HKSAR v. P.S.Y.

CACC 279/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 279 OF 2015

(ON APPEAL FROM HCCC NO. 303 OF 2014)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court):

1.The applicant seeks leave to appeal against the sentences of 8 years’ and 15 years and 4 months’ imprisonment imposed on him following his conviction on his pleas of guilty before Deputy High Court Judge Tallentire on 15 May 2015 of two counts of trafficking unlawfully in a dangerous drug, namely, 220 grammes of cocaine (Count 1) and 1,010 grammes of cocaine hydrochloride and 690 grammes of a solid containing 650 grammes of cocaine (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The judge ordered that 7 years of the 15 years and 4 months’ imprisonment imposed in respect of Charge 2 was to be served concurrently with the sentence of imprisonment imposed in respect of Charge 1. Accordingly, the total sentence imposed on the applicant was 15 years’ imprisonment. At the hearing we allowed the application to leave to appeal against sentence, quashed the sentences imposed by the judge and substituted other sentences of imprisonment. We said that we would give our reasons for doing so in due course. That, we do now.

The facts

2.At about 8:30 pm on 25 January 2014, a police officer intercepted the applicant as he walked out of the main gate of Chung Hing Building, 22 Nam Kok Road, Kowloon City, and revealed that he was a policeman. 

3.A search of the applicant revealed a package of what, on analysis, was confirmed to be 220 grammes of cocaine in the left-hand side pocket of the applicant’s jacket.  Having been arrested and cautioned, he admitted that someone called ‘Peter’ had asked him to go upstairs, by which he said he meant Chung Hing Building, to collect a packet of ‘coke’ for delivery to others.  A bunch of four keys, four mobile phones and over $39,000 were found on the applicant.

4.Using one of the four keys the party of police officers opened the ground floor metal gate and entered Chung Hing Building together with the applicant, who led them to Flat A, 2/F.  There they used another of the four keys to open the lock to those premises.  Having used the combination code provided by the applicant to open the padlock on the bolt of the door to Room 3, the police officers entered the room with the applicant.  Inside they found drug manufacturing paraphernalia and a bag containing a powder, subsequently found to be 1,010 grammes of cocaine hydrochloride and another bag containing a crystalline substance, subsequently found to be 650 grammes of cocaine, as stipulated in the Particulars of Offence of Charge 2.  Having been cautioned again the applicant denied that he was involved in the manufacture of dangerous drugs.  Rather, he said that he was responsible for taking the bag of cocaine hydrochloride to Room 3, where it had been found.  Further, he took the bag of cocaine found in his possession away from those premises.

5.In the final paragraph of the Summary of Facts, the applicant accepted that he “was in possession of all the dangerous drugs seized for the purposes of traffic.”

Reasons for sentence

6.In his reasons for sentence the judge noted that, although the applicant had 12 convictions for criminal offences, none of them was for a similar offence.  Further, he noted that the total amount of narcotic involved in the offences was 1,880 grammes.

Starting point for sentence

7.In identifying the appropriate starting point for sentence, the judge said that the total amount of narcotic in which the applicant had trafficked unlawfully was “approximately 1.9 kg” which “places it within the range of 23 to 26 years.”

8.Then, the judge said that he adopted a starting point for sentence of 12 years’ and 23½ years’ imprisonment respectively for Charges 1 and 2.

9.Having noted that Mr Boyton, who appeared for the applicant, had asked for a further discount in sentence to reflect the applicant’s assistance in leading the authorities to the premises where the dangerous drugs the subject of Charge 2 were seized, in addition to that which would be afforded for the applicant’s plea of guilty, the judge said that he would reduce the “total imprisonment” that he would otherwise have imposed from 15 years and 8 months’ imprisonment to 15 years’ imprisonment.  He said that he did so to reflect that aspect of the applicant’s assistance to the authorities, “by leading them to the second amount of narcotics.” [1]

Sentence

10.In the result, the judge sentenced the applicant to 8 years’ imprisonment on Charge 1 and 15 years and 4 months’ imprisonment on Charge 2, ordering that 7 years of the sentence of imprisonment imposed in respect of Charge 2 was to be served consecutively to the sentence of 8 years’ imprisonment imposed in respect of Charge 1.

Grounds of appeal

11.In the Perfected Grounds of Appeal against sentence advanced on behalf of the applicant in support of the application for leave to appeal, Mr Victor Ho complained that the judge erred in failing to afford the applicant an additional discount of sentence to reflect the applicant’s assistance to the authorities.  During the hearing we granted Mr Ho leave to amend the grounds of appeal to add ground 2, by which complaint was made that the judge ought to have afforded the applicant a, “further discount in view of his full co-operation with the police which led to the discovery of a more serious offence, that is Charge 2.”

The respondent’s submissions

12.Mr Franco Kuan, for the respondent, acknowledged that the applicant had provided useful assistance to the police.  Mr Kuan suggested that the applicant ought to be afforded a discount of 40% for that aspect of his assistance to the authorities.[2] He submitted that in failing to afford the applicant a discount of 40% from that taken as the starting point the judge had erred.

13.In addition, Mr Kuan accepted that the applicant was entitled to a further discount to reflect his co-operation with the police in leading them to the premises in which a substantial amount of cocaine and cocaine hydrochloride was found together with the paraphernalia for manufacture of dangerous drugs and to admitting possession of those dangerous drugs.  He drew the court’s attention to a number of its decisions relevant to the issue of the discount to be afforded to a defendant where he had made an admission of an offence the prosecution could not otherwise prove.[3] He submitted that the extent of the discount lay entirely within the discretion of the court.[4] 

14.Of the extent of the applicant’s assistance, in his oral submissions Mr Kuan said that it merely resulted in the police officers discovering and seizing the dangerous drugs in Room 3 more quickly than they would have done otherwise.  There were no fewer than seven police officers from Narcotics Bureau engaged in the surveillance that led to the interception of the applicant.  Given that the applicant had admitted that he had collected the cocaine found on his person from Chung Hing Building, which was a small old-fashioned building of four floors on each of which floors there were four flats, he suggested that inevitably the police officers would have found the dangerous drugs, albeit that it would have taken longer than it did with the cooperation of the applicant.

A consideration of the submissions

15.It is readily apparent from the judge’s reasons for sentence he did not afford the applicant a discount to reflect his assistance to the authorities subsequent to the day of his arrest.  We are satisfied that the judge fell into error.  As Mr Kuan conceded, and as is apparent from the papers available to the court, the judge ought to have afforded the applicant a discount from the starting points taken for sentence of 40% to reflect that assistance.

16.In addition, the applicant was entitled to a further small discount to reflect the fact that he assisted the police officers to find and seize the dangerous drugs the subject of Charge 2 sooner than they otherwise would have done.  Also, he assisted their case by making admissions of his possession of those dangerous drugs.

17.Given that the dangerous drugs found in the physical possession of the applicant and that found in Room 3 were found within a short period of time and in very close proximity with each other, there was no justification for making part of the sentence imposed in respect of Charge 2 consecutive to the sentence of imprisonment imposed in respect of Charge 1.  Further, the judge gave no explanation for why he applied the discount in respect of the assistance given by the applicant in locating the dangerous drugs the subject of Charge 2 only after he had applied a one-third discount for the applicant’s pleas of guilty.

18.The judge’s discretion having miscarried, we determined to quash the sentences imposed by him and to sentence afresh.  In our judgment there are two separate aspects of the assistance given by the applicant to the authorities which merit separate discounts.  The applicant is entitled to a discount of 40% from the starting points taken for sentence for his assistance in providing information that led to the arrests, prosecution and conviction of another person for unlawful trafficking in dangerous drugs.  In addition, he is entitled to a small further discount for the second aspect of his assistance, namely assisting the police officers to find and seize the dangerous drug sooner than they would otherwise have done and admitting his possession of those dangerous drugs.

19.We take the starting points for sentence identified by the judge of 12 years’ and 23½ years’ imprisonment respectively.  As we have said, the appropriate discount to be applied to the starting points taken for sentence is about 40%.  In the result, we impose a sentence of 7 years and 2 months’ imprisonment in respect of Charge 1.  Affording the applicant a discount of about 40% from the starting point taken for Charge 2, results in a sentence of 14 years and 1 month’s imprisonment.  However, affording the applicant a small further discount for his cooperation with the police in respect of the dangerous drugs the subject of Charge 2, we sentenced the applicant to 13 years and 11 months’ imprisonment.  We ordered that those sentences be served concurrently.  Accordingly, the total sentence of imprisonment imposed on the applicant was 13 years and 11 months’ imprisonment.

Mr Franco Kuan, SPP, of the Department of Justice, for the respondent

Mr Victor Ho and Mr Eric Chau, instructed by Eric Cheung & Lau, for the applicant