HKSAR v. YEUNG LEE MING SIMON

[English Translation – 英譯本]
CACC140/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 140 OF 2016

(ON APPEAL FROM HCCC NO. 445 OF 2015)

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JUDGMENT

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Hon Yeung VP (giving the Judgment of the Court):

The facts of the case

1.  The applicant (Yeung Lee Ming Simon) was randomly stopped for inspection by Custom Officers when he returned to Hong Kong from the Mainland through the Lo Wu Control Point at around 9 am on 17 June 2015. Customs Officers found two bags of crystalline solids containing “Ice’ around the applicant’s waist. The crystalline solids weighed 2.99 kg, and the “Ice” weighed 2.91 kg. The street value of the quantity of “Ice” was at HK$1,166,100.

2.  Under caution, the applicant said he delivered the “Ice” to Yau Ma Tei for others for a reward of $2,000. Having been arrested, the applicant indicated his willingness to participate in a controlled delivery operation arranged by Custom Officers, in the hope of bringing those involved in the case to justice. However, the controlled delivery operation was not carried out eventually.

3.  By reason of the above incident, the applicant was charged with the offence of trafficking in a dangerous drug.

4.  The applicant pleaded guilty to the charge before Yau J (the trial judge) and was sentenced to 17 years and 6 months’ imprisonment on 18 April 2016.  Given the quantity of the “Ice” and following the sentencing guideline laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the trial judge took a starting point for sentence of 24 years and 10 months’ imprisonment. The trial judge enhanced the starting point for sentence by 2 years and 8 months’ imprisonment to one of 27 years and 6 months’ imprisonment because of the cross-border element of the applicant’s offence.

5.  Apart from the one-third discount the applicant was entitled to for his plea of guilty, the trial judge also gave him an extra discount of about 3% because of his willingness to participate in the controlled delivery operation, thereby arriving at a sentence of 17 years and 6 months’ imprisonment. The prosecution contended that after the applicant had been arrested at around 4:35 pm on 17 June 2015, he indicated his willingness to participate in a controlled delivery operation. However, after Customs Officers had got ready for the controlled delivery arrangements, the applicant indicated that he needed to take “Methadone” at around 8 pm the same day. It was almost 9:30 pm after the applicant had taken “Methadone”. Looking tired and yawning non-stop at the time, the applicant changed his mind and indicated that he was no longer willing to take part in the controlled delivery operation. The applicant disagreed to what the prosecution alleged. The applicant’s position was that after he had taken “Methadone” at 9 pm, a Customs Officer said to him, “Hey, it’s so late after so many hours have passed. You aren’t doing it, are you?” He then replied, “Oh, don’t do it then.”

Grounds of appeal

6.  The main ground of appeal put forward by the applicant was that the enhancement of sentence by 2 years and 8 months’ imprisonment by the trial judge for the cross-border element was excessive, and that the appropriate range of the enhancement should be within 2 years. The applicant also indicated that a discount of about 3% for his participation in a controlled delivery operation was inadequate for the reason that there were authorities showing that the discount on sentence of imprisonment should not be less than 7%. The applicant said he was remorseful for the incident. He was willing to accept and bear the consequences of the offence. He said when he was in prison, he treasured his family and hoped he could be forgiven by his family, including his wife and two children. He also hoped for a chance to mend his ways and go back to the community as soon as possible to become a useful person.

Discussion

7.  The sentence of 17 years and 6 months’ imprisonment imposed on the applicant was reflected in a starting point for sentence of 26 years and 3 months’ imprisonment. The trial judge initially was minded to adopt a starting point for sentence of 27 years and 6 months’ imprisonment, but finally reduced it to one of 26 years and 3 months due to the applicant’s willingness to participate in a controlled delivery operation.

8.  If a drug trafficking offender who has been arrested shows a genuine willingness to assist the authorities and participates in a controlled delivery operation in the hope of making the authorities successful in bringing the persons involved to justice, the court should give him a discount on sentence as encouragement. However, the percentage of discount will necessarily vary according to the different circumstances of individual cases. In HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, the Court of Appeal held that in determining the percentage of discount on sentence of imprisonment, the factors to which the court should have regard would include: (1) the nature and effect of any voluntary participation; (2) the outcome of the assistance; (3) the degree or extent of assistance which had been provided; and (4) whether or not the assistance causes the defendant to expose himself or his family to any risk. The Court of Appeal made it clear that it was inappropriate to set a certain range of percentages of discount on the sentence of imprisonment.

9.  In the present case, whether or not the applicant had been genuinely willing to assist the authorities by taking part in the controlled delivery operation is disputed. It was the prosecution case that the applicant who had been arrested indicated his willingness to take part in a controlled delivery. However, after Customs Officers had made arrangements for the controlled delivery, the applicant said that he needed to take “Methadone”. Having taken “Methadone”, the applicant changed his mind and refused to continue with the controlled delivery. But the case for the applicant was that he had not refused to take part in a controlled delivery. Having considered that it was late after he had taken “Methadone” and it had been quite some time since his arrest, the Customs Officer suggested that he give up the controlled delivery operation. To address the said dispute properly, the trial judge must conduct a hearing on the issue. However, the trial judge eventually considered it not necessary to conduct a hearing. The trial judge might have erred in so doing, if his decision on the said dispute was against the applicant.

10.  The trial judge’s decision, however, showed that he did not accept the prosecution case. If the trial judge considered that the applicant deliberately refused to take part in the controlled delivery, he could not possibly have given him any discount on the sentence of imprisonment. The fact that the trial judge gave the applicant a discount of about 3% showed that he accepted that the applicant voluntarily took part in a controlled delivery. Under such circumstances, we need to consider whether the discount of about 3% obtained by the applicant was adequate or not.

11.  Although the applicant indicated his willingness to participate in the controlled delivery, he was not active. In any event, the controlled delivery was not carried out eventually with no outcome resulted. The applicant would not expose himself and his family to risk of any nature because of the controlled delivery. Under such circumstances, the trial judge did not err, in principle, in exercising his discretion to give the applicant a discount of about 3%. The percentage of the discount was not wholly unreasonable. We have no reasonable basis to disturb the trial judge’s exercise of his discretion.

12.  However, another issue we must consider is whether or not it was proper for the trial judge to enhance the sentence of imprisonment by 2 years and 8 months’ imprisonment for the cross-border element involved in the case.

13.  In sentencing, the trial judge stated that when he considered the level of enhancement for the cross-border element, he had taken account of HKSAR v Chung Ping Kun (CACC85/2014). In that case, the Court of Appeal was of the view that for quantities of drugs between 500 and 1,000 grammes the range of enhancement for a cross-border element should be 1 to 2 years. The Court of Appeal cited a number of authorities which showed that even with large quantities of drugs involved, the range of enhancement for a cross-border element was within 2 years.

14.  We have referred to some serious cases of drug trafficking dealt with by the Court of First Instance. In those cases, the levels of enhancement for a cross-border element were as follows:

Case	Amount of Narcotic	Enhancement
1)   HCCC 143/2015 HKSAR v Chan Ka Yiu	1,670 grammes of ketamine	1.5 years
2)   HCCC 275/2015 HKSAR v Wong Yan Ting	3,260 grammes of ketamine	1.5 years
3)   HCCC 235/2015 HKSAR v Berthy Enciso Rafael	1,400 grammes of cocaine	2 years and 1month
4)   HCCC 526/2014 HKSAR v Chow King Fai	2,390 grammes of cocaine	2 years
5)   HCCC 90/2015 HKSAR v Hernandez Aguirre Miguel Angel	1,299 grammes of cocaine	2 years
6)   HCCC 217/2015 HKSAR v Ruiz Laime Jesica Gladys	4,644.5 grammes of cocaine	1 year
7)   HCCC 32/2016 香港特別行政區訴鄧紫琼	1,420 grammes of ketamine	8 months
8)   HCCC 38/2016 香港特別行政區訴呂美儀	2,976 grammes of ketamine	1 year
9)   HCCC 207/2015 香港特別行政區訴嚴文浩	5,760 grammes of Ice	2 years
10)    HCCC 261/2015 香港特別行政區訴鄢城	8,140 grammes of cocaine	2.5 years
11)    HCCC 403/2015 香港特別行政區訴鄧荻雄	400 grammes of ketamine	2 years

15.  The above cases confirmed that the range of enhancement for a cross-border element in serious cases of drug trafficking generally would not exceed 2 years.

16.  We cannot disregard the fact that the element of a large quantity of drugs involved in a case of drug trafficking has made a defendant face an extremely long term of imprisonment. If the same element is used again to increase substantially the level of enhancement for cross-border offending, the defendant will face double punishment because of the same element. We are of the view that in serious cases of drug trafficking, the range of enhancement for a cross-border element should stop at 2 years. In the present case, the trial judge enhanced the starting point for the applicant’s imprisonment by 2 years and 8 months for the cross-border element. The enhancement was excessive.

17.  We are of the view that the enhancement of 2 years and 8 months caused by the cross-border element should be reduced to one of 2 years, so that the applicable total starting point becomes 26 years and 10 months. The applicant is entitled to a one-third discount for his plea of guilty and also an extra discount of about 3% for his willingness to assist Customs Officers in participating in the controlled delivery operation.

18.  We consider the appropriate way to deal with the matter is to reduce the applicant’s sentence of 17 years and 6 months’ imprisonment by 6 months to one of 17 years. Accordingly, we grant the application for leave to appeal against sentence and allow the appeal. In its place, we substitute the above sentence for the applicant.