HKSAR v. SZE KIN WANG

CACC 369/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 369 OF 2013

(ON APPEAL FROM HCCC NO. 466/2011)

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J U D G M E N T

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Hon Lunn VP (giving the judgment of the court):

1. The applicant seeks leave to appeal against a sentence of 9 years’ imprisonment imposed upon him by Mrs Justice Bokhary on 7 October 2013 for unlawfully trafficking on 8 July 2011 in 2,660 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2. Having pleaded guilty in the Magistracy on 16 December 2012, the applicant was committed for sentence to the Court of First Instance.On 20February 2013, the applicant confirmed that plea before Mrs Justice Bokhary and sentence was adjourned so that the applicant could testify as a witness for the prosecution in the trial in the Court of First Instance of two defendants charged with an offence of conspiracy to traffic unlawfully in dangerous drugs, which conspiracy encompasses the period May to July 2011 and concerned not only the 2,660 grammes of ketamine in which the applicant had unlawfully trafficked but also, what the judge described in sentencing them, an unknown quantity of dangerous drugs.  The applicant testified in the trial of those two defendants, who were each convicted.[1]  Today, Mr Franco Kuan has confirmed on behalf of the respondent that the applicant’s evidence was “vital” to their convictions.  On 19 August 2013, Mrs Justice Bokhary sentenced them to 20 years’ and 22 years’ imprisonment respectively.

The Facts

3. The applicant admitted that in the early afternoon of 8 July 2011, he was intercepted by two police officers as he alighted from a cross-border coach at the junction of Arran Street and Shanghai Street, Mongkok.  The brown bag which he was carrying was found to hold 10 packets of a powder containing the 2,660 grammes of ketamine, the subject of the charge.  Having been arrested and cautioned, the applicant admitted that, having become bankrupt, he had been tempted into delivering the ketamine from the Mainland into Hong Kong for a reward of $6,000.

Reasons for sentence

4. There was no dispute that the applicant was a 35-year-old married man, with two children, who had no previous criminal conviction.

Starting point for sentence

5. The judge stated that she took what she described as a ‘starting point’ of 18 years’ imprisonment, which she said included an enhancement of sentence to reflect the importation of the dangerous drugs into Hong Kong from the Mainland.

Discount

6. The judge said that, having regard to “everything that had been urged” on the applicant’s behalf, she afforded the applicant a discount of 50% from the stipulated starting point.  In particular, she identified the applicant’s plea of guilty and the fact that he had given evidence for the prosecution as matters she had taken into account.

Grounds of appeal against sentence

7. Mr Victor Lee submitted on behalf of the applicant that the judge had erred in failing to have sufficient regard to the assistance afforded to the authorities by the applicant and to the degree of risk that the applicant had exposed himself and his family, so that the sentence imposed on the applicant was manifestly excessive.

8. In support of that application, by way of Notice of Motion Mr Victor Lee sought to put fresh evidence before the court in the form of affirmations made by the applicant and his mother, Madam Chan Kuen Kuen, on 28 and 22 April 2014 respectively.  The respondent did not oppose that application.  Notwithstanding our subsequent observations that much of this material was available but not put before the judge at sentencing, given that some of the material relates to the post-sentencing period we are prepared to receive all of that evidence.

9. The applicant affirmed that whilst in custody at Lai Chi Kok Reception Centre before he gave evidence in the trial ofChau Yan Kiu and Ma Ka Chun, for his own safety he had been detained in a protected unit within Lai Chi Kok Reception Centre.  Of his relationship withChau Yan Kiu and Ma Ka Chun, the applicant said that having recruited him to import the ketamine into Hong Kong from the Mainland they were aware of his home address, that of his mother and their respective mobile telephone numbers.

10. There was no dispute that the applicant had been named as a prosecution witness in a trial in the Magistracy involving a conspiracy to defraud involving six defendants.[2]  However, in the event, the applicant was not called as a witness for the prosecution.  All six defendants were convicted, three of them at trial in September 2013 and three on their own pleas of guilty.  Similarly, there was no dispute that the applicant had provided a non-prejudicial statement to the police on 30 September 2013 in which he identified four persons who might be involved in an unlawful trafficking in dangerous drugs in Kowloon West Region.  However, those persons were already known to the police and no tangible results eventuated.

11. Madam Chan Kuen Kuen affirmed that following the arrest of the applicant she had received envelopes deposited into her letterbox at her home on two occasions, which she discovered contained dead insects.  On both occasions between September 2013 and January 2014 she had received abusive telephone calls in the early hours of the morning, in which reference was made to her status as the mother of the applicant.  As a result, she was concerned for the safety of her family.

A CONSIDERATION OF THE SUBMISSIONS

12. It is to be noted that in mitigation, although reference was made to the assistance offered by the applicant to the authorities, counsel for the applicant made no reference to the conspiracy to defraud case which had recently concluded in the Magistracy.  On the other hand, counsel did provide the Court with a memorandum dated 30 September 2013 from a police officer on behalf of the Commissioner of Police to a Senior Public Prosecutor in the Department of Justice in which reference was made to the fact that, at his request, the applicant had been interviewed on 30 September 2013 and had provided information in respect of unlawful trafficking in dangerous drugs.  As the judge noted, the position at the date of sentencing in respect of that information was that the applicant had “provided information the outcome of which we do not know”.

13. It is clear from a letter dated 19 February 2014 to the applicant’s solicitors from the Police District assigned to investigate the information provided by the applicant in the interview of 30 September 2013 in respect of four persons who might have been involved in unlawful trafficking in dangerous drugs that the investigation produced “no tangible results”.  Accordingly, that assistance is of no benefit to the applicant.

14. On 16 June 2014, for the first time, the court was provided with information about the nature of the conspiracy to defraud in caseKTCC 2097/2013 and the circumstances in which the applicant was not called as a witness for the prosecution.  The respondent provided the ‘Brief Facts’ used for the plea of the 4^th and 5^th defendants in that trial.  The offence alleged was constituted by an agreement between various persons to provide a visitor service to inmates detained in Lai Chi Kok Reception Centre, for which payment was received.  Such visits afforded an opportunity to pass messages to inmates and to provide inmates with cigarettes and food.  It appears that the applicant was to give evidence for the prosecution of visits by the 4^th defendant who falsely represented to Correctional Services officer that she was his friend.  If the truth had been known to the officer the visit would not have been permitted.  The 4^th defendant, an employee of IPS-Care Company, had been approached by an undercover police officer and paid $392 to represent that she was a friend of the applicant and to make a visit to him in which she delivered food and cigarettes for his use.  In the event, the 4^th defendant pleaded guilty and the applicant was not called as a witness at the trial.  Counsel for the respondent confirmed that having been approached by police officers, the applicant played a role in receiving the visit of the 4^th defendant and was prepared to testify that she was not known to him.

15. A measure of the relative lack of seriousness of the offence is perhaps to be inferred from the fact that, on being convicted on their pleas of guilty, three defendants were sentenced to 2 months’ imprisonment only.

16. More fundamentally, no explanation has been provided to the court as to why this material, which was clearly available at the time of sentencing, was not put before the trial judge, if it was at all relevant.  Similarly, the fact that the applicant was afforded a measure of protection in a protected unit in Lai Chi Kok Reception Centre before giving evidence in the trial in HCCC 433/2013 was information available at the time of sentencing, but was not adverted to in mitigation.

17. In Z v HKSAR [3] Li CJ, with whose judgment all the other judges agreed, adverted to the long-standing practice of the courts in Hong Kong affording a discount in sentence to a defendant, who not only pleads guilty but gives evidence in the trial(s) of others:

“ Where an appellant had not only given information but had proceeded to give material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat-Fan (CACC 414/1999 unreported, 30 May 2001). Where the level of co-operation is such as to place the appellant in the “supergrass” category, a maximum discount of two-thirds has been used. R v Chan Fu-kui [1986] HKLR 967 at 968, HKSAR v Ng Shek-Yu (at p 3).”

18. It is clear that the applicant fall squarely within the range of discount of 50% afforded to defendants who, having pleaded guilty, give truthful evidence for the prosecution at the trial of others.  Certainly, he does not come anywhere close to the “supergrass” category.  Accordingly, we are satisfied that the applicant was entitled to no more than a 50% discount from the sentence taken as the starting point.

19. Counsel for the respondent is correct to point out that the starting point taken for sentence for the applicant was low.  Unfortunately, the judge did not follow the well-established series of steps to be taken in sentencing in the circumstances obtaining in the case of the applicant.  First, the starting point is to be identified.  Then, the enhancement of sentence for importation is to be stipulated, thereby allowing the resulting total sentence to be identified.  Finally, the appropriate discount of sentence is to be stipulated, so that the sentence may be imposed on the applicant.

20. With respect to the judge, she conflated the first two steps.  As a result, it is not known what starting point she took for sentence or by how much she enhanced that starting point.

21. The guidelines for sentencing in cases of unlawful trafficking in ketamine articulated in the judgment of the court in the Secretary for Justice v Hii Siew Cheng [4] provide for the imposition of sentences of 14 years’ imprisonment and upwards for unlawful trafficking in amounts over 1,000 grammes.  In HKSAR v Sin Cheung Kin [5] this Court observed that, where large quantities of ketamine were involved, although it was not appropriate to enhance the starting point proportionally, nevertheless “the larger the quantity of drug use, the more severe the sentence will be.”[6]  The Court went on to suggest that unlawful trafficking in 2,000 and 3,000 grammes of ketamine should attract sentences of imprisonment of 18 and 20 years respectively.  However, as was made clear in the judgment of this Court in HKSAR v Chow Yau Ching [7] in HKSAR v Sin Cheung Kin the Court was not purporting to lay down new guidelines for sentence.

22. It is to be noted that neither of those cases involved the aggravating factor in the commission of the offence of importation of the dangerous drugs, which called for an enhancement of sentence.  In HKSAR v Abdallah[8] this Court identified four aggravating factors in unlawful trafficking in heroin, including an “international element”, which called for an enhancement of the starting point taken for sentence.  In the judgment of the Court, Stuart-Moore VP suggested that it was not envisaged that the enhancement would be less than 2 years’ imprisonment for unlawful trafficking in above 1 kg of heroin.

23. Given that the applicant was convicted of trafficking unlawfully in no less than 2,660 grammes of ketamine by way of importation, it is clear that the sentence of 18 years’ imprisonment, which the judge stipulated to reflect both those factors, was a low sentence.

Conclusion

24. In the result, we are satisfied that in affording the applicant a discount of 50% for his assistance to the authorities and for his plea of guilty the applicant was afforded an appropriate discount of sentence.  The applicant was the undeserving beneficiary of the low stipulated enhanced starting point for sentence taken by the judge.  So that the resulting sentence of 9 years’ imprisonment was most certainly not manifestly excessive.  Accordingly, we dismiss the application for leave to appeal against sentence.

[1] HKSAR v Chau Yan Kiu and Ma Ka Chun (HCCC 433/2012).

[2] KTCC 2097/2013.

[3] Z v HKSAR (2007) 10 HKCFAR 183 at 194 F-G, paragraph 23.

[4] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD.

[5] HKSAR v Sin Cheung Kin [2013] 1 HKLRD 627.

[6] HKSAR v Sin Cheung Kin [2013] 1 HKLRD 631, paragraph 23.

[7] HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 at 646, paragraph 22.

[8] HKSAR v Abdallah [2009] 2 HKLRD 437 at page 453, paragraphs 42-3.