HKSAR v. WONG CHUN HIN

[English Translation - 英譯本]

CACC 381/2016

[2018] HKCA 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO. 381 OF 2016

(ON APPEAL FROM HCCC 458/2015)

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REASONS FOR JUDGMENT

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

Introduction

1.  On 30 November 2016, the applicant (Wong Chun Hin) appeared before Li J (the trial judge) and pleaded guilty to one charge of conspiracy to traffic in a dangerous drug. He was then sentenced to 17 years and 7 months’ imprisonment. The applicant applied for leave to appeal against sentence. At the end of the hearing, we granted the applicant leave to appeal against sentence and allowed his appeal. The 17 years and 7 months’ imprisonment imposed on the applicant was reduced to one of 16 years and 7 months. Below are the reasons for our judgment.

The Facts

2.  On 28 April 2015, police officers intercepted a New Territories taxi KK9691 in the car park of Sun Kong Hotel, Yuen Long. At the time, apart from the driver, Tse Tung Sing [transliteration] (Tse) was in the front passenger seat of KK9691, the other passenger was in the rear seat, and next to him/her was a cardboard box containing a carton for a bread maker and other miscellaneous items. Inside the carton containing the bread maker, there was another carton containing two packs of crystalline solid of “ice” with a street value of around $430,000. The total weight of the crystalline solid in question was 997 grammes containing 976 grammes of “ice”. The English words “Refined Chinese Tea” were printed on the outside of the carton containing the “ice” in question.

3.  Tse admitted that out of momentary greed, he agreed to send out the “ice” by SF Express for “Lok Chai” [transliteration] for a reward of a few thousand dollars. Afterwards, Tse clarified that he, in fact, was assisting the applicant in drug trafficking. He said after he had come to know the applicant in early March 2015, the applicant indicated that he could give him a job that would earn him quick money but would involve dangerous drugs. Afterwards, on 27 April 2015, Tse went to a room in Sun Kong Hotel rented by another defendant. Following the applicant’s instructions by phone, Tse first packed the “ice” in question in a carton, left the carton in the hotel room and then returned home. The following day, Tse asked a friend to go with him to the hotel to retrieve the carton containing the “ice” intending to send it to Australia by post.

4.  Under arrest and caution, the applicant admitted that he “told the young chap to send the ‘ice’ overseas by post”. In a video-recorded interview with police officers, the applicant further admitted that he knew Tse, and that in the incident he was the one who gave Tse instructions for dealing with the dangerous drugs. The applicant said that the “ice” in question came from “Fai Chai” [transliteration]. On Fai Chai’s instructions, he told Tse to fetch and pack the dangerous drugs and further send them to Australia by post. The applicant said Tse and he travelled by car to Sun Kong Hotel, and he intended to instruct Tse to rent a room. However, as Tse was under the age of 18, he had to get another defendant to rent a room. The applicant picked up that defendant, took him to Sun Kong Hotel and gave him the money to rent a room. After that defendant had succeeded in renting a room, the applicant told Tse to pack the “ice” in the room and put the packed dangerous drugs in a carton to be sent to Australia by post the following day.

5.  At the time of the offence, Tse was 17 years old, educated up to Form 1, not a drug addict and with no criminal record. The applicant was 20 years old with 9 criminal convictions including serious offences of possession of dangerous drugs, offering to traffic in a dangerous drug, wounding with intent, etc. He had been sentenced to imprisonment three times. In mitigation, it was admitted that the applicant was a drug addict. It was accepted that the applicant committed the offence of offering to traffic in a dangerous drug whilst he was on bail for the present case. In fact, the applicant committed the offence in the present case whilst he was on bail for offering to traffic in a dangerous drug offence.

Mitigation

6.  It was submitted that at the time of the offence, the applicant was young, under the age of 21, so he could be easily influenced. It was claimed that the mastermind was someone else, and the applicant was used by the other mastermind for drug trafficking activities.

7.  It was accepted that the case involved aggravating factors like international crime and the use of a minor to commit crime. However, the defence was of the view that the level of enhancement should not be too high for the reason that the applicant was also used by others to commit the crime.

Decision of the trial judge

8.  In accordance with the sentencing guidelines set down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the trial judge, on the basis of the trafficking in 976 grammes of “ice”, considered the starting point to be 21 years and 11 months. The trial judge considered that the two factors of an international crime and use of a minor to commit crime should enhance the sentence by 1 year and 6 months and 3 years respectively. In the result, the total starting point applicable to the applicant was 26 years and 5 months. The trial judge reduced the sentence by one third to 17 years and 7 months on account of the applicant’s guilty plea.

Ground of appeal

9.  Mr Bernard Chung, counsel for the applicant, agreed that it was correct to adopt the starting point of 21 years and 11 months and to enhance the sentence by one and a half years for an international crime. However, the further enhancement of 3 years by the trial judge because of the use of a minor to commit crime was too high. That resulted in a final sentence which was manifestly excessive. In support of his stance, Mr Chung cited HKSAR v Chan Ka Shing [2012] 2 HKLRD 214 and HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017. It was emphasized that the four and a half years’ enhancement adopted by the trial judge in respect of the two aggravating factors, at a level of enhancement of 21%, was too high. Given that the dangerous drug in question was “ice” of less than 1,000 grammes, the total starting point of 26 years and 5 months was too severe. Mr Chung asked this Court to reduce the applicant’s sentence and to set the guideline for the level of enhancement for the use of a minor to commit crime.

Discussion

10.  Section 56A of Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong, expressly provides that use of a minor in drug trafficking entitles the court to pass a more severe sentence. The provision, however, does not specify the level of enhancement of sentence.

11.  This Court should first point out that use of a minor in drug trafficking is an extremely evil act for the reason that it would result in the conviction, long-term imprisonment and loss of future prospects of the mentally immature minor who is being used. A robust approach must be taken against such an evil act to protect minors from being harmed.

12.  In considering the range of enhancement, the court is required to take account of the particular circumstances of the individual case. The factual background relating to the enhancement of sentence in respect of this factor can vary to a great extent, and therefore it is not appropriate for the court to give explicit guidelines for the levels of enhancement. As a drug trafficking offence itself is going to result in an extremely long sentence, restraint should be exercised on the range of enhancement arising from other aggravating factors in order to avoid an overly severe sentence.

13.  At the time of the offence, the applicant, who was under the age of 21, was still young. In so far as the background of the case is concerned, it was highly likely that he was also used by others to commit the crime. If in the present case the applicant’s sentence is enhanced by 3 years because of his using a minor in drug trafficking, then the enhancement in sentence given to a mastermind of a drug trafficking syndicate using minors in drug trafficking may have to be many times more.

14.  In our view, such a way to deal with the matter is questionable. We reiterate that in Chan Ka Shing the Court of Appeal has stated as follows:

“Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Anyone would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”

15.  We reiterate that a serious drug trafficking offence will itself result in an extremely long term of imprisonment. If the starting point taken for sentence is increased substantially due to other aggravating factors, the ultimate sentence will cause a defendant, in particular a young one, to face an overly severe sentence.

16.  Having considered the incident from the above viewpoint, we agreed that the enhancement of 3 years imposed on the applicant due to his using a minor in drug trafficking was too high, particularly when the starting point taken for sentence was already 21 years and 11 months, and the sentence was also increased by 1 year and 6 months due to the cross-border element. In our view, in so far as the background of the present case is concerned, an enhancement of 3 years in the total sentence is sufficient to reflect the two aggravating factors, namely the cross-border element and the use of a minor in drug trafficking. We consider an enhancement of 3 years of the total sentence (about 14% of the starting point), due to those two aggravating factors, to be appropriate.

17.  Accordingly, the total starting point taken for the sentence applicable to the applicant should be 24 years and 11 months. The applicant entered a timely plea of guilty and was entitled to a one-third discount on the sentence he would otherwise receive. The proper sentence should be 16 years and 7 months.

18.  We therefore granted the applicant leave to appeal against sentence. We allowed his appeal and reduced his sentence from 17 years and 7 months to 16 years and 7 months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.