HKSAR v. Fan Chi Shing

CACC 102/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 102 OF 2015

(ON APPEAL FROM HCCC NO. 69 OF 2013)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.The applicant seeks leave to appeal against his sentence of 13 years and 10 months’ imprisonment, imposed on 5 March 2015 by Deputy Judge A Wong (as he then was) (“the judge”) in the High Court, upon his plea of guilty to a single count of trafficking unlawfully in a dangerous drug, namely 1.38 kilogrammes of a mixture containing 1 kilogramme of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The applicant was originally tried together with another defendant (“the other defendant”), whose appeal will be dealt with separately.

The facts

3.At around 6 pm on 25 July 2012, the applicant and the other defendant, who were both members of a group tour to Australia, were intercepted by Customs Officers at the Departure Hall of Passenger Terminal One at Hong Kong International Airport.  Nothing was found on a search of their respective luggage.  However, each of them was found to have 10 packages taped to their legs by means of bandages and other wrapping.

4.They were then both arrested at the scene.  The applicant was immediately cautioned and responded that he had been given HK$1,500 to take the “things” to Australia and that he would receive a further HK$100,000 when he had passed the “things” on to another person.  The applicant was found in possession of HK$28,070 and AUD$1,500, while the other defendant was found in possession of HK$13,810 and also AUD$1,500.

5.The applicant later admitted in a video recorded interview the following, inter alia:

(a)  A few months before July 2012, he had been introduced by someone he knew to be in the parallel import business to a man who asked him if he would like to earn some money by travelling free for fun and, if so, to pass his passport to him;

(b)  One or two days afterwards, he passed his passport to the same person who gave him several thousand dollars as well as a SIM card for contact purposes;

(c)  On 23 July 2012, he went to the Mainland where he had a meal with the other defendant and an unknown male, who told the applicant and the other defendant to pack more clothes since they would be going on a trip;

(d)  On the night of 24 July 2012, the applicant carried his luggage to Mongkok, where he was led to a hotel room by a man known as Ah B, who then stayed there with him until the morning of 25 July 2012, when the other defendant arrived;

(e)  Later, another unknown male arrived at the hotel room and told him that he was signed up to join a group tour to Australia; he was also given AUD$1,500 and told that someone would pick him up after he arrived in Australia;

(f)  Some packets were then strapped to him and the other defendant inside the hotel room to be brought to Australia with the promise of a reward of HK$100,000 upon successful delivery; after which the SIM card was retrieved from him; and

(g)  He went by taxi with the other defendant and Ah B to the airport where he and the other defendant were intercepted by Customs Officers after reporting to their tour guide.

6.The Government Chemist certified that the suspected dangerous drugs seized from the applicant and the other defendant were as stated in the respective counts which they faced on the indictment; namely, 1.38 kilogrammes of a mixture containing 1 kilogramme of heroin hydrochloride in respect of the applicant; and 1.37 kilogrammes of a mixture containing 1.02 kilogrammes of heroin hydrochloride in respect of the other defendant.  The street value of the heroin trafficked by the applicant was (as at July 2012) HK$1,018,440, while the street value of the other defendant’s consignment was HK$1,011,060.

The applicant’s mitigation

7.It was submitted on behalf of the applicant that he had been cooperative throughout the investigation and had pleaded guilty.  He had joined a Christian organisation since his incarceration, and was genuinely remorseful.  It was said that the applicant had been suffering from depression and financial pressure, having lost his job as a pallet worker at the airport cargo terminal due to an accident in the workplace, and was enticed into committing the offence.  He had been on sick leave since October 2010[1].

Reasons for sentence

8.After considering the authorities of R v Lau Tak Ming[2] and HKSAR v Abdallah[3], the judge adopted a starting point of 22 years’ imprisonment for the quantity of dangerous drugs found in the applicant’s possession, which he enhanced by 1 year for the aggravating feature involved in attempting to take the dangerous drugs out of Hong Kong to Australia[4].

9.The judge considered that, in addition to the one-third discount in respect of his guilty plea, the applicant was entitled to a further discount because of information which had, with the consent of the prosecution, been placed before him.  The judge assessed the overall quantum of discount at 40%.

10.The applicant was accordingly sentenced to 13 years and 10 months’ imprisonment in respect of the count which he faced.  Furthermore, the judge activated a 2 months’ suspended sentence which had been imposed on the applicant for a possession of dangerous drugs offence four months prior to the commission of the present offence, and ordered it to run consecutively to the 13 years and 10 months.

The applicant’s grounds of appeal against sentence

11.The applicant’s home-made grounds of appeal concern the issues of (i) the starting point; and (ii) the extent of the reduction of sentence for the assistance he provided to the authorities.  He refers to a number of decisions at first instance and on appeal in respect of (i), namely CACC 9/2012, CACC 431/2012 and CACC 341/2013; and, in relation to (ii), CACC 414/1999, HCCC 179/2011, HCCC 517/2011, HCCC 35/2013 and HCCC 326/2013.

12.He also alleges that the Legal Aid Department had, in an earlier court hearing, leaked confidential information in relation to his identity and his willingness and intention to be a prosecution witness, which has led to his being intimidated whilst in prison.  As a result, he has suffered from psychosis, which diagnosis is supported by a psychiatric report dated 24 September 2015 attached to his submissions.

13.The applicant in his submissions further expresses his continued willingness to follow through with the assistance he had already promised to the authorities.

Starting point

14.Ms Audrey Parwani, SPP (Ag), submits on behalf of the respondent that the sentence imposed was entirely proper and consistent with sentencing guidelines.  She contends that the judge gave the applicant the fullest discount available; and that the ultimate sentence imposed on the applicant was not manifestly excessive.  In particular, she submits that

(a) According to Lau Tak Ming[5] and Abdallah[6], the starting point for trafficking in 600 to 1,200 grammes of heroin narcotic should be between 20 and 23 years’ imprisonment; thus on a strictly mathematical calculation, the trafficking unlawfully in 1 kilogramme of heroin would warrant an initial starting point of 22 years’ imprisonment; and

(b) In relation to the enhancement of sentence for the international element, it was said in Abdallah[7] that the Court did not envisage that the enhancement would be less than 2 years’ imprisonment where the weight of the drugs was above 1 kilogramme.

15.For the three cases relied on by the applicant on the issue of starting point, Ms Parwani submits that they confirm the judge’s approach to be in line with established guidelines and sentencing practice.  Those cases are summarised as follows:

	Trafficking in	Starting pt.	Remarks
HKSAR v Gao Lian[8]	0.93 kilogrammes of heroin	21 years	Enhanced by 1 year for the international element
HKSAR v Herico Elsa Valencia[9]	1.07 kilogrammes of heroin	21 years	Enhanced by 2 years for the international element
HKSAR v Mtalu Rajab Ally Rajab[10]	1.058 kilogrammes of heroin	22 years	Sentence: 14 years and 8 months[11]

Assistance to the authorities

16.For the cases submitted by the applicant in respect of his assistance to the authorities, Ms Parwani submits that four of the cases were first instance sentences in the High Court, which were not binding on this Court.  In relation to the authority relied upon by the applicant of HKSAR v Lee Yat Fan[12], she points out that on appeal the applicant, who was found guilty after trial, was given a 20% discount for his assistance, and not 50% as suggested by the applicant.  The applicant had testified at an unrelated defendant’s trial, resulting in the latter’s conviction before a jury.

17.The respondent also relies on the decision of the Court of Final Appeal in Z v HKSAR[13] for the proposition that a usual discount of 40% would normally be given where a defendant has provided useful information or assistance to the authorities, resulting in a conviction, but without having had to testify against those in respect of whom he had provided the information or assistance.  The present applicant had in fact received 39.85%.  In HKSAR v Kay Sik Hong Billy[14], the appellant had been given the equivalent of a 38.8% discount for giving assistance to the authorities, which included the giving of non-prejudicial statement(s) describing the role of his co-conspirators and identifying them.  In the event, the co-defendants had pleaded guilty, thus relieving the appellant of the need to give evidence against them.

18.Ms Parwani submits that, although the applicant before us had given assistance to the authorities, which those authorities were prepared to accept as credible, it had not ultimately led to any fruitful results in terms of convictions or seizures of dangerous drugs.

The applicant’s illness

19.Finally, the respondent submits that the illness of the applicant should not ordinarily entitle him to any further reduction in sentence: see HKSAR v Kwok Kin Ming[15]. Whilst in this case the applicant has claimed that his psychotic disorder was attributable to events which flowed from his offering assistance to the authorities, the respondent contends that the cause of deterioration in the applicant’s mental condition was not apparent from the psychiatric report dated 24 September 2015.

Consideration

20.There can be no argument that the starting point of 22 years’ imprisonment was other than entirely correct under the guidelines in Lau Tak Ming[16] for the quantity of heroin narcotic concerned.  As for the enhancement of that starting point by only 1 year, the judge gave no reasons for not enhancing the sentence for the international element by 2 years’ imprisonment, as prescribed in the guidelines in Abdallah[17].  In failing to give any proper reasons for departing from those guidelines, the judge, with respect, fell into error.

21.Accordingly, the judge ought to have adopted an overall sentence after trial of 24 years’ imprisonment: instead, he adopted a sentence after trial of 23 years’ imprisonment.  The applicant was, therefore, the beneficiary of this error.

22.The discount then accorded to the applicant of 40% was already generous given the fact that ultimately such assistance as he gave to the authorities, although full and from their point of view credible, did not ultimately lead to any fruitful outcome in terms of convictions or, perhaps, seizures of dangerous drugs.  Even if a link could be established between the apparent deterioration in the applicant’s mental condition and the alleged intimidation of him by others, which link the psychiatrist did not make in the report relied upon by the applicant, the applicant has already been sentenced on the basis of a lower notional sentence after trial than he might otherwise have received, as well as receiving a generous 40% discount for assistance which was ultimately fruitless.

23.In the circumstances, even on a view most favourable to the applicant, we do not accept that he merits any further reduction in sentence and the application for leave to appeal against sentence must be refused.

Ms Audrey Parwani SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] Appeal Bundle page 17T

[2] [1990] 2 HKLR 370

[3] [2009] 2 HKLRD 437

[4] Appeal Bundle page 19H

[5] [1990] 2 HKLR 370

[6] [2009] 2 HKLRD 437

[7] [2009] 2 HKLRD 437 at para 43

[8] (unrep., CACC 9/2012)

[9] (unrep., CACC 431/2012)

[10] (unrep., CACC 341/2013)

[11] It should be noted that the original sentence in this case was passed in August 2007, before the practice of enhancement for the aggravating feature of the international element was confirmed by the Court in Abdallah, at para 31

[12] (unrep., CACC 414/1999)

[13] (2007) 10 HKCFAR 183, at 194 D-H

[14] [2014] 1 HKLRD 812

[15] (unrep., CACC 115/2012)

[16] [1990] 2 HKLR 370

[17] [2009] 2 HKLRD 437 at para 43