the court”.

The evidence suggested that not only was D4 the organiser of the drug trafficking operation in question, his organisation of that operation transcended international boundaries.  By contrast, D1 and D2 were effectively transportation workers, hired to collect the drugs from Repulse Bay and drive them to Yau Ma Tei in Kowloon.  In their case, the judge specifically found that “neither … actually knew where the drugs were coming from when they agreed to take part”[9].  They were more carriers than couriers, with no other connection to the drugs than conveying them from one place to another for a fee.  In our view, their roles placed them at, or even below[10], the lower end of the ‘courier or storekeeper’ bracket as identified in Herry Jane Yusuph.

24.  The question then is: what is the appropriate starting point, bearing in mind the role and culpability of D1 and D2 in the offence?  While the appropriate bracket in terms of quantity for more than 15,000 grammes of “Ice” is over 30 years’ imprisonment at the sentencer’s discretion, it must be recognised that anything above 30 years’ imprisonment is an extremely long sentence and it is, we think, neither prudent nor possible to apply a mathematical increase where vast quantities are involved, and where there are likely in future to be even larger quantities.  We recall, for example, that in R v Tsui Lai-ying and Ors[11], the court was dealing with a conspiracy to bring into Hong Kong by sea 2.8 tons of heroin base, worth then about HK$700 million, over some 18 months in 1983 and 1984. 

25.  Mr Lui has helpfully brought to our attention a table of 24 cases, which have been decided since the guidelines in Abdallah were handed down in 2009. Surprisingly, none of them has resulted in any appeal against sentence, apart from the present case, so they are, as first instance decisions, of limited value other than to give the general trend of sentences by the courts for very significant amounts of dangerous drugs.  Ten of those cases concerned quantities of cocaine, heroin or “Ice” greater than the quantities in the present case: indeed 4 of those 10 involved quantities of more than 100 kilogrammes of cocaine.  The single, highest recorded starting point of any of the 24 cases was 35 years’ imprisonment for trafficking in 422.5 kilogrammes of cocaine[12]. On the other hand, there have been five cases involving quantities of 32 kilogrammes of cocaine, 42.4 kilogrammes of heroin, 46.161 kilogrammes of “Ice”, 57.3 grammes of cocaine, and 128.4 kilogrammes of cocaine, which have received starting points of 32 years’ imprisonment.  We do not know the roles of the defendants in any of these cases, but, by way of comparison, D1 and D2 for their roles received starting points of 33 years’ imprisonment.

26.  In our judgment, given the limited role and culpability of D1 and D2, albeit in a case of great gravity, we would have assessed the starting point of D1 in respect of the quantity concerned at 30½ years’ imprisonment; and the starting point of D2, who was the more involved of the two, and the person who in turn recruited D1, at 31 years’ imprisonment. Having assessed their individual starting points, we turn to an assessment of the discount to which they are now entitled for having given evidence against D4 and secured his conviction.

27.  In our assessment, the evidence of D1 and D2 not merely strengthened the prosecution case, but was in many ways pivotal to the prosecution.  For example, in the trial against D4 before Campbell-Moffat J, only the mobile telephone records of D1, D2 and D3 were available: those of D4 were not.  It was D1 and D2’s evidence that they met with D4 in Ap Lei Chau and received his instructions in person before all of them headed off to Repulse Bay; and D2’s evidence that he had communicated with D4 by telephone on the journey from Repulse Bay to Yau Ma Tei.  Their evidence provided an important nexus between D4 and the arrival, collection and delivery of the “Ice” shipment.  Without it, the prosecution would have had to rely on the circumstantial evidence of the surveillance officers who, at best, could only say they saw D4 appearing at Repulse Bay and leaving before the “Ice” was picked up by D1 and D2; and that D4 was in the private car, which appeared to lead the light goods vehicle with the “Ice” from Repulse Bay to Yau Ma Tei.  However, he was in the front passenger seat of a private car with no dangerous drug when he was intercepted in Kowloon.  The jury would also have known that D3, the driver of the private car, was acquitted in the previous trial.

28.  In respect of D1, we would have given a discount of about 21% for having given evidence successfully against D4 in a case such as this (which would have been just over 54% had he entered a timely plea of guilty, which he did not).  That reflects the seriousness, and obvious inherent difficulties and risks of giving evidence in such a case against someone who was a major organiser of the drug trafficking operation.  The resulting sentence in his case is, therefore, one of 24 years’ imprisonment.

29.  In respect of D2, his evidence was rather more significant than that of D1 and filled in significant gaps in a highly important and very serious case.  Although we have ascribed a greater role and culpability to D2, his assistance was correspondingly more valuable than that of D1 as a result.  Again in his case, we acknowledge the difficulties and risks of giving evidence against someone who was a major organiser of the drug trafficking operation and note, in particular, that he has been moved to Siu Lam Psychiatric Centre for his own security.  We would give him a discount of about 22% (which would have been just over 55% had he entered a timely plea of guilty, which he also did not).  The resulting sentence in his case is also 24 years’ imprisonment. 

30.  We should add that we have given consideration to the fact that D2 has one previous conviction in the District Court in 2010 for trafficking in dangerous drugs, for which he was sentenced to 4 years’ imprisonment.  The judge was alive to this potential aggravating factor but, having received submissions and considered the matter carefully, he was persuaded that in view of the very lengthy sentence he was passing, the sentence should not be enhanced further.  We would not interfere with the exercise of his sentencing discretion in this matter, particularly when D2 has since assisted the prosecution in the way that he has.

Disposition

31.  For the above reasons, we granted leave to appeal against sentence out of time to D1, and allowed the appeals of both D1 and D2, resulting in each of their sentences being reduced from 33 years’ imprisonment to 24 years’ imprisonment.