HKSAR v. GONSALVES Dashiell N.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.3
(Criminal)

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J U D G M E N T

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. The Applicant in this matter faced nine charges of trafficking in dangerous drugs. He pleaded guilty to six of them and the other three were not proceeded with. He was sentenced overall to imprisonment for three years and he now seeks leave to appeal against that overall sentence.

2. The applicant was employed as a barman and it seems clear that he was, during the period of the offences, part of an operation which sold dangerous drugs and that his part was to take orders from customers and to deliver the drugs. Charges 3 and 4 occurred on 23rd April 1996. An undercover police officer, Detective Inspector Richardson, ordered 3 grammes of cocaine and he paid $3,900 into the applicant's account. One gramme was delivered to him on the day in which he placed the order and 2 grammes were delivered on the following day. The narcotic content of the drugs was relatively small 1.69 grammes.

3. Charge 5 occurred on 3rd May 1996. The undercover police officer then ordered 13 grammes of cocaine, a very much larger quantity, and 6 Ecstasy tablets. He paid the applicant $16,650 and the applicant delivered the tablets and the dangerous drugs to him. The narcotic content of the cocaine delivered was 10.81 grammes.

4. Charges 7 and 8 occurred on 17th May, some two weeks later, when again the undercover officer ordered cocaine, 15 grammes this time, and Ecstasy tablets to the number of 36. This involved a much larger amount of money, namely $27,300. This was paid into the applicant's account and the applicant delivered the tablets and 15 grammes of cocaine in two lots. The cocaine on that occasion had 5.44 grammes of narcotic content.

5. Charge 9, which occurred on 30th of that month, some two weeks later, again involved the undercover police officer. In that charge the amount of cocaine was 12.52 grammes with a narcotic content of 8.85 and the payment was $11,900.

6. The total narcotic content of the cocaine involved in all the offences was 26.79 grammes and there were also 42 Ecstasy tablets with a narcotic content of 3.257 grammes.

7. The overall sentence imposed by the judge, having taken into account the mitigating circumstances and totality, was three years.

8. It was urged in mitigation and accepted by the judge that the applicant was paid only $1,000 for all of these activities.

9. The judge, when sentencing, rightly followed the guidelines in The Attorney-General v. Pedro Nep Rojas which equated cocaine to heroin for the purpose of sentence. The judge said initially that, leaving aside the plea, the entrapment factor and the cooperation, he was satisfied that an overall sentence of 14 years would have been appropriate. Having taken those three matters into account, he reduced the sentence by 50% to seven years. He then, it would seem with totality in mind, reduced the overall sentence to one of three years. This was a massive discount of almost 80% from the original starting point of 14 years.

10. In Ground 1 Mr. Forrest, who appeared for the applicant, suggested a further discount should be given because Detective Inspector Richardson, the undercover police officer, in an undated letter sent to the applicant's mother after sentence, stated the applicant had provided invaluable information to the police. The applicant, in his first affirmation, said:

"I only trafficked in larger amounts of drugs to help the police to maintain their 'cover' but not to make more money for myself."

11. At the first hearing on 15th October 1997, this letter and the affidavit having been read, the court was concerned that the applicant was suggesting that prior to his arrest he was acting in concert with the police and that some, at least, of the offences were committed when he was in effect an undercover agent. The matter was adjourned to allow the applicant and Detective Inspector Richardson to file further affidavits.

12. The applicant in his further affidavit says that by 3rd May 1996, the date of Charge 5, he suspected that Detective Inspector Richardson ("Richardson") was a police officer. It will be remembered that in Charge 5 Richardson placed a much larger order for drugs. The applicant says that he cooperated because Richardson pressed him to do so and that he understood that thereafter he would, as far as dealing in cocaine was concerned, be to use his words, "out of the picture".

13. He said in his affirmation that after May:

"I had made a conscious decision to help Martin in any way possible, because I trusted him. I accept my hebaviour may have na?ve and stupid, but I regarded Martin as an 'older brother' and if his 'cover was blown' then something bad might happen to him and to me. I realise now (as martin says in his letter) that my friendship may have been misplaced, but at the time I did not see it that way."

14. He went on:

"One of the people he (Martin) had got to know was Gerald Ward. I believe Ward and his associates suspected Martin might be a police officer, because Martin had apparently asked a lot of questions of various dealers including Ward. I protected Martin by saying he was a friend of mine, and a legitimate businessman whom I had dealt with a number of times. I continued to maintain his cover when other traffickers approached me suggesting there was something suspicious about martin. I reassured everyone that there was nothing to worry about, and he was a trusted friend."

15. He said further:

"I told Martin that the 'syndicate bosses' were suspicious of him being a police officer and I was frightened since I had been the one to 'introduce' him (directly or indirectly) and cover for him. I was afraid I would be blamed for any consequences he precipitated. A number of 'syndicate bosses', he knew, had the reputation for dealing with cases of insubordination (which mine potentially was) with violence. Martin told me I had nothing to worry about, and that he had a 'friend in a high position in the police force' who would protect me should the need arise. He also told me that I could make money if I was willing to provide information to his 'friend'. I never took him up on his offer, but he many times gave me gifts of money. I saw this as part of our unspoken 'deal', in which I regarded myself as an informer."

16. The applicant said that at all times he thought he would be protected by Richardson. He said in conclusion:

"Finally, I should like to emphasize that before encountering Martin I never had any dealings either as a consumer, or trafficker with cocaine. Martin begged and pleaded with me to supply him with cocaine. To start with the amounts were small then as previously explained he wanted larger quantities."

17. Richardson, in his first affidavit, says:

"Having spent much time with Dash during my undercover role I know that he was used by the drug syndicate heads as a way to deal with myself while limiting their own exposure to risk for as long as possible, there being suspicion as to my real identity since I was never seen using drugs. This can, for example, be illustrated by the drugs transaction on 17 May 1996 when I purchased 32 ecstasy tablets and 15 grams of cocaine. A major supplier had been promising to meet me directly for a number of weeks without my going through Dash. On this latest occasion I was again supposed to meet the main supplier, which (fatefully for Dash) was why such a large quantity of drugs had been ordered. However, the supplier successfully managed to engineer a situation whereby Dash would have to deliver the drugs himself and aborted a face to face meeting with myself. Dash had been very reluctant to get involved in such a large deal and had stated that such trafficking was 'out of his league'.

Dash's naivety and apparent lack of experience in 'trafficking' was shown by his willingness to allow me to deposit money directly into his bank account and the fact that he used my porta phone to call dealers. These actions of course were easy for the Police to trace and provided further intelligence and evidence."

18. In his second affidavit, Richardson states:

"I never told Dashjiell that I was a police officer of was otherwise working with the police in any capacity. Dashjiell never told me he suspected I was an undercover officer. I did not recruit Dashjiell as a police informer. I gave him small amounts of money in return for doing minor errands which he was told were related to my job as a training consultant. This was my assumed identity. I never promised or offered him police protection."

19. We note what is stated but observe that the applicant has never said that he was offered police protection or that he became, in any formal way, a police informer. Richardson does not, in anything he says, contradict the applicant's evidence that he was throughout led into trafficking in cocaine by the importuning of Richardson.

20. The real question before this court is whether the judge at trial was fully aware of the circumstances of these offences. If he was not then he was left in a position where he was unable properly to assess sentence. We emphasize that this came about in part, at least, because of a failure by the prosecution, which failure was, it must be said, probably inadvertent, fully to inform the court of the circumstances of the offences.

21. The judge said when sentencing:

"On the face of it, the circumstances giving rise to these offences are not untypical. A naïve young man, working in a public house, stupidly allowed himself to become involved in criminal activity without giving consideration to the possible consequences. I am prepared to accept that the only benefit which he received from those activities was modest (of the order of $1,000) and of course, the tragedy of this case, as in all similar cases, is that today he must go to prison and that henceforth, he is a convicted drug trafficker, which will doubtless militate against him for a good deal of his life."

22. The trial judge said that the applicant had allowed himself to become involved in criminal activities. He went on to say:

"Set against that fact, however, is the fact that he was entrapped by the police into committing those offences and as to that, I respectfully endorse what Mr. Egan has said, that no criticism whatsoever can attach to the police for that."

23. The discount as Mr. Luk, who appears for the respondent, has pointed out, was a very substantial one indeed. Initially it was from 14 years to 7 years and was then reduced from 7 years to 3 years. This was an overall discount of almost 80%. We are, however, satisfied that we are possessed of a much fuller picture of what actually occurred than was the trial judge. We are now fully cognizant of the sequence of the entrapment which led the applicant from one offence to the next. We make it plain that we are in no way critical of the police officers involved. They were carrying out their duty, a duty very much in the public interest, which was to apprehend the persons behind this kind of drug trafficking. However entrapment of this sort, practised upon a young and naive person, constitutes a powerful mitigating factor. This young man was undoubtedly used by the authorities. It was not a case of a person contemplating a crime being led into committing it, or of a criminal being led into further criminal activities. The applicant was encouraged by the authorities to commit offences so that they, through him, could discover the identities of those at the heart of the trafficking activities. We accept that before he committed the more serious offences he had come to believe that he was dealing with police undercover agent. He was led into the activities which were completely over his head and thought, naively, that because he was dealing with an undercover agent, he would, in some way, be protected. We have no doubt that he is now completely and genuinely remorseful. We consider that the justice of this matter will be served, it being a wholly exceptional case, if we order that the sentence be reduced to one of two years. It may be that this reduction will allow him to be immediately released. That computation will have to be carried out by the prison authorities.

24. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence of three years is varied to one of two years.