ATTORNEY GENERAL v. WONG KWOK WAI

Headnote

S.81A Review : Principles on discounts granted

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JUDGMENT

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Silke, V.-P.:

1. Wong Kwok Wai - "the respondent" - had pleaded guilty at committal proceedings to the offence of trafficking in dangerous drugs. He was committed for sentence to the High Court where he did' not resile from that plea. He was sentenced by Saied, J. to 10 years imprisonment.

2. The quantity of drugs involved was 1,230.45 grammes of a mixture containing 1,094.28 grammes of salts of esters of morphine - No. 4 heroin.

3. The Attorney General, under the provisions of s. 81A of the Criminal Procedure ordinance, Cap. 221 and with leave, applies to this court to review that sentence on the basis that it is manifestly inadequate or wrong in principle or both.

4. The respondent had been stopped in the Customs Arrival Hall at Lo Wu on 29th clay 1990. He was searched and four prick-shaped objects were found strapped, variously, under his right arm, pit, his left arm pit, to his right abdomen and to his left abdomen, with black adnesive tape. These were the drugs in question. The respondent immediately admitted that he was knowingly carrying dangerous drugs having been recruited as a drug courier by a person named "An Tak". It had been arranged that he would meet Ah Tak at kowloon Tong MTR Station where the drugs would be collected from him. He was to be paid $6,000, that is a rate of $1,500 per block.

5. Among the seven previous appearances of the respondent in these courts, three concerned drugs. In 1985, he was convicted of simple possession of dangerous drugs and in that same year of trafficking in dangerous drugs. In 1989, he was again convicted of simple possession of dangerous drugs.

6. In passing the sentence he did the trial judge took as his starting point 17 years imprisonment. He noted that the respondent had been co-operative from the start giving details to the arresting officers of the person who recruited him into the trade. He bore in mind that, as was advanced to him by Mr. Souyave who appeared for the respondent both here and below, the respondent was willing, should any person be apprehended as a result of the information he gave, to give evidence in any trial concerning them.

7. There was some discussion as to whether or not .the guidelines as set out in R. v. Lau Tak Ming [1990] 2 HKLR 370 should apply to this respondent. The 29th May 1990, was the day on which the decision in Lau Tak Ming was delivered. It is Mr. Souyave's contention, made both here and below, that there should be some form of publicity for such guidelines prior to their full implementation. That contention was rejected by the trial judge ,who felt that it was generally known that these courts impose severe penalties on drug traffickers. He accepted, accepted, however, that the respondent was somewhat unlucky in that he had committed the offence on the very day that the Lau Tak Ming guidelines were pronounced. Mr. Souyave has to us amplified those submissions by suggesting that, as the crime must have been planned before the day of arrest, a form of grace period should be given and that guidelines are not strait jackets.

8. We accept that there must, nave been planning prior to the actual date of the offence itself. We accept that guidelines are not strait jackets. We do not however-accept that a grace period is to be given where sentencing guidelines are laid down by this court. The authority upon which Mr. Souyave relies, R. v. So Man King [1989] 2 HKLR 172, does not support his-contention. That related to an unannounced change in prosecution policy.

9. The guidelines in Lau Tak Ming altered the basis upon which sentence is to be passed, from the mixture content to the narcotic content. They extended the upper range of sentence available beyond the 20 year cut off point in The Queen v. Cheng Yueng [1989] 2 HKLR 258. They did not, however, radically alter the general line of sentencing in cases of this, nature. That decision did state that sentences for possession for the purposes of trafficking and for the offence of trafficking itself should be generally on the same level rather than, as had been indicated in earlier authorities, sentences for trafficking heavier than those for possession for the purpose of unlawful trafficking.

10. The quantity of the narcotic here fell beyond-and not, with respect to Mr. Souyave, within the band (E) at page 387 of Lau Tak Ming. That band runs between 400 and 600 grammes of the narcotic with the sentencing range between 15 to 20 years imprisonment. As the quantity here was 1,094.28 grammes of narcotic, sentences beyond 20 years could properly be in the contemplation of the sentencing court.

11. Quite how the judge arrived at the starting point of 17 years we do not know. It could properly have been 20 years or more. In consideration of the plea and the respondent's co-operation with the authorities, the judge considered the respondent to be entitled to substantial discount which he assesses) at 40%. This mathematically became 6.8 years which he rounded up to 7 years thus arriving at his senteence of 10 years imprisonment

12. We fully accept that pleas of guilty, particularly those 'made at the first opportunity are to be-actively encouraged. But, as was said in The Queen v. Lee Wai Man, Criminal Appeal No. 225 of 1990, the fact that a person is caught red-handed, as was this respondent, takes something away from that point in castigation.

13. Co-operation with and information to the arresting authorities is also to be encouraged and frank admissions of guilt, which are not resiled from, go to strengthen the instigating value of a plea made at first opportunity. To be entitled to an increased discount for information given, that information must be of some use. While the respondent may have co-operated, as the judge put it, "to the extent that he could", what he told the authorities led to no further arrests or was of any great assistance to hem. To offer to give evidence should there be future arrests is not something which should be considered in mitigation other than under the rubric of co-operation. It is a promise in the future and the sentencing court has no way of knowing whether it will be observed or not. If at a subsequent date the respondent does give evidence, possibly placing himself in jeopardy, at the trial of someone concerned in dealing with dangerous drugs, then it would be a matter for the Executive to act as it saw fit in relation to the sentence he was then serving.

14. This court does not encourage mathematical calculations of discount. Such a method can well lead to submissions in subsequent cases that one man got, say 35%, and "I got only 30%, please give me' the same" or to a form of fixed percentage which becomes immutable. Each case must depend entirely on its own facts and no doubt a sentencing judge in the exercise of his discretion will bear in mind all the many factors - or the lack of them - which permit him to reduce his starting point sentence.

15. Despite Mr. Souyave's efforts to persuade us to the contrary, we are satisfied here that the starting point taken by the trial judge was wrong 20 years imprisonment would not have been disturbed. We are equally satisfied that the quantum of the discount was excessive. Had the trial judge, giving all due allowance for the plea at first opportunity which, as we have said, was the major mitigation in this case coupled with the frank admissions from the outset, adopted a starting point of 20 years, and imposed a sentence of 15 years imprisonment he would not have been wrong.

16. At the conclusion of the hearing we indicated that we were minded to grant the review. We were then addressed on the issue of the principles applicable to discount in Review application - it having been indicated in Applications for Review 5 etc. of 1990 Ng Kin Hung and Others [1991] 1 HKLR 81 at p.87 that this court would welcome, on the next opportunity submissions on this issue. This for various reasons has been the first opportunity. As this is a matter of sentencing policy of some importance we thought it proper to reserve our final judgment until we had consulted with the other judges of this court who, we are now in a position to indicate, are in general agreement with the views we are about to express.

Discount: Principles

17. We are satisfied, following The Attorney General v. Chan Tak King and Another [1989] 2 HKLR 428, that, given the wording of s. 81A and 81B of the Criminal Procedure Ordinance, which as that court indicated should be read together, there is a discretion in this court as to what sentence should be passed, or indeed whether the sentence should be enhanced even were this court to think that the original sentence was manifestly inadequate or wrong in principle (see p.432). Fuad, V.P. set out s. 81B(1)(a) which reads:

"81B(1) Upon the hearing of the application the' Court of Appeal may; by order-

 

(a) if it thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate, quash the sentence passed by the court and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed."

He then went on:

"We entertain no doubt that to impose a strait jacket upon the Court of Appeal that would require it to interfere with a sentence to the detriment of an offender whenever s. 81B(1)(a) is satisfied without having regard to any of the considerations which are normally taken into account when determining an appropriate sentence, would not be fair or just, and we approach the task of interpretation before us from the standpoint that the legislature is not likely to have intended to perpetrate injustice."

18. Having laid emphasise on the word "may" as it appears in the opening sentence of s. 81A and s.81B(1) the court carne to the conclusion that it did not think the provisions of 81B compelled a construction such as to make it obligatory for the court to impose the sentence it considered should have been imposed at the trial or, indeed, to dismiss the application.

19. It considered that there was at least a half way house between those two extremes and' that a "no order" could be made.

20. We would extend, should that be necessary, the reasoning in Chan Tak King to include a discretion enabling this court to grant, if it should see fit, a discount from the sentence. which it might think the trial court should properly have imposed.

Exercise of the Discretion

21. When the new procedure of permitting the Attorney General to review sentences imposed in the High Court and in other courts was introduced in April 1972, initially no discount upon that which this court thought to be the proper sentence was allowed (see A.G. v. Shum Shun Hong [1972] HKLR 154.) Discounts first arose in The Attorney General v. Tsang Wing [1975] HKLR 365 at 368 where the court remarked, having substituted a sentence of three years for the one year imposed at trial, that they did not pass a greater sentence "only because these are review proceedings". This approach was approved and adopted in The Attorney General v. Yu Kin Keung [1976] HKLR 236. Since then discounts have been customary.

22. In England reviews of sentence were brought in by the Criminal Justice Act of 1988. Again in England no discounts were given in the first of the series of reviews which the Attorney General saw fit to bring - for example, A.G. Ref. No.1 of 1989 [1989] 1 WLR 1117 where the full sentence which the court thought should have been given at trial was imposed. However, in A.G. Ref. No.4 of 1989 (1989) 11 Cr App.R.(S) 489, Lord Lane C.J. had given an: indication that some form of discount - although he did not specifically make reference to that word - might be considered. At p.491, he said:

"He [Lord Hooson for the respondent] then adds this final feature, that in this sort of case, a reference by the Attorney-General, means that for the second time the defendant must face the prospect of a custodial sentence. That is plainly a matter which has to be borne in mind by this Court when undertaking this type of reference. As Lord Hooson rightly says, that is even more the case when the original sentence was a non-custodial one and where this Court is minded, as it is in this case, to pass a custodial sentence."

23. In A.G. Rer. 8, 9, 10, 11 and 16 of 1990 (1991) 92 Cr.App.R. 166 at 172 Lord Lane C.J. repeated that which was said in Major [A.G. kef. No.2 of 1989 (1989) 11 Cr. App. R. (S) 481:

"We take into account the fact that this is a reference. Any reference itself no doubt would produce an added anxiety in the mind of the offender".

 

Having done so Lord Lane C.J. went on:

 

"That is a matter which the Court has to bear in mind in all these references."

24. He did not state in what manner this should be implemented.

25. However, in A.G. Ref. No. 15 of 1990 (1991) 92 Cr.App.R. 194 at 199, where it was suggested by counsel for the respondent that there were matters which had occurred since the imposition of the original sentence which could justify the court in taking a less severe view than otherwise might be the case, the Lord Chief Justice felt that the Court would not be, because of those matters justified in coming below guideline figures already established.

26. In Australia, some authorities have not considered a discount appropriate whereas in others, in particular Holder and Johnston (1983) 3 A. Crim.R. 375 which was followed in Nolan 34 A. Crim.R. 19, it was considered that, as questions of double jeopardy did arise, there could be a discount. It is noteworthy that in Pryce v. Sawtell (1988) 32 A.Crim.R. III the principle against double jeopardy was acknowledged and the court did not impose the sentence which it considered should have been imposed at first instance, this because the respondent had served his original sentence before the review application came on for hearing.

27. In exercising the discretion which we consider this court to have we think that there should be borne in mind that, where a person is serving a prison sentence, this court should, generally, impose the sentence it thinks the trial judge should nave imposed and without a discount. A discount can, however, be properly considered in cases where: the respondent is very close to the end of his sentence or where the sentence imposed by this court is greatly in excess of the original sentence.

28. Where the respondent has been at liberty since conviction because of the nature of the sentence imposed, or has already served the original sentence then a discount would usually be given, the amount depending upon the particular circumstances.

29. Having granted, as we have indicated, the Attorney General's application, we quash the sentence of 10 years imprisonment and consider the proper sentence, having regard to "all the considerations which are normally taken into account" when determining an appropriate sentence for the offence as charged, to be one of 15 years imprisonment. As we are departing in this judgment from that which has been the norm we do not think that which will pertain in the future should be made applicable to this respondent. We will therefore impose a sentence of 14 years imprisonment.