HKSAR v. LOK KWOK WAH

CACC 275/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 275 OF 2002

(ON APPEAL FROM HCCC NO. 34 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 In May 2002, this applicant was convicted after trial of three counts of trafficking in dangerous drugs. The trial was conducted before Deputy High Court Judge Wong SC and a jury. The applicant now seeks leave to appeal out of time against the sentence imposed on the third count.

2 The facts fall within a narrow compass. The evidence which the jury must have accepted was that in March 2001 an informant called Tom met the applicant who offered him 10,000 tablets of the drug commonly called ecstasy at a price of $34 per tablet. Tom relayed this offer to the ICAC who then mounted an operation for the applicant's apprehension. In the course of this operation the applicant was introduced to two undercover agents called Ah Wah and Ah Jack. Ah Wah said that he wanted 100 sample tablets and on 4 April 2001 the applicant supplied a number of tablets. They turned out to be less than the 100 sought and so on the following day the applicant supplied the balance.

3 These two supplies formed the subject of the first and second counts of the indictment. The first alleged trafficking in 69 tablets containing a total of 3.45 grammes of ketamine and 12.12 grammes of methylenedioxymethamphetamine ("ecstasy"); and the second trafficking in 31 tablets of a total of 0.93 grammes of ketamine and 5.84 grammes of ecstasy.

4 On 11 April, according to the evidence, Tom asked the applicant to supply the 10,000 tablets and the applicant said that he could reply the following day. He did so, and he said that the price would be $40 per tablet. The next day and the days following there were several conversations between Tom and the applicant, with the applicant insisting on payment before delivery, an insistence which Ah Wah was not prepared to accept.

5 On 26 April 2001, the applicant telephoned Tom and told him that the sample of 100 tablets which he had supplied carried a brand name "CC" which was out of stock but that he had another type of brand "CD" the quality of which was about the same as "CC". He said that he could supply another sample of 100 tablets.

6 On 9 May 2001 the applicant met Ah Wah and Tom in a restaurant where he said that the price for 10,000 tablets would be $40 per tablet. There was then an agreement as to where they would meet to count the money, and to count the tablets. They met the next day, but the applicant suspected that he was being followed by officers, and delivery of the drugs was not made.

7 The third count, with which this application is concerned, concentrates on the events of 9 May at the restaurant. It alleged that the applicant there offered to traffick in 10,000 ecstasy tablets, contrary to section 4(1)(b) of the Dangerous Drugs Ordinance, Cap. 134.

8 The applicant was aged 35 years at the date of these offences. He has an appalling criminal record, stretching back to 1983. This was the fifth occasion upon which he had been convicted of trafficking in dangerous drugs. In January 1987 he received a sentence of three years' imprisonment and in February 1987 of eighteen months' imprisonment for trafficking; in 1991 for several trafficking offences, a total of thirteen years' imprisonment; and on 16 January 2002 he received a sentence of six years and eight months for trafficking, an offence committed in August 2001, that is after the offences with which we are now most directly concerned.

9 In this case, the judge sentenced the applicant to a term of two years' imprisonment in relation to each of the first two counts and ordered that they run concurrently. No complaint is made in respect of those sentences.

10 In relation to the third count, the judge assumed a narcotic content of 2,200 grammes. He did this by noting that the 100 tablets supplied in April were shown to have a narcotic content of 22.31 grammes, and he extrapolated from that for the drugs in the third count, noting that the applicant had told the buyer that the quality of the drugs to be supplied was approximately the same as those in the sample which he had delivered in April. He noted that the case of HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46 suggested a sentence of eight years and upwards for a quantity of over 800 grammes, and he noted also the applicant's long history of drug trafficking. He said that he was satisfied "that the defendant fully intended to carry out the offer and was in the middle of completing it. But for the fact that the defendant discovered that law enforcement officers were observing the café where the transaction was to take place, no doubt the defendant would have completed the transaction." He said that having considered all these factors he adopted a starting point on the third count of twelve years' imprisonment. He sentenced the applicant to a term of twelve years' imprisonment on the third count.

11 There then follows a rather confused statement of how this sentence was to run with the two other counts and with the sentence imposed in January 2002 of six years and eight months. It is quite clear however that what the judge intended, for this he did say in terms, was a total, including the sentence imposed in January, of fifteen years and eight months. The imprecision in expression is that he said that three years of the sentence on count 3 was to run concurrently with the sentences on counts 1 and 2 and with the sentences on the other cases, adding:

"That will make a final total sentence of 9 years for this case and 15 years and 8 months for these two cases."

The reference to nine years for this case was an obvious error; and it is not the basis of any complaint before us, but it needs in any event to be mentioned. What the judge intended was to order the sentences for all the counts on this case to run concurrently, making a total of twelve years; and to order that nine years of that twelve years sentence should run consecutively to the term of six years and eight months, the balance to run concurrently. That, in any event, is the effect of the order which he in fact made.

12 The first ground of appeal is that the judge erred in applying the tariff in Lee Tak-kwan because, so it is said, that was a guideline which was directed at trafficking proper and not at offering to supply. In the context of a case such as this, the point is academic, because the judge found, as he was entitled to, that the drugs were, without question, to be supplied. It is said that it is not difficult to envisage cases where quantity is not mentioned, in which event, the question is asked: How can a sentence based upon quantity be imposed? It is not necessary for us to go into that, for it is, as we say, academic to this case. What was offered in this case was known, namely 10,000 tablets at a cost of $400,000. The legislature has prescribed the same penalty for an offence of offering to supply as for trafficking and, although each case must be adjudged on its own facts, we see no basis in this case to distinguish between the criminality of the two types of act.

13 The true complaint is the measure of drugs upon which the judge proceeded. What is argued is that the judge could not know what was the narcotic content of the drug to be supplied, since it had not in fact been supplied. We do not think that the point is a sound one. The judge, whom we note heard argument on the point, had heard the evidence in this trial in detail. He knew that in April a sample had been delivered, and that a few days later the applicant had said that for 10,000 tablets of that type the cost would be $40 per tablet. Whilst in late April the tablets to be supplied were of a different brand, the applicant had himself said to buyers who had shown care to check their product - there was evidence of a shortfall which they discovered in the amount supplied in April - and who could be expected thoroughly to check when spending $400,000 - that the quality of the new brand was to be about the same and the price precisely the same. The judge was entitled, in our judgment, to work on the basis which he adopted. In any event, one has to look at this matter in the round. Here was an offer for the supply of a very large quantity of tablets indeed, the narcotic content of which was unlikely to be very different from that of the sample; and the overall price illustrates the type of deal with which the court was faced. Moreover, the applicant had a particularly bad record of trafficking in dangerous drugs, for which reason the judge was entitled to take a higher starting point. We are satisfied that it cannot be said that a starting point of twelve years was, in such circumstances, manifestly excessive.

14 Finally, it is argued that the judge erred in concluding that but for the applicant's discovery of the observation of the café the applicant would have delivered the drugs. There is no evidence, it is said, that the applicant did discover that officers were observing. The applicant had told Ah Wah that he was being followed. He had already supplied samples. The suggestion made in argument today by Mr Wong that the applicant may have been duping the buyers has no evidential basis whatsoever. Much in this case had taken place to demonstrate that a drug deal was genuinely under way, and we see no illogicality in the judge's finding.

15 The application for leave to appeal against sentence is without merit. The only alteration we shall make to the orders made by the judge is to direct that the sentence of 12 years' imprisonment on count 3 is to run concurrently with the sentences imposed on counts 1 and 2; and that of that total of 12 years, three years is to run concurrently with, and nine years consecutively to, the sentence imposed in High Court Case 408 of 2001; a total for the two cases of 15 years and eight months' imprisonment, which is the total at which the judge arrived. In so far as is necessary, leave is granted only in order to enable us to make this clarifying order. The effect of the applicant's appeal, however, is that it fails.