HKSAR v. Mok Man Wai

HCCC 159/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 159 OF 2014

_______________

_______________

----------------------------------------------------

REASONS FOR SENTENCE

----------------------------------------------------

Introduction

1.The two defendants, on separate occasions and on different summary of facts, have pleaded guilty to trafficking in a dangerous drug. These are my reasons for the sentence that I have imposed on them. 

2.In the early morning on 14 October 2013, the two defendants were apprehended by the police after a vehicle driven by the 1^st defendant, in which the 2^nd defendant was a passenger, sought to evade a police roadblock.  The police pursued the vehicle which they eventually stopped and upon a search of it found inside 14.58 g of a crystalline solid containing 14.26 g of methamphetamine hydrochloride, commonly known as Ice.  The two defendants were arrested and charged with trafficking in a dangerous drug.

Case history

3.On 11 April 2014, in the Magistrates’ Court, the defendants, after indicating they would plead not guilty, were committed for trial in the Court of First Instance for the offence of trafficking in the drugs that had been seized. 

4.On 4 June 2014, in the High Court, the defendants’ case was listed for pre-trial review on 1 December 2014 and a seven-day trial commencing on 26 January 2015.

5.By letter dated 28 November 2014, the solicitors for the 2^nd defendant indicated to the Court that it was highly likely that their client would plead guilty to the charge he faced. 

6.At the pre-trial review on 1 December 2014, counsel for the 2^nd defendant, confirmed that her client would plead guilty, whilst counsel for the 1^st defendant indicated that his client would proceed to trial.  Matters were then discussed and directions given in relation to the 1^st defendant’s trial. 

7.On 26 January 2015, on the first day of trial, the 2^nd defendant pleaded guilty upon an agreed summary of facts. The sentence of the 2^nd defendant was therefore adjourned until the conclusion of the 1^st defendant’s trial.  It was noted by the prosecutor that the possibility had been raised that morning of the 2^nd defendant giving evidence at the trial of the 1^st defendant and that he needed to assess the case and decide whether or not to call the 2^nd defendant as a prosecution witness.

8.At the hearing on 26 January 2015, the Court was informed by new counsel for the 1^st defendant that his client had on 18 December 2014 terminated the services of his previous legal representatives who were on legal aid and that he was now represented by a new set of legal representatives who were also on legal aid. 

9.What is claimed to have happened is that the 1^st defendant terminated the services of his first set of legal representatives because he had lost confidence in them and sought to make arrangements to commission private legal representatives.  He was unable to obtain the funds necessary to do so and therefore reapplied for legal aid.   

10.It was the case that legal aid had been officially discharged for the 1^st defendant by notice dated 13 January 2015 and was re-granted to him for a new set of legal representatives by notice dated 23 January 2015.  As a result, the new counsel for the 1^st defendant, explained that he had only been briefed to appear for the 1^st defendant on the Friday before the first day of trial which fell on a Monday.  Counsel requested that the trial dates be vacated in order to give him time to prepare the 1^st defendant’s case for trial as he had instructions that his client wished to contest the charge against him.  Whilst the Court expressed its grave disquiet about the last minute change of arrangements with legal representation and the disruption that it had caused, the trial dates were nevertheless vacated.

11.On 26 February 2015, the 1^st defendant’s case came up for relisting.  It is to be noted that the 1^st defendant still maintained his plea of not guilty and that he would contest the charge.  A pre-trial review was fixed for 11 December 2015 and a five day trial was fixed for 18 February 2016. 

12.By letter dated 8 December 2015, the solicitors for the 1^st defendant indicated to the Court that their client would plead guilty to the charge that he faced.  The 1^st defendant’s plea and sentence, and the 2^nd defendant sentence, were fixed for the first day of trial on 18 February 2016.

Delay to the trial process

13.It has not escaped the Court’s attention that there has developed a practice by some defendants on remand, awaiting trial for serious offences, generally for trafficking in dangerous drugs, to adjourn or delay the proceedings by terminating the services of their legal representatives, either prior to or during trial, or, on a plea of guilty, by offering to assist the authorities when nothing of any substance is forthcoming.  It seems that this practice has developed because of the less restrictive nature of being in custody while on remand awaiting conclusion of the case, as opposed to prison custody after sentence.  Just to mention a few of the less restrictive privileges available to a defendant whilst on remand as compared to prison custody, include greater and more flexible visiting rights, no obligation to work or comply with any work programme, and the separate provision by the defendant of personal items and food to the remand centre.  See the Prison Rules, Cap 234A.  Regretfully, there seems to be occasions where a defendant who is intending to plead guilty seeks to delay the finalisation of his case, so that he can remain on remand for as long as he possibly can, before formally being sentenced and sent to prison. 

14.The practice and trend amongst certain defendants of seeking to adjourn or delay the criminal processes as mentioned, is becoming all too prevalent, not to be by design.  I raise this matter in order to recognise a worrying practice and trend that is having deleterious consequences on the administration of justice, where valuable court time and resources are being wasted and cases have to be rearranged and prepared all over again.

Background facts

15.As indicated, the two defendants have now pleaded guilty, albeit on separate occasions, to the offence of jointly trafficking in a quantity of Ice.  From the summary of facts that they have respectively agreed, the following provides a brief account of the case against them.  The two defendants had known each other for several years before the offence.  In the early morning of 14 October 2013, the 1^st defendant was driving a vehicle with the 2^nd defendant sitting next to him in the front passenger’s seat.  They were travelling towards a police roadblock but when a police officer gave a signal for the vehicle to stop the 1^st defendant did a U-turn and drove off in the opposite direction.  Police officers in a police car pursued the vehicle which they were able to overtake and stop.  The police searched the vehicle and found two transparent resealable plastic bags containing the quantity of Ice as charged: one bag was on the floor in front of the driver’s seat near the accelerator pedal and the other bag was near the handbrake adjacent to the driver’s seat.  The two defendants were arrested and cautioned.

16.The 1^st defendant told the police that the drugs were not his but belonged to the 2^nd defendant.  He admitted that the drugs were Ice.  He said that he was asked by the 2^nd defendant to drive him to the Cheung Fat Estate to give the Ice to somebody.  He said that the 2^nd defendant owed him $40,000 so he dare not refuse to drive him.  He said that at the beginning he did not realise that a big amount of drugs were to be delivered.  He claimed that the 2^nd defendant’s statement that the drugs belonged to him was a lie and that he had never trafficked in drugs.  He said that this was the first time that he had transported the drugs for the 2^nd defendant and added that if he really had to do it, he would not need anyone’s company as he was the driver of the vehicle.  A search of the 1^st defendant’s home revealed nothing of significance.

17.The 2^nd defendant confirmed with the police that the packets contained Ice.  He said that the drugs belonged to the 1^st defendant.  He said he had no idea from where the drugs were obtained and they were in the vehicle when he got in.  He said that they intended to go to a bus stop at the Cheung Fat Estate to deliver the drugs.  He did not know to whom the drugs were to be delivered.  He claimed that the 1^st defendant would treat him to a meal, in that they would smoke Ice, after the delivery.  He acknowledged that he knew they were delivering Ice to someone.  He admitted that he had contact with one of the packets of drugs as he changed the plastic bag because it was dirty.  He said that after he boarded the vehicle driven by the 1^st defendant, they went to a bus stop in Kwai Shing where the 1^st defendant picked up the drugs.  He took out some of the drugs from one of the packets for “takeaway”.  He later said that the 1^st defendant told him that the person who would be given the drugs was “Ah Po” who would call on one of three mobile phones found on him.  He admitted that the Sim card in one of the mobile phones had been given to him by “Ah Po Suk” who would contact him to tell him where they were to meet to hand over the drugs to him. 

18.An examination of the records of the mobile phones found on the 2^nd defendant revealed that he had made a number of calls to a number he identified as belonging to “Ah Po Suk” from 7 to 14 October 2013.  One of the calls occurred just before the police had set up the roadblock.  There were also messages between the 2^nd defendant and “Ah Po Suk”, nine on 12 October and six on 13 October 2013, where “Ah Po Suk” told the 2^nd defendant that he was transferring money to him and asked the 2^nd defendant for certain amounts in numbers to be given to him. 

Mitigation on behalf of the defendants

19.In mitigation for the 1^st defendant, Mr Michael Leung of counsel, explained that his client was single, and at the time of the offence lived with his parents and younger brother.  He worked as a driver earning around $13,000 per month and contributed about $5,000 per month to the household.  He acknowledged that the 1^st defendant had a drug addiction to Ice since 2012.  He explained that the 1^st defendant would buy Ice from the 2^nd defendant once or twice a week.  He said that the 1^st defendant on the day of the offence went to purchase drugs from the 2^nd defendant and went along to assist him convey the drugs involved in the charge. 

20.The 1^st defendant has three previous criminal convictions, one for possession of dangerous drugs which would indicate that he has a drug addiction as claimed. 

21.The 1^st defendant and his mother submitted letters to the Court requesting that he be treated leniently.  But what is apparent from what has been submitted on his behalf is that no meaningful mitigation, other than his plea of guilty, has been advanced to warrant a reduction to his sentence.

22.In mitigation for the 2^nd defendant, Ms Liza Yip of counsel, submitted that her client is 45 years of age and single.  He was the only sibling living with his elderly parents whom he would look after.  He left school at an early age and worked as a casual construction worker earning about $6,000 per month.  He has had an addiction to Ice since 2008. It was submitted that he was to receive some Ice as a reward for making the delivery. 

23.It is also the case with the 2^nd defendant that no meaningful mitigation has been advanced on his behalf, other than his plea of guilty which unlike the 1^st defendant was made early in the proceedings before this Court. 

24.There are two matters that I need to address in relation to the sentence to be imposed on the defendants. 

The different roles of the defendant

25.First is the question of the different roles played by the two defendants in this case.  The two defendants have both admitted that they were knowingly and jointly involved in delivering the Ice. The 2^nd defendant has revealed greater involvement and connection with the person, known as “Ah Po Suk”, to whom the drugs were to be given.  But it would appear that the 1^st defendant was fully aware that he was delivering a large quantity of Ice.  He was, as he has acknowledged, the driver of the vehicle and when he saw the roadblock tried to avoid the police who had to then give chase. 

26.I am not prepared to make any distinction between them for the purposes of sentencing. 

Timely plea

27.Second is the question of whether the 1^st defendant should receive the customary one-third discount for his plea of guilty. 

28.The issue before me is whether the 1^st  defendant should be given a discount, if any, to his sentence for his guilty plea.  It is normally the practice of the Court to grant a discount of sentence of one third to a defendant who pleads guilty.  It is not a rigid rule but it has been adhered to by the Court even when the guilty plea is entered as late as the first day of trial.[1]  The discount is given in recognition of the display of remorse and contrition by the defendant and the saving of the time and expense of a trial.  The principle that guides the granting of a third discount for a guilty plea is that it is made ‘timely’ or ‘in good time’ and thereby has saved court time and resources and avoided the necessity of conducting a trial.  

29.In England and Wales a different approach has been taken as seen in the case of R v David Caley & Others [2013] 2 Cr App R 305, where a one third discount on the plea of guilty is given at the first reasonable opportunity for such a plea, taking into account the stage in the proceedings that the defendant has indicated his intention to plead guilty and the circumstances in which it is given.

30.A critical factor, and one which in my view, should be given far greater prominence than it receives, is the timeliness of the plea.  The importance of a timely plea of guilty to the administration of justice is that it brings finality to the case and thereby saves court time and resources and avoids the conduct of an unnecessary trial and putting witnesses, in particular victims, from going through the ordeal of giving evidence.  It is, however, recognised that if a defendant pleads guilty after an unsuccessful challenge to the admissibility of a confession, a reduction to the customary one third discount would apply and would usually be in the order of 20 per cent or less.[2] It will depend on the particular circumstances of the case.  Once the trial process has got underway, the benefits of a timely plea of guilty have significantly lessened, if a guilty plea is entered further into the trial.  It is for this reason that a discount of less than the customary one third should be given.

31.Likewise, there could be circumstances that may warrant a reduction to the discount for the plea of guilty before the trial has begun because of the conduct of the defendant.

32.There is an issue as to whether the 1^st defendant in the circumstances of the present case deserves the full one-third discount for his guilty plea because it was made after the first trial did not proceed because of his conduct and a second trial was fixed with no change of position on his part. 

33.The Court of Appeal stated in HKSAR v Li Tak Yin [2003] 1 HKLRD 519 at 522E to G:

“12. The question of the plea of guilty and its timing is less straightforward. It is established that ‘in the absence of good reason where a timely plea has been entered, a defendant is entitled to a full one-third discount’. See HKSAR v Wong Ka Kuen & Another (unrep., Crim App No 35 of 1998, [1999] HKEC 112); and see also HKSAR v Lo Chi Yip & Another [2000] 3 HKLRD 270 at p.275, and HKSAR v Yeung Kin Man [2000] 2 HKLRD 821 at p.823.

13. The fact that a guilty plea has been tendered on the first day of trial, where it could have been tendered earlier, is generally not, of itself, without more, sound reason for reducing the discount normally given; although there will be cases and circumstances where a delay or last-minute plea might well warrant such a reduction.”

34.In HKSAR v Ma Ming [2013] 1 HKLRD 813 the Court of Appeal made the following further observations at 820:

“27. A discount of one-third is quite a substantial discount. One of the main purposes of the court giving this one-third discount to a defendant who pleads guilty is to encourage a guilty person to own up to the crimes he committed, so as to conserve the resources of the community and to ensure that justice can be administered more efficiently and matters can be concluded in the most expeditious manner.

28. Difficulties and disputes may arise in carrying out this policy of giving a one-third discount and in deciding what a timely plea of guilty is. Since there is a period of time between the moment when a suspect is put under arrest and the time when he appears in court to face the charge or charges, what happened during that period of time and the attitude taken by the suspect might influence the sentencing decision. If the court has to take into account all these factors before passing sentence, not a few disputes may arise and the sentence that will be passed ultimately would become uncertain. To give one example: is a defendant who admits his guilt forthwith at the outset and cooperates with the prosecution entitled to a larger discount on his sentence when compared with a defendant who makes up his mind to plead guilty only when the trial begins? Many people will think that the answer is yes and, on the face of it, it seems reasonable. However, in order to put this kind of thinking into practice, the court may very likely have to go into fine distinctions and subtle differences between subtleties. Such an approach would lengthen and complicate the court proceedings, increase costs, adversely affect court efficiency and delay the handling of cases which genuinely require the court’s attention. It not only goes contrary to the policy and basic objective of giving a one-third discount, but is also against public interest.”

35.The Court of Appeal’s approach can be contrasted with the approach taken in England and Wales on this issue, as illustrated by section 144(1) of the Criminal Justice Act 2003 which reads:

“(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account –

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and

(b) the circumstances in which this indication was given.”

36.In the case of David Caley that I mentionthe English Court of Appeal stated at 314:

“17. These various procedures all serve a similar end. They aim to advance the point at which everyone can know whether a trial is going to take place or not. The sooner this is done the greater the advantage for the victim and witnesses. The sooner this is done the greater the public saving and preparation of trial-ready evidence by the Crown and in successive Crown Court hearings. The point at which there is, in practice, great saving in the assembly and service of evidence, and in the investigation and making of disclosure, is if and when an indication of a guilty plea is given either in the magistrates’ court or immediately on arrival in the Crown Court. The practice of local CPS branches as to the level or preparation for a case leaving the magistrates’ court by way of committal (whilst this endures), or by way of ‘sending’, may well vary, and this may well underlie some of the variations in locally hammered-out formal schemes. But by the time of a plea and case management hearing a complete or nearly complete trial evidence may often be still to come and there may be other evidence which becomes necessary when once the issues are defined for trial. There are undoubtedly considerable savings still to be made if a plea of guilty is tended on arraignment at such a hearing, but they are normally significantly less that can be achieved if an earlier indication is given.

18. All this leads us to the clear conclusion that, absent particular considerations individual to the case, the first reasonable opportunity for the defendant to indicate (not necessarily enter) his plea of guilty, if that is his mind, is not the [plea and case management hearing], this Court pointed towards this conclusion in Chaytors [2012] EWCA Crim 1810. The first reasonable opportunity is normally either at the magistrates’ court of immediately or arrival in the Crown Court – whether at a preliminary hearing or by way of a locally-approved system for indicating plea through his solicitors.”

37.In the case of the 1^st defendant, it is submitted that he terminated the services of the legal representatives assigned to him by legal aid just before his first trial on the basis that he had lost confidence with them and was arranging privately funded legal representation.  I am told that he could not arrange the funds necessary for private legal representation and reapplied for legal aid which was granted.  He terminated the services of his previous legal representatives on 18 December 2014 and it was later in around January 2015, just before the trial, that he reapplied for legal aid.  It resulted in the trial that was ready to proceed, having to be adjourned and prepared all over again for some future date.  It meant that valuable court time and resources had been lost, and that extensive preparation and arrangements for trial had been wasted.  Not only was serious disruption caused to the criminal processes but the proceedings were also occasioned with unnecessary delay. 

38.I should also point out that all the relevant papers in relation to the case had been served and that the 1^st defendant was informed of the case against him and in a position to make an assessment of the case alleged against him and an informed decision as to how to conduct his case.

39.In my view, the 1^st defendant has not entered a timely plea of guilty and by his conduct he is not deserving of the full one-third discount.  I will reduce his discount for his plea of guilty to 28 per cent.  This is done purely because of the case history that I have described in my reasons and not because I attribute to the 1^st defendant a desire to remain on remand. 

The sentencing tariff

40.The quantity of drugs was 14.58 g of a crystalline solid containing 14.26 g of Ice.  The retail value of the drugs at the time of the offence was $9,871. 

41.The Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of Ice as contained in AG v Ching Kwong Hung [1991] 2 HKLR 125.  This decision was handed down on 9 June 2014.  As this offence occurred in October 2013, the previous sentencing tariff of Ching Kwok Hung applies.  The narcotic content of Ice of 14.26 g falls within the band of 10 to 70 g where the sentence after trial ranges from 7 to 10 years’ imprisonment.  For this quantity of drugs, a starting point of 7 years and 3 months’ imprisonment is adopted. 

The sentences

42.The 2^nd defendant will receive a one-third discount for his plea of guilty which will result in a sentence of 4 years and 10 months’ imprisonment.  The 1^st defendant will receive a 28 per cent discount for the reasons I have given which will result in a sentence of 5 years and 3 months’ imprisonment.

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr Michael Leung, instructed by To, Lam & Co., assigned by Director of Legal Aid, for the 1^st defendant

Ms Liza Yip, instructed by Anthony Kwan & Co., assigned by Director of Legal Aid, for the 2^nd defendant