HKSAR v. TAM KAM TONG AND OTHERS

CACC 125/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 125 OF 1999

(ON APPEAL FROM DCCC 1390 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. The Applicants (D1, D3 and D5 respectively), together with two others, were dealt with on their pleas of guilty in the District Court before Deputy Judge Sinclair on 25th February 1999 for an offence of conspiracy to traffic in heroin hydrochloride on days between 1st September and 7th October 1998. D5 additionally pleaded guilty to simple possession of small quantities of heroin hydrochloride, methamphetamine hydrochloride (ice) and cannabis. D1 was sentenced to four years and two months, D3 was sentenced to two years and eight months and D5 was sentenced to five years' imprisonment for the conspiracy. A concurrent term of four months' imprisonment was imposed on D5 for the offence of simple possession. The Applicants now seek leave to appeal against their sentences.

2. The Applicants were arrested as the result of a police surveillance operation in late September 1998 which they carried out in an area of Western. Following their arrests, each of the Applicants made admissions to police concerning this ongoing conspiracy to supply heroin. The charge reflected their overall criminality and the sentences imposed were designed to reflect the individual culpability of each Applicant.

3. D5 was the instigator of the conspiracy. He agreed to supply D1 with packets of heroin for onward disposal. D1 then brought in D3 (and D2), whose role was to dispose of the drugs to individual purchasers for which service they would receive $15 for each packet sold.

4. D5 admitted he had obtained heroin which he ground down into powder form before putting it into smaller packets to supply to D1 who would, in due course, have to account to D5 by paying him $170 for each packet sold.

5. D1 received $200 or so for each packet sold by D2 or D3 from which would come their commission.

6. As far as the scale of the operation is concerned, in his admission, D5 said that he had been supplying D1 with between ten and twenty packets of heroin on each occasion, and it was conceded on his behalf in the court below that this arrangement had continued for about a month. D1 made a similar admission saying that he was daily supplied with fifteen to twenty packets over a period of about a month. For the purposes of sentence, the judge very fairly assumed the lower figure given by D5 of ten packets to have been the average amount involved on each occasion he supplied heroin to D1. D3 for his part admitted that he was usually supplied with five packets at a time, and that he would receive $15 commission for each packet sold.

7. These admissions were brought about after police eventually raided a public lavatory in the vicinity of the operation and arrested D1, D3 (and D2). D1 then led police to the place where eleven packets of heroin were hidden. As a result of what police learned in the interview, D5 was arrested. When his home address was searched, the drugs in the simple possession charge were found which he admitted were for the joint use of himself and his wife.

8. Mr. Ross, on behalf of D3, submits that the sentence of two years and eight months was manifestly excessive because this represents trafficking in an amount three times as much as that estimated by the judge to have been involved. In a similar submission on behalf of D5, Mr. Ross contended that there was no adequate basis for the judge to find that D5 had trafficked in any specific quantity of heroin, and that he had erred in finding D5 to have trafficked in 50-60 grammes of heroin.

9. D1 is not legally represented, but he joins the chorus of disapproval at the approach taken by the judge. He complains amongst other things at the starting point of seven years which the judge took in his case as well as D5's. He particularly complains about that as he points out that his role was subordinate to that which was played by D5. He says that he was only involved for a short time in these activities, and that there was no evidence that he had conducted his activities every day during the month that he was involved in the conspiracy. We have heard him today at some length speaking about the small quantity of drugs that was involved and he argued that the judge had sentenced him on the basis that far more drugs were involved.

10. In passing sentence, the judge clearly and concisely explained the basis of his sentencing by saying:

"As counsel for the 5th defendant has pointed out, the facts in the summary admitted do not disclose the actual amounts of heroin traded by the 1st and 5th defendants. I believe nevertheless that one can obtain a fair estimate of the trafficking based on their admissions and on the seizure of 11 remaining packets from the planter. If, as D5 says, and D1 admits that it was at least 10 packets of heroin which were supplied every day to the 1st defendant by the 5th defendant, and I take the period of one month referred to as meaning at least 28 days, then I can create a formula to establish the narcotic content of the total amount trafficked by taking the 11 packets which contained 3.72 grammes of narcotic content. Taking these figures which would be:

28 days x 10 packets x 3.72 grammes
11 (the number of packets seized)

one comes to a figure of just under 95 grammes.

If one allows for the possibility and, in all fairness, that the average packet which D1 and D5 traded in had a narcotic content of less than that found in the 11 packets, discounting the average content by a full one-third, one would still arrive at a figure of more than 63 grammes being the estimate of the narcotic content traded in by D1 with D5 over that period of the conspiracy.

Whichever figure one adopts, both are well above the 50 grammes starting point which the court in Lau Tak-ming advised merited a sentence of between 8 and 12 years' imprisonment after trial. Again, in fairness to the 1st and 5th defendants, I will adopt the lowest point and assume that the amount was somewhere between 50 and 60 grammes. Moreover, given the jurisdictional limitations, I take 7 years as the starting point of sentence for the 1st and 5th defendants on the conspiracy charge."

11. We have been given in these proceedings no sensible reason to find any fault with the judge's approach with regard to D1 or D5. On the contrary, it was a wholly realistic approach to have taken. D1's sentence, by the method which the judge set out, would have come to four years and eight months after the one-third discount had been applied, but his early plea and cooperation was further recognised by an additional six months' reduction. In his case, his criminal record revealed thirteen offences which were mainly for drug or drug-related crimes. As the judge also pointed out in his sentencing remarks, the need for deterrence in such circumstances as these has long been recognised.

12. D5's record was, for present purposes, hardly relevant. His eight convictions included only one for a drug offence, the remainder being for a variety of serious crimes of a different nature. He could expect, however, no additional credit for anything in relation to his character and his plea was entered later than the other Applicants' pleas. He was, accordingly, given a reduced discount of "about 30%".

13. Mr. Ross pointed out that in arithmetical terms a discount of 30% should have produced rather less than the sentence D5 actually received and that, in any event, it may be that he should have been given the full discount of one-third for pleading guilty. However, we take notice of the fact that the other two Applicants pleaded guilty at the first opportunity and that this Applicant did not do so. The judge was entitled, in those circumstances, to make a distinction.

14. Mr. Ross also argued that the judge had confused D1's admission that he was supplied by D5 with up to twenty packets daily with the notion that D5 had also admitted an equivalent daily supply. In fact D5 had said that he supplied ten to twenty packets "each time". To an extent Mr. Ross is correct in saying this, but the judge was fully entitled to take into account the overall criminality involved in this conspiracy. No definite amounts of drugs had been proved, but the judge had exercised great care in assessing the amounts of heroin supplied so that the figures erred on the side of favouring rather than prejudicing D1 and D5. In any event, the mitigation speeches were heard by the judge on the same day. There was no reason for a Newton hearing because counsel on behalf of D5 did not suggest that he took issue with anything that had been said on behalf of others as to the role of D5.

15. Turning to D3, the judge had this to say when passing sentence:

"With regard to the 3rd defendant, he admits to having been selling packets of heroin for the 1st defendant as from 24 September last year. That is to say, he admits being part of the conspiracy and carrying through the conspiracy for 14 days prior to his arrest. Although there is no evidence as to how many packets he did traffic in, he has said that every time he received five packets of drugs for sale and, to make sense of his explanation, there must have been at least two times that he sold drugs.

The amount involved would fall within the 2 to 5 year tariff guideline in Lau Tak-ming. The 3rd defendant has, as I have said, several previous convictions for trafficking in drugs. I acknowledge that he had a minor role in this matter and for his part in this conspiracy I take a starting point of 4 years. imprisonment."

16. Later the judge reduced the starting point by one-third to take into account the frank admissions and his early plea.

17. Mr. Ross points out that the judge gave no precise estimate of the amount of drugs trafficked by D3. This is perfectly true, but the argument he went on to advance ignored the obvious feature of this case, which is that it was a conspiracy to traffic and not trafficking in a specified amount that was charged. Mr. Ross submitted that, taken literally, if D3 had trafficked for only two days in ten packets, and making the same allowance for narcotic content as was made in the cases of D1 and D5, this would result in a total of about 2.25 grammes actually trafficked by D3.

18. We were not impressed by this argument. The judge was perfectly entitled on the material before him to consider that D3 came within the four-year band for sentencing purposes under the guidelines in Lau Tak-ming, which provides for two to five years' imprisonment for "up to 10 grammes of narcotic". The conspiracy element of this case made the offence more serious than if D3 had simply been charged with an offence of trafficking in approximately 2 grammes of heroin. In addition, D3 had twice previously been before the courts for trafficking amongst a number of offences which included others which were drug-related. Bearing in mind what we have said in HKSAR v Chan Pui-chi, (1999) 2 HKLRD at 830, this was a feature which considerably aggravated the present offences for the purposes of sentence.

19. For the reasons we have given, these applications must fail and leave is refused.