HKSAR v. LEUNG KING HUNG

CACC 128/2022 [2024] HKCA 69

On appeal from [2022] HKCFI 2619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 128 OF 2022

(ON APPEAL FROM HCCC NO 235 OF 2021)

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J U D G M E N T

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1.  On 29 July 2022, following a trial before Barnes J (the judge)  and a jury the applicant was convicted of conspiracy to traffic in dangerous drugs. It was alleged that, between 5 and 15 July 2020, he conspired with Kwong Shun Pan, Rhonaldo, Kwong Yat Tung, a person known as “Amy”, a person known as “Tai Tau” and other persons unknown to traffic in dangerous drugs, namely methamphetamine hydrochloride (commonly known as Ice), ketamine and cocaine. He was sentenced to 22 years’ imprisonment.

2.  On 24 August 2022, the applicant filed a notice of application for leave to appeal against conviction and sentence, in which he set out home-made grounds of appeal.  These grounds were substituted by Perfected Grounds of Appeal against Conviction filed on 24 November 2023 by Mr Leung Chun Keung, and Perfected Grounds of Appeal against Sentence filed on 23 December 2022 by Mr James Tze.

The brief facts

3.  At the time of the offence, Kwong Yat Tung (PW2)  was 13 years of age and Kwong Shun Pan (PW1)  was 15 years of age.  The applicant was 24 years of age.

4.  In July 2020, PW2 agreed to deliver drugs for other persons.  PW2 was given some dangerous drugs and told to keep them at his home and wait for further instructions.  On 10 July 2020, PW2 met by chance a former schoolmate, PW1, and recruited him to join in the trafficking of dangerous drugs.  On 14 July 2020, PW2 received instructions from “Amy” to deliver drugs on that day.  PW2 contacted PW1 to come to his home to arrange the deliveries. Later that day, PW1 and PW2 delivered the drugs to customers at various locations in Hong Kong.  They then went to a hotel room at California Hotel in Tsim Sha Tsui to rest, which had been rented by PW2’s friend.  At about 10 pm, PW2 was instructed to go to Diamond Hill to hand over the money collected for the payment of the drugs to his superior or boss.  Both PW1 and PW2 went to Diamond Hill and met the applicant and another male called “Tai Tau”.  After handing over the money to the two men, “Amy” telephoned PW2, claiming that the money did not tally with the amount of drugs sold.  As a result, “Tai Tau” beat up PW2 in the applicant’s presence.  The four of them then returned to the hotel room at California Hotel to check the quantities of the remaining drugs to see if they tallied with the money received for the drugs sold.  After this was done, “Amy” telephoned PW2 again, telling him that the applicant and “Tai Tau” were satisfied that the quantities of the remaining drugs tallied with the drugs sold.

5.  They left the hotel room together but happened to see several uniformed police officers on Nathan Road in Tsim Sha Tsui.  They split up into two groups.  The applicant was with PW1, who was carrying the remaining drugs, and Tai Tau was with PW2.  The remaining drugs consisted of 44.76 grammes of Ice, 0.28 gramme of cocaine and 9.42 grammes of ketamine. 

6.  The police officers observed the applicant and PW1 behaving suspiciously.  They stopped and searched them, and found inside a bag that PW1 was carrying a number of packets of dangerous drugs.  There was also a cigarette box, containing three cigarettes with cannabis inside.  No drugs were found on the applicant, but he had in his possession $27,300 cash in his back pocket and $1,878.20 cash in his wallet. 

7.  The police also stopped and searched “Tai Tau” and PW2, but they found nothing suspicious on them, and after enquiries, they were released.

8.  “Tai Tau” blamed PW2 for causing them trouble and contacted three other persons to meet him.  After obtaining PW2’s key and telephones, the three persons took him to a place where they beat him up.  Two other persons joined them, and they continued beating PW2.  They then contacted PW2’s friends and relatives, demanding money from them to set him free. Eventually, PW2 was set free after he agreed to work for “Amy” as compensation.

9.  In the meantime, PW1 disclosed to the police that he became involved in trafficking the drugs at the instigation of PW2.  He directed them to a hotel room where PW2 was arrested.  PW2 also disclosed to the police his involvement in the trafficking of the drugs.

Leave to appeal against conviction

10.  In respect of the leave application to appeal against conviction, Mr Leung advances four grounds of appeal.

11.  Ground 1 avers that the judge failed to direct the jury that the guilty pleas of PW1 and PW2 were not evidence against the applicant.  Mr Leung argues that the judge should have directed the jury in terms of Specimen Direction 116: Guilty plea of another defendant.  This direction instructs the jury that they must not be influenced in its decision in the case of another defendant’s conviction or guilty plea.  He accepts that the judge gave an appropriate accomplice warning about the evidence of PW1 and PW2. 

12.  As I understand his submission, Mr Leung contends that the admission of guilt of PW1 and PW2 to the charge may have enhanced their credibility and reliability as witnesses, which were relevant because of the inconsistencies in evidence between them, and hence the judge should have given a 116 direction.

13.  This ground is not reasonably arguable for the simple reason that both PW1 and PW2 testified at the applicant’s trial and admitted that they were involved in the trafficking of drugs[1].  The defence made an issue that they had pleaded guilty to the charge and were assisting the prosecution to obtain a lesser sentence.  The judge gave appropriate warnings to the jury that they should approach the evidence of PW1 and PW2 with care and caution[2]. She also extensively addressed the inconsistencies and discrepancies in the evidence of PW1 and PW2, reminding the jury to bear them in mind and approach their evidence with caution[3].

14.  Ground 2 complains that the judge gave an imbalanced summing-up when directing the jury on whether the applicant was a party to the conspiracy.  Mr Leung argues that the judge did not direct the jury that the applicant’s mere presence or mere knowledge of the drug dealings of others was insufficient to find the applicant guilty of the offence.

15.  The judge gave very clear and precise directions on the offence of conspiracy to traffic in dangerous drugs, reminding the jury that they had to be sure the applicant agreed with others to traffic in the drugs and intended that the conspiratorial agreement be carried out[4].  Towards the end of her summing-up, the judge repeated that the jury had to be sure that the applicant was a party to the agreement to traffic in the drugs and that it was not enough even if the applicant’s actions were very suspicious[5].  In her summary of the evidence and distillation of the issues regarding the applicant’s conduct in the present case, the judge emphasised with the jury that they consider the whole of the evidence in deciding whether the applicant was a party to a conspiratorial agreement to traffic in the drugs.  The jury would not have been left with the impression that the applicant’s mere presence or mere knowledge of the drug dealings of others may have been sufficient to find him guilty of conspiring to traffic in the drugs.

16.  I am not persuaded that this ground of appeal is reasonably arguable.

17.  Ground 3 complains that the judge failed to warn the jury not to be influenced or prejudiced by PW2’s evidence that he was beaten up and asked to compensate by Amy after the applicant and the police had arrested PW1.

18.  The evidence of the beatings was part of the background to the case and relevant to the events evidencing the conspiratorial agreement as alleged by the prosecution.  As PW2 testified, he was beaten by members of the drug syndicate because of his involvement in drug transactions for them, namely because he had been accused of not handing over all the money collected for the drugs sold and getting them into trouble.  The beatings supported PW2’s evidence of dealing with others as part of a conspiratorial agreement with them to traffic in the drugs.

19.  It is not insignificant that defence counsel did not raise any objection to PW2’s testimony of the beatings.  It was clearly relevant evidence germane to the conspiratorial agreement alleged by the prosecution.

20.  Ground 4 is a general complaint that in the circumstances of the case the conviction is unsafe and unsatisfactory. 

21.  I find no support for the proposition that the conviction was unsafe or unsatisfactory.

Leave to appeal against sentence

22.  In respect of the leave application to appeal against sentence, Mr Tze advances three grounds of appeal.

23.  Ground 1 complains that the judge failed to reach a fair conclusion about the quantity of drugs that were agreed to be trafficked as part of the conspiracy.

24.  Ground 2 avers that the 2 years’ enhancement of the notional starting point was manifestly excessive.

25.  Ground 3 is a general complaint that the sentence of 22 years’ imprisonment for the offence was manifestly excessive.

Grounds 1 and 3

26.  It is appropriate that I deal with Grounds 1 and 3 together.  Mr Tze submits that the judge did not correctly assess the evidence in determining the quantities of drugs involved in this conspiratorial enterprise when adopting an appropriate starting point for the offence on which the applicant was convicted.  He contends that this led the judge to impose an overall sentence of 22 years’ imprisonment, which was manifestly excessive.

27.  The judge concluded that whilst the applicant was not the mastermind or high up in the syndicate, he nevertheless played an important role.  She adopted a starting point of 20 years’ imprisonment, taking into account the scale of the operation and the role played by the applicant. She enhanced the sentence by 2 years to 22 years’ imprisonment because of the involvement of two minors.

28.  The judge described the criminality involved in the following terms:[6]

“The evidence showed that the defendant is part of a syndicate supplying dangerous drugs locally. Members of the syndicate made use of youngsters to do their dirty business.

In the present case, Ah Tung [PW2] picked up the dangerous drugs first and kept them at his home waiting for instructions. Then, on 14 July, he received instructions to deliver kinds of dangerous drug of different quantities to various customers at different locations.

In using youngsters like Ah Tung, the other members avoid the risk of being caught with the dangerous drugs. After the youngster, in this case, Ah Tung, had finished delivering dangerous drug, members of the syndicate collected the money generated from the sale of the dangerous drugs.

  According to Ah Tung, he was beaten up by members who accused him of not having the correct amount of money to correspond the number of packets of dangerous drugs sold.  Ah Tung was further beaten up when he was accused of causing the syndicate trouble when Ah Pan [PW1] and the defendant were arrested.  No less than another five men were involved in beating up Ah Tung near Choi Hung.  And he was further beaten up at the water catchment area by three of the five men.  One even used a metal pipe to hit him.  And Ah Tung finally agreed to work for the syndicate as compensation.  So one can see the length this syndicate goes to commit the serious crime of trafficking in dangerous drugs.”

29.  The applicant provided no meaningful mitigation on his behalf.  At the time of the offence, he was single and unemployed.  He had prior convictions for acting as a member of a triad society, trafficking in dangerous drugs and theft.

30.  An important consideration when sentencing offenders for drug offences is the type and quantity of drugs involved.  In cases of substantive offences alleging possession and trafficking of a dangerous drug, the nature and quantity of the drug seized by the law enforcement agency will have been reflected in the charge.  However, a difficulty arises when the case involves an inchoate offence.  In such circumstances, the sentencing court is required to fairly and accurately assess the evidence to determine the nature and quantity of the drugs that were trafficked or agreed to be trafficked.  The objective of the exercise is to arrive at a just and appropriate sentence for the crime that has been committed.

31.  The issue in the present case is whether the judge has made a fair and accurate assessment of the quantity of the drugs agreed to be trafficked in adopting an appropriate starting point for the offending involved.  The quantity of drugs involved of course is only one factor, albeit an important one, when sentencing an offender for a drug offence.  As emphasised in HKSAR v Herry Jane Yusuph[7] an important step in sentencing for offences of trafficking in dangerous drugs is an assessment of the defendant’s role and culpability based upon the evidence.

32.  In her comprehensive sentencing remarks, the judge spelt out the relevant principles and considerations that she took into account in determining the sentence to be imposed on the applicant.  The only issue in her approach is the determination of the starting point of 20 years’ imprisonment.  Mr Tze argues that a critical factor determining the starting point is the quantity of drugs involved.  He points to the remaining drugs seized by the police, which, according to the relevant sentencing guidelines, would correspond to a starting point of about 10 years and 8 months’ imprisonment.  He argues that even allowing for the fact that there were more drugs involved than those seized, the starting point of 20 years’ imprisonment was excessive based on the relevant sentencing guidelines. 

33.  There are various factors that the judge took into account that obviously had a bearing on the level of criminality involved, such as the nature and size of the operation, which was carefully structured and elaborate.  No doubt the judge also took into account that not for the police intervention this drug trafficking syndicate would have continued its operation.  Whilst the judge referred to the exploitation of minors, she treated this as an aggravating factor when determining the applicant’s sentence.

34.  I am persuaded that these grounds are reasonably arguable.  However, the criminality involved was very serious, and the exploitation of minors would no doubt have a significant bearing on the resultant sentence, whether assessed as part of the criminality or as an aggravating factor.  It may be after an overall assessment of the role and culpability of the applicant that the sentence imposed on the applicant was within the appropriate range of penalties.  I should also point out that it appears the judge did not take into account the applicant’s previous conviction in 2015 for trafficking in a dangerous drug.  These are matters for the Court of Appeal to consider. 

Ground 2

35.  Mr Tze contends that the enhancement of 2 years for the exploitation of two minors (a person who has not attained the age of 18 years)  as an aggravating factor had already been taken into account by the judge in the operation of the drug syndicate involved.  He also suggests that the enhancement was too high. 

36.  I do not agree that the judge took into account the exploitation of minors as both an aggravating factor and an element of the criminality involved.  She only considered the exploitation of minors as an aggravating factor when determining the sentence of the applicant.  In the circumstances, the enhancement of 2 years for the exploitation of minors was not inappropriate.  Depending on an overall assessment of the criminality involved and the circumstances of the case, an enhancement for the aggravating factor of involving a minor in a crime should be substantial in order to be an effective deterrent and an appropriate reflection of the community’s opprobrium. See HKSAR v Ho Pak Hong[8].

37.  I do not consider this ground to be reasonably arguable.

Conclusion

38.  It follows from what I have said that I refuse the applicant leave to appeal against his conviction.  I do not find the grounds of appeal advanced on his behalf to be reasonably arguable.  I grant the applicant leave to appeal against his sentence in respect of Grounds 1 and 3, which I find to be reasonably arguable, but not in respect of Ground 2, which is not reasonably arguable.

39.  The applicant is reminded of his right to renew his application for leave to appeal against conviction on all grounds and against sentence in respect of Ground 2 to the Court of Appeal, but he is also informed that the Court has the power to order loss of any time he has served in custody pending the hearing of the appeal, if it were to come to the view that there was no justification for the renewal of the application.