HKSAR v. CHAN KAM FAI

CACC 102/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 102 OF 2015

(ON APPEAL FROM HCCC NO. 69 OF 2013)

________________________

________________________

_______________________

J U D G M E N T

________________________

Hon Macrae JA (giving the Judgment of the Court):

1.  The applicant seeks leave to appeal against his sentence of 13 years and 10 months’ imprisonment, imposed on 5 March 2015 by Deputy Judge A Wong (as he then was) (“the judge”) in the High Court, upon his plea guilty to a single count of trafficking unlawfully in a dangerous drug, namely 1.37 kilogrammes of a mixture containing 1.02 kilogrammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant was originally tried together with another defendant (“the other defendant”), whose appeal has been dealt with separately.

The facts

3.  At around 6 pm on 25 July 2012, the applicant and the other defendant, who were both members of a group tour to Australia, were intercepted by customs officers at the Departure Hall of Passenger Terminal One at Hong Kong International Airport.  Nothing was found on a search of their respective luggage.  However, each of them was found to have 10 packages taped to their legs by means of bandages and other wrapping.

4.  They were then both arrested at the scene.  The applicant was immediately cautioned and responded to the effect that he guessed the contents of the packages were ‘four chai’.  The applicant was found in possession of HK$13,810 and AUD$1,500, while the other defendant was found in possession of HK$28,070 and also AUD$1,500.

5.  The applicant later admitted in a video recorded interview the following, inter alia:

(a)  He had been asked by a man known as Ah Shun to enroll in a tour to Australia from 22 to 25 July 2012 for himself and the other defendant, whom he did not know;

(b)  Some days before the enrollment on the tour, he was given HK$35,000 by Ah Shun for the tour fees and, two days before he enrolled, he was given the passport of the other defendant;

(c)  After he had enrolled on the tour, he passed his and the other defendant’s passports, as well as the receipt for the tour, to Ah Shun;

(d)  A few days before 25 July 2012, he met the other defendant for the first time in the Mainland, where they had a massage and a meal;

(e)  In the morning on 25 July 2012, he met the other defendant and an unknown male in a hotel in Mongkok; and in the afternoon some packets were taped to his and the other defendant’s body; and

(f)  He was given AUD$1,500 and a Nokia mobile telephone for contact purposes in Australia, where he was told he would receive a further HK$100,000 upon successful delivery.

6.  The Government Chemist certified that the suspected dangerous drugs seized from the applicant and the other defendant were as stated in the respective counts which they faced on the indictment; namely, 1.37 kilogrammes of a mixture containing 1.02 kilogrammes of heroin hydrochloride in respect of the applicant; and 1.38 kilogrammes of a mixture containing 1 kilogramme of heroin hydrochloride in respect of the other defendant.  The street value of the heroin trafficked by the applicant was (as at July 2012) HK$1,011,060, while the street value of the other defendant’s consignment was HK$1,018,440.

The applicant’s mitigation

7.  The applicant had not been in trouble before, had been cooperative with the authorities throughout and had pleaded guilty. He was said to be a filial son to his mother, who suffered from diabetes.  Two letters written by the applicant and his sister respectively were adduced before the judge, which stressed the applicant’s remorse and good nature, as well as his sister’s belief that her brother had been exploited and enticed by bad elements into committing the offence.

Sentence

8.  After considering the authorities of R v Lau Tak Ming[1] and HKSAR v Abdallah[2], the judge adopted a starting point of 22 years’ imprisonment for the quantity concerned, which he enhanced by 1 year for the aggravating feature involved in attempting to take the dangerous drugs out of Hong Kong to Australia[3].

9.  The judge considered that, in addition to the one-third discount in respect of his guilty plea, the applicant was entitled to a further discount because of information which had, with the consent of the prosecution, been placed before him.  The judge assessed the overall quantum of discount at 40%[4].

10.  The applicant was accordingly sentenced to 13 years and 10 months’ imprisonment.

The applicant’s grounds of appeal against sentence

11.  The applicant states in his Form XI Notice that the sentence was too heavy; that he had provided assistance to the authorities but the reduction of sentence was too small.  He has elaborated upon these points in oral argument before us this afternoon.

Respondent’s submissions

Starting point

12.  Ms Audrey Parwani, SPP (Ag), submits on behalf of the respondent that the sentence imposed was entirely proper and consistent with sentencing guidelines. She contends that the judge gave the applicant the fullest discount available; and that the ultimate sentence imposed was not manifestly excessive.  In particular, she submits that:

(a)  According to Lau Tak Ming[5] and Abdallah[6], the starting point for trafficking in 600 to 1,200 grammes of heroin should be between 20 and 23 years’ imprisonment; thus, on a strictly mathematical calculation, the trafficking in 1.02 kilogrammes of heroin would warrant an initial starting point of 22 years’ imprisonment; and

(b)  As for the enhancement of sentence for the international element, it was said in Abdallah[7]that the Court did not envisage that such enhancement would be less than 2 years’ imprisonment where the weight of the drugs was above 1 kilogramme.  Here the weight of heroin narcotic for sentencing purposes was just over 1 kilogramme.

Assistance to the authorities

13.  Ms Parwani relies on the decision of the Court of Final Appeal in Z v HKSAR[8]for the proposition that a discount of 40% would normally be given where a defendant has provided useful information or assistance to the authorities, which has lead to a conviction, but without having had to testify against those in respect of whom he has provided such information or assistance.  In HKSAR v Kay Sik Hong Billy[9], the appellant had been given the equivalent of a 38.8% discount for giving assistance to the authorities, which included the giving of non-prejudicial statement(s) describing the role of his co-conspirators and identifying them.  In the event, the co-defendants had pleaded guilty, thus relieving the appellant of the need to give evidence against them.

14.  Ms Parwani submits that, although the applicant before us had given assistance to the authorities, which those authorities were prepared to accept as credible, it had not ultimately led to any fruitful results in terms of convictions or, perhaps, seizures of dangerous drugs.

Consideration

15.  In terms of the starting point of 22 years’ imprisonment for the quantity of heroin narcotic involved, the sentence cannot be faulted under the relevant guidelines in Lau Tak Ming[10].  However, the judge gave no reasons for not enhancing that starting point for the international element by 2 years’ imprisonment, as prescribed in the guidelines in Abdallah[11].  In failing to give any proper reasons for departing from those guidelines, the judge, with respect, fell into error.

16.  Accordingly, the judge ought to have adopted an overall sentence after trial of 24 years’ imprisonment: instead, he adopted a sentence after trial of 23 years’ imprisonment.  The applicant was, therefore, the beneficiary of this error.

17.  As for the assistance given by the applicant to the authorities, we have carefully examined the extent of that assistance.  Whilst it was undoubtedly comprehensive and as complete as the applicant was able to provide, and although it appears to have been accepted by the authorities as credible, the fact is that nothing ultimately ever came of it and the applicant was never required to give evidence against anyone.  Indeed, no one ever stood trial in relation to the assistance he gave, nor were any seizures of dangerous drugs made.  Accordingly, the discount of 40% (in precise terms 39.85%) was a generous one.

Conclusion

18.  In the circumstances, the application for leave to appeal against sentence must be refused.

[1] [1990] 2 HKLR 370

[2] [2009] 2 HKLRD 437

[3] Appeal Bundle page 19H

[4] In precise terms, the discount was 39.85%

[5] [1990] 2 HKLR 370

[6] [2009] 2 HKLRD 437

[7] [2009] 2 HKLRD 437 at para 43

[8] (2007) 10 HKCFAR 183, at 194 D-H

[9] [2014] 1 HKLRD 812

[10] [1990] 2 HKLR 370

[11] [2009] 2 HKLRD 437, at para 43