HKSAR v. PAU KING KONG

CACC 465/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 465 OF 2012

(ON APPEAL FROM DCCC NO. 179 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was convicted on his own plea by Deputy District Judge G Lam on 13 April 2012 of six charges of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced on 27 April 2012 to a total period of imprisonment of 3 years and 8 months.  On 22 November 2012 he applied under section 83Q(3) of the Criminal Procedure Ordinance, Cap 221, for an extension of time in which to give notice of application for leave to appeal the sentences that make up this total.

The Charges

2.  All the charges were committed between 15 July 2011 and 13 November 2011.  They were as follows:

Charge No.	Date of offence	Nature of Drug	Amount of Narcotic
1	15 July 2011	Ketamine	1.23 grammes
2	18 July 2011	Ketamine	1.11 grammes
4	24 July 2011	ICE	0.22 gramme
5	31 July 2011	ICE	0.16 gramme
6	13 October 2011	ICE and N,N-dimethylamphetamine (“NNDMA”)	2.92 grammes of ICE and 0.83 gramme of NNDMA
7	13 November 2011	ICE	0.72 gramme

Background to Offences

3.  The offences were committed in the course of an undercover police operation by the Regional and Triad Unit New Territories North.  A police officer (“PW1”) was tasked to disguise himself as a casual transportation worker who was a drug addict.

4.  On 15 July 2011 PW1 was contacted by a man called ‘Ah Kai’ who asked PW1 if he wanted to purchase some ketamine.  PW1 replied that he did and the man Ah Kai asked PW1 to go to a McDonald’s Restaurant in Sheung Shui and to wait for him there.

5.  Once at the restaurant PW1 was introduced by the man Ah Kai to the applicant.  The applicant informed PW1 that the minimum order was $500 worth of ketamine.  PW1 gave this amount to the applicant who handed over to PW1 a plastic bag containing ketamine and this transaction formed the subject of the first charge.

6.  Thereafter, PW1 received calls regularly from the applicant who offered to sell him further quantities of ketamine and, in due course, ICE.

7.  Another transaction involving ketamine took place on 18 July 2011 and this transaction formed the subject of the second charge.  The amount paid for the ketamine was similarly $500.

8.  On 24 July 2011 PW1 called back the applicant in response to a missed called from him.  The applicant told PW1 that he had some stock of ICE and enquired of PW1 if he wanted to purchase any.  PW1 replied that he wanted to purchase half a bag only and the applicant then arranged to meet PW1 where the transaction took place for an amount of $300.  This transaction was the subject of the fourth charge.

9.  On 31 July 2011 PW1 received another phone called from the applicant who offered to sell him a quantity of ICE.  PW1 agreed and they arranged to meet. When they met PW1 paid the applicant $400 for the quantity of ICE that is the subject of the fifth charge.

10.  On 13 October 2011 PW1 was again contacted by the applicant who this time said he had ten packets of ICE and asked if PW1 wanted to purchase them. PW1 enquired of the price and the applicant told him that it was $5,000.  PW1 agreed to purchase the drug and he and the applicant arranged to meet.  At the arranged meeting place PW1 handed $5,000 to the applicant who gave to him the drugs the subject of the sixth charge.

11.  On 13 November 2011 PW1 received another call from the applicant who asked him if he wanted to purchase some ICE.  PW1 agreed and asked about the price. The applicant said he had two packets to sell for $500 and PW1 agreed to purchase them.  The transaction subsequently took place at the arranged meeting spot but on this occasion the police were lying in ambush and once the transaction was concluded rushed out and intercepted and arrested the applicant.  This transaction is the subject of the seventh charge.

12.  A video record of interview was later conducted with the applicant and he admitted the offences under caution.

13.  The Summary of Facts revealed that the total amount of dangerous drugs sold to the police on the six occasions amounted to 4.02 grammes of ICE and 2.34 grammes of ketamine with a small quantity of 0.83 grammes of NNDMA.

The Reasons for Sentence

14.  The applicant was 17 at the time of the offences and 18 at the time of sentence.  He is 19 now.  His age and his clear record prompted the judge to call for a Training Centre Report.  However, this report confirmed what his counsel had informed the court, namely that the applicant is a drug addict and, consequently, this made him unsuitable for Training Centre.  It was said of the applicant that he was spending $500 - $600 per day on ICE and as a result he became a drug trafficker in order to support his habit.  The report also showed that the applicant’s parents were divorced and that his mother had moved away from the family home.  As his father was suffering from ill-health and the applicant’s only sibling was a younger brother, there was, therefore, no-one in the family who was able to supervise the applicant.

15.  The judge then, correctly, had recourse to the sentencing tariffs for trafficking in ketamine and ICE as set out in Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.  Drawing upon these tariffs he noted that for quantities of ketamine up to 10 grammes the sentencing range is from 2 ‑ 4 years’ imprisonment and for quantities of ICE up to 10 grammes the sentencing range is from 3 - 7 years’ imprisonment.

16.  For charges 1 and 2, which involved small quantities of ketamine he adopted starting points of 2 years’ imprisonment, allowed the usual one third discount for the applicant’s guilty plea, resulting in sentences of 16 months’ imprisonment.

17.  For charges 4, 5 and 7 which involved small quantities of ICE, the judge likewise adopted starting points of 2 years’ imprisonment for each of these offences, gave the applicant one third discount for his guilty plea, thereby resulting in final sentences for these offences of again 16 months’ imprisonment.

18.  Charge 6 involved the larger quantity of ICE and the very small amount of NNDMA.  For the purposes of sentencing the judge ignored the negligible quantity of NNDMA and adopted a starting point of 4 years’ imprisonment for this charge.  The one third discount for the guilty plea reduced the final sentence to 32 months’ imprisonment.

19.  The judge noted that there were no other mitigating features which would justify any further reduction of the sentence in addition to the one third discount for the guilty plea.

20.  The judge then had to decide upon the total sentence.  In doing so he adopted a rather curious course.  He noted the total quantity of drugs involved in the charges as set out in the Summary of Facts.  The ketamine in charges 1 and 2 totalled 2.34 grammes and he said that the appropriate starting point for this total amount would, under the relevant tariff, be 2 years. Likewise, he noted that in respect of the ICE charges, namely charges 4 to 7, the total amount of ICE involved was 4.02 grammes.  For this amount he said the appropriate starting point in accordance with the relevant tariff would be 4.5 years’ imprisonment.  He then went on to say that after considering the totality principle he took the view that the appropriate overall starting point for the six charges should be 5.5 years’ imprisonment.  With the one third discount that left an overall sentence of 44 months’ imprisonment.  He decided that this was the total sentence that should be imposed on the applicant.

21.  He then had recourse to his power to order sentences to be served consecutively in order to impose this sentence.  Returning to the various sentences he had calculated for each of the trafficking offences he ordered that the sentences for charges 1, 2, 4, 5 and 7 be served concurrently; but that 28 months of the 32 months for charge 6 be served consecutively to all the other charges.  By so ordering he arrived at the total prison term of 44 months (3 years and 8 months) which he was seeking to achieve.

The Grounds of Appeal

22.  There are four grounds of appeals.  The first ground of appeal complains that the starting point adopted by the judge for charge 6, namely 4 years’ imprisonment, was manifestly excessive.  This is the charge involving the larger quantity of ICE.

23.  The second ground of appeal is that the overall starting point adopted by the trial judge, namely 66 months’ (5.5 years) imprisonment was manifestly excessive.  This is a reference to the analysis by the judge of an appropriate total starting point after taking into account the total amount of drugs involved in the six charges.

24.  The third ground of appeal is that the judge failed to give sufficient regard to the mitigation that was advanced on behalf of the applicant, namely his youth, clear record, co-operation with the police and the fact that during an undercover operation the applicant may not have committed multiple offences if the police had arrested him immediately after the commission of charge 1.

25.  The fourth ground of appeal is simply that in all the circumstances of the case the sentence was manifestly excessive.

Discussion

26.  In support of the first ground of appeal that the starting point of 4 years’ imprisonment was excessive for the 2.92 grammes of ICE the subject of the sixth charge, the applicant argues that the quantity of drugs is, in fact, at the lower end of the range and further it was packed inside one plastic bag and not several smaller plastic bags.

27.  Identifying an appropriate starting point within the dangerous drug sentencing ranges is not a mathematical exercise and the Court of Appeal has said on many occasions that some leeway must be allowed to the sentencing judge in identifying the appropriate place within the range for the quantity of drugs involved in the case before him.  Here, the quantity is not an insignificant amount and the starting point taken by the judge is certainly closer to the lower end rather than the higher end of the range.  Further, the fact that it was packed in one plastic bag seems to us to be neither here nor there.  The applicant was obviously a retail drug trafficker and had he been intending to sell this ICE in smaller amounts he would no doubt have kept it in the ten packets he claimed to have or, if necessary, broken it into smaller amounts in many plastic bags.  Here, he was selling a larger amount and so packaging it into a number of different plastic bags was simply unnecessary.  There is nothing in this point and there is nothing in this ground of appeal.

28.  The second ground of appeal refers to the way in which the judge arrived at an appropriate totality.  He did this by aggregating from the different charges the quantities of the two different drugs involved.  For each of these total amounts of drug he then had recourse to the tariffs laid down in the two relevant cases for those aggregated amounts.  This had no impact on his earlier identified starting points for the two ketamine offences of 2 years’ imprisonment but it did cause him to regard 4.5 years’ imprisonment as the appropriate starting point for the four ICE offences.  Presumably, it was by reference to these figures that he then determined upon an overall starting point for all six charges of 5.5 years which he then discounted by one third to reach a final total sentence of 44 months’ imprisonment.

29.  The correct approach to be taken to the sentencing for multiple offences was discussed by Stock VP in giving the judgment of the court in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.  At page 698, paragraphs 14 and 17 he referred to the situation of multiple offences committed in the course of one episode of criminal activity:

“14. The question whether to order concurrent or consecutive sentences can arise in many different scenarios. An offender may be charged in respect of a number of different, or similar, offences committed on wholly separate occasions over a period of time or with a number of different offences committed in the course of one episode of criminal activity. …

17. But when the prosecuting authority elects the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the objective is still the same; that is to say, the ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct.”

30.  He went on to emphasize that for the sentencing judge the issue was not whether the offences formed one episode of criminal activity but whether additional punishment was needed for the separate offences in order to reflect the offender’s true culpability.  At page 699, paragraph 23 of Ngai Yiu Ching he said:

“23. The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted. This is an approach which this Court has consistently adopted in recent times, for example in HKSAR v Kwok Shiu To [2006] 2 HKLRD 272 and HKSAR v Iu Wai Shun [2008] 1 HKC 79. It is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act. If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”

31.  In determining the question of whether a second or other offence did add to the culpability of the offender he endorsed the following comments of Howie J in a decision of the New South Wales Court of Criminal Appeal in Cahyadi v R (2007) 168 A Crim R 41 at page 47, paragraph 27:

“… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

32.  In concluding his discussion on this issue Stock VP referred at page 701, paragraph 27 of his judgment, to the situation of multiple offences committed on separate occasions:

“27. For the sake of completeness we should refer to the multiple offence scenario that involves offences, different in nature or the same, committed on quite separate occasions. In that situation the court will invariably have concluded that, in principle, it may impose consecutive sentences. But the court still needs to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle. Only be doing so will it be able to arrive at a sentence that is fair to the offender yet also properly reflects the culpability of his conduct.”

33.  We have referred to both types of situations where multiple offences can arise lest it be thought that the present case falls into the category of one episode of criminal conduct.  It does not and as Stock VP pointed out in Ngai Yiu Ching using this type of categorization is not a helpful tool in determining whether consecutive sentences are merited for it tends to distract the sentencer from the real issue with which he must deal, namely whether the other charges add to the culpability of the offender.

34.  In the present case it is true that all the transactions involved the applicant as seller and PW1 as purchaser but that fact alone is not sufficient for the court to conclude that punishing the applicant for one transaction would adequately reflect his culpability in respect of the other transactions taking place on different dates.  In making the sentences for charges 1 and 2 (the ketamine transactions) concurrent the judge erred, for his order resulted in no additional punishment being imposed for charge 2.

35.  For charges 4, 5 and 7 (the ICE transactions), it could be argued that by aggregating the drugs in these charges with the drugs in charge 6 (also an ICE transaction) and adopting a higher starting point and then ordering a large part of the sentence for charge 6 to be made consecutive to the other charges the judge reflected the additional culpability that was involved in the other ICE transactions that made up charges 4, 5 and 7.  But that is not a correct or desirable approach to sentencing.  It leaves charges 4, 5 and 7 inadequately punished for their punishment is dependent on the effect of ordering a large part of the sentence for charge 6 to run consecutively to their sentences and the sentences for the other charges.

36.  The judge should have concluded that each charge represented a separate act of trafficking which added to the overall culpability of the applicant’s conduct.  Then, having so concluded, he should have gone on to apply the totality principle as a preliminary step to determining what orders he should make in respect of consecutive sentences.

37.  The totality principle invests the judge with a broad discretion to ensure that the final sentence he imposes on a defendant does justice in the case before him; justice to the offender and justice to the victims and the community.  This involves the court in standing back so that it has the opportunity to view the culpability of the offender from a distance, for distance provides greater objectivity and an opportunity to view the culpability of the offender in the round.  This distance is crucial to the application of the totality principle as was emphasised by Lugar‑Mawson J in HKSAR Chiu Ping Kei CACC 476/2001; unreported, 17 June 2002, when commenting on an statement by Silke VP in an earlier decision of the Court of Appeal.  He said at paragraph 22:

“In R v Wong Kwai-Pui Cr App No. 522 of 1989 (unreported) Silke VP emphasised the need for the court not only to stand back, but to stand back ‘far enough’. In making his evaluation the judge must consider circumstances such as the need to inhibit other person from committing the same sort of offence, the seriousness of the individual offences, and the mitigation.”

38.  By standing back ‘far enough’ the sentencer is better able to assess what is needed in order to arrive at a sentence which is proportionate to the defendant’s culpability whilst at the same time being fair to him.

39.  The need to achieve the correct balance was a point made by Stock VP in the Ngai Yiu Ching case when he said at page 699, paragraph 22:

“22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”: R v KM [2004] NSWCCA 65 at para. 55.”

40.  Thus, it is clear from the authorities that the totality principle in helping the sentencer arrive at a just sentence looks not just to the seriousness of the offences and the culpability of the offender, but also to the circumstances of the offender.  This gives it particular significance in drug trafficking cases precisely because the sentencing discretion of the judge is so severely constrained in terms of identifying a starting point.  Thus, whereas many mitigating features such as youth and clear record will not benefit a defendant when the judge is determining the appropriate starting point for a drug trafficker they are matters he can properly take into account when applying the totality principle.

41.  But the effect of what the judge did in the present case was to apply the totality principle solely by reference to the nature and quantity of drugs involved.  This was wrong for in so doing be focussed only on the nature of the offences and the culpability of the applicant without giving appropriate regard to the circumstances of the applicant.  He addressed and accommodated deterrence and denunciation to the exclusion of rehabilitation.

42.  The judge had to sentence a person who came from difficult family circumstances.  As a result of troubled teenage years during which he lacked adequate parental supervision this applicant fell into bad company and came under the influence of persons who introduced him to drugs.  From addiction it was no doubt an easy step to becoming a small time trafficker; perhaps even an inevitable one for an addict with no job, and thus no income, and who lacked any qualification or employment related skills.  Had he not been drug dependent he may well have been regarded as a suitable candidate for Training Centre.

43.  Although all these personal circumstances would necessarily have had little impact on the judge’s determination of an appropriate starting point for his individual sentences they were highly relevant to the application of the totality principle to the final sentence.  They were highly relevant because they bore directly upon the question of how the totality principle might be able to accommodate the rehabilitation needs of the applicant and how the court could avoid the risk of imposing what might be a crushing sentence on him.

44.  What is crushing for a mature adult and what is crushing for this young man emerging from adolescence are two quite different matters and one would hope that for a young man of clear record, prison would be such a frightening experience that he would not wish to repeat it.  He appears to be remorseful and the Training Centre report, in our view,  justifies an approach that provides him with some motivation to rehabilitate himself.

45.  The third ground of appeal asserted that insufficient regard was had to the mitigating features present in this case.  Those mitigating features were the applicant’s age, the fact he had a clear record and the conduct of the applicant whilst on remand.  It was also said that but for the police conduct in delaying the arrest of the applicant he would have committed only one offence.

46.  This Court has said on many occasions that in drug cases no regard can be had to youth except extreme youth and this applicant does not fall into that category.  This Court has also said, again on a numerous occasions, that clear record is subsumed into the one third discount.

47.  The complaint in the ground of appeal that the applicant should have been arrested after the first offence and that the police are somehow responsible for his subsequent offences is likewise without merit.  When law enforcement agencies engage in undercover operations there may a number of considerations which will contribute to their decision as to when to end the operation and turn their investigation overt.  Unless there is some matter which throws doubts on the integrity of their decision‑making on this issue it will not be for the courts to second-guess operational decisions of a law enforcement agency in such a situation.  But here the Summary of Facts clearly revealed that it was the applicant that took the initiative to contact PW1 in order to sell him drugs and not the other way around.  This, of course, was consistent with the mitigation advanced on his behalf that he engaged in trafficking in order to fund his own addiction.

48.  There is nothing in the mitigation advanced before the judge and before us which entitled this applicant to anything more than the one third discount for his guilty plea.

The Application for an Extension of Time

49.  In support of his application for an extension of time in which to appeal the applicant filed an affirmation in which he explained that his family members had only recently sought legal advice and this advice was that his sentence was excessive.  It is clear from the Training Centre Suitability Report that the applicant comes from an impoverished family background and on enquiry from the court the applicant’s counsel informed us that the reason for the family delaying in seeking legal advice, was not surprisingly, lack of funds.

50.  In deciding whether to grant the indulgence of an extension of time in which to appeal the Court of Appeal looks to the length of the delay in appealing, the reason for that delay and generally the bona fides of the applicant, and the merits of the grounds of appeal.[1] In respect of the last factor the court examines the grounds in order to see if they seem impressive and to check that if it should refuse the application it would not be shutting out a substantial and plainly arguable ground of appeal.[2]  Because we are a court of justice the merits of the grounds of appeal will play a large part in the decision whether to extend time.  But, as Stock JA, as he then was, pointed out in HKSAR v W CACC 527/2003; unreported, 5 August 2004 this cannot be to the exclusion of other factors:

“The longer the passage of time, the less likely is it that time will be extended unless there be given sound reason for the delay.”

51.  Here, the applicant is six months out of time, he has provided a credible and understandable explanation of the delay and has demonstrated merit in his grounds of appeal.  We, therefore, grant him the extension of time that he needs in order to apply for leave to appeal.

Conclusion

52.  As we indicated when discussing the second ground of appeal, we are of the view that although the judge correctly identified the appropriate starting point for all his sentences, he erred in the way he ordered those sentences to be served.  We, therefore, allow the application for leave to appeal, treat the hearing of the application as the hearing of the appeal and quash the sentences imposed by the judge.  In substitution for those sentences we order that the sentences for charges 1, 2, 4, 5 and 7 be the same as those imposed by the trial judge, namely 16 months’ imprisonment, except that we order that 2 months of charge 2 be served consecutively to charge 1, 2 months of charge 4 be served consecutively to charges 2 and 1, 2 months of charge 5 be served consecutively to charges 4, 2 and 1, and 2 months of charge 7 be served consecutively to charges 5, 4, 2 and 1, thereby resulting in a total sentence for those offences of 24 months.

53.  As we have indicated the judge’s sentence for charge 6 is appropriate and after allowance is made for the plea of guilty it becomes, as the judge himself noted, 32 months’ imprisonment.  The question then arises as to how much of the sentence for charge 6 should be ordered to be served consecutively to the sentences for the other offences.  We believe, in the circumstances, of this particular case and this particular applicant a further 12 months is appropriate and we so order.  The total sentence to be served by this applicant is then 3 years’ imprisonment.

[1]       See R v Wong Kai Kong [1990] 1 HKC 279.

[2]       Ibid.