HKSAR v. Lo Yee Ting

CACC 25/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2016

(ON APPEAL FROM DCCC NO. 471 OF 2015)

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J U D G M E N T

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1.The 1^st and 2^nd applicants (who will be referred to by their trial designations as “D3” and “D4” respectively), along with two other defendants (“D1” and “D2”), faced a joint charge of conspiracy to unlawfully traffic in a dangerous drug, contrary to section 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200. D2 did not appear at his trial. The applicants (together with D1) pleaded not guilty before HH Judge Dufton in the District Court but were convicted as charged on 8 January 2016. On 21 January 2016, D3 was sentenced to 2 years’ imprisonment, while D4 received a sentence of 2 years and 2½ months’ imprisonment.

2.D1 filed a Notice of application for leave to appeal against conviction and sentence (Form XI) on 4 February 2016, but later abandoned his appeal on 4 July 2016.  He no longer falls to be dealt with.  D3 and D4 filed their respective Form XI Notices on 27 and 28 January 2016.

The prosecution case

3.D1 was a prisoner at Lai Chi Kok Reception Centre on the dates covered by the charge, namely between 15 and 20 November 2014.  On 15 November 2014, D3 and D4 visited D1 in prison, which visit was captured by CCTV and audio-recorded.  The CCTV was being monitored at the time in accordance with routine practice by AO II 630 (“PW4”) from a monitoring room within the prison.[1]  Indeed, it was established through cross-examination of this and two other officers that there were notices on display for both prisoners and visitors informing them that their prison visits were being monitored by CCTV, and that their conversations were being recorded.[2]

4.PW4 observed D1 take a piece of paper out and hold it against the glass window.  He believed it was an illegal message.[3] This was also recorded by the CCTV system.  The paper was then removed and put back against the window again, whereupon D3 took out a pen and a piece of paper and copied something down.[4]  D3 then picked up what she had copied down and looked at it.  The conversation between D1, D3 and D4 at the time was also recorded.  In that conversation, inter alia, D4 told D1 to make sure the names were all there and to discard the piece of paper, to which D1 replied “Alright”; while D3 told D1 to tear it up and flush it down the toilet and dissolve it by rubbing it with water.[5]  PW4 reported these events to a senior officer (PW3), who gave instructions to monitor further visits made to D1.

5.On the following day, D3 visited D1 again, this time together with D2.  During the visit, D2 told D1, inter alia, that he would ask someone to find the address and that he would handle other matters; D1 then told him to put on a hat when buying a card and to use a pair of gloves.

6.Subsequent prison visits by D3 and D4 were not relied upon by the prosecution.[6]

7.DSgt 51680 (“PW1”) was then instructed to transcribe what was written on the piece of paper which D1 had been holding on 15 November 2014, and what D3 had copied down, using enlargements[7] of photographs taken from the CCTV recordings.  It was found that the piece of paper set out instructions to buy a 3D card; make a [illegible] stroke in the hidden part of the card; mail the card to Ah Bei (13947-13) Wong Chi Chiu; handle it by putting on gloves throughout the process; ask “[illegible] Chai” to get the stuff and wear a cap while buying the card and mailing the stuff; clean all the stuff first with bleach solution before mailing; seek the address of “Lan Tau” and write down his address for return; and fix it as soon as possible as “we are getting short of time”.[8]

8.On 17 November 2014, clerical staff of the Correctional Services Department were instructed to report any incoming mail addressed to prisoner number 13947-13, Wong Chi Chiu.  On 20 November, a red envelope addressed to the said prisoner was intercepted.  On the reverse of the envelope, the sender was stated to be one Yim Man Ho from an address in Tai Po.[9] Upon examination of the red envelope, a 3D card was found; and hidden inside the card was a packet of suspected dangerous drugs.[10]  These were later examined and found to contain 0.56 grammes of a powder containing 0.27 grammes of ketamine, the street value of which was HK$78.[11]  A subsequent search of D1’s cell found nothing of any significance.[12]

The defence case

9.The applicants chose not to give evidence at trial.[13]  The defence case as put at trial was that it was incredible that D1 would ask D3 and D4 to post drugs to the prison, knowing that their visits were being monitored by CCTV and their conversations recorded.[14]  Nothing heard during the prison visits related to any agreement to conspire to traffic in a dangerous drug.[15]  It was submitted that the fact the prison officers took no action to stop the visit at that time, nor seize the pieces of paper from D1 and D3, indicated that the officers had no clear idea as to the meaning of the contents of the piece of paper.[16]  The address on the reverse of the envelope also stated the sender to be one Yim Man Ho, who could not be confirmed to be the “Lan Tau” indicated in D1’s note, particularly since neither Yim Man Ho nor Wong Chi Chiu were called to give evidence.  Further, it was not proved that Yim was not the sender of the card, or that the address stated was false.[17]

Reasons for Verdict

10.In his reasons for verdict, the judge reminded himself of the burden and standard of proof[18], the drawing of inferences[19], and the law of conspiracy.[20]  He then identified the issue as follows:

“The issue in the case is whether during the prison visit on 15 November D3 and D4 conspired with D1 to post drugs to Wong Chi Chiu, which conspiracy D2 later joined. The determination of this issue depends largely on the interpretation of the instructions written on the piece of paper placed by D1 on the window of the visit point together with what was said by D1, D3 and D4 during the visit and by D1, D2 and D3 during a visit the next day, 16 November 2014.”[21]

11.Having analysed the evidence, the judge held that he was sure the wording on the piece of paper gave instructions for the posting of dangerous drugs to Wong Chi Chiu in Lai Chi Kok Reception Centre:

“32. What the words written on the piece of paper mean were for the court to determine having heard all the evidence. I am satisfied so I am sure that D1 was giving instructions to D3 and D4 to buy a 3D card and mail the card with a stroke in the hidden part of the card to prisoner 13947-13 Wong Chi Chiu.

33. I am satisfied so I am sure the only inference to draw from the instructions to use gloves, wear a cap and clean all the stuff first with bleach before mailing the stuff, is that something which a prisoner was not permitted to have in prison, was to be hidden in the card. If the stuff was something the prisoner was permitted to have there would be no need to use gloves, wear a cap and clean all the stuff first with bleach before mailing the stuff.

...

40. The piece of paper giving instruction to buy a 3D card; put some stuff in the hidden part of the card and mail to Ah Bei (13947-13) Wong Chi Chiu with the address of the sender on the reverse of the envelope, I am satisfied so I am sure that it was no coincidence the red envelope contained a 3D card; was addressed to Wong Chi Chiu, 13947-13; the name and address of the sender was on the reverse of the envelope and hidden inside the card was a packet of ketamine. I am satisfied so I am sure the only inference to draw is that reference in the piece of paper to stroke and the stuff to be mailed was to dangerous drugs and that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.

41. In drawing this inference I have carefully considered the submissions of Mr Allan. Mr Allan submits that it would have been incredible for D1 to ask D3 and D4 to post drugs knowing that the prison visits were monitored by CCTV; their conversations were recorded by audio and prison officers patrolled both the prisoner’s side and visitor’s side during the visits.

42. If the piece of paper stated to post drugs to the prison I would agree with Mr Allan that it would be incredible to do this in full view of prison officers. The piece of paper does not explicitly state that a dangerous drug was to be posted to the prisoner Wong Chi Chiu. Both the piece of paper and that copied by D3 refer to one stroke and the piece of paper to the stuff to be mailed. The submission of Mr Allan does not cause me to doubt the only inference to draw is that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.”[22]

12.As to the fact that neither Yim Man Ho nor Wong Chi Chiu had been called to give evidence, the judge held that:

“Common sense dictates that whoever sent the card containing the ketamine would not put their name and address on the reverse of the envelope. The fact that the prosecution have called neither Wong Chi Chiu nor Yim Man Ho to give evidence does not cause me to doubt the only inference to draw is that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.”[23]

13.The judge then considered the other submissions made by the defence in its closing address and rejected them.[24]  He held that the only inference to draw from the surrounding circumstances and what was recorded as having been said during the visits was that the defendants had conspired to traffic in a dangerous drug to be posted to Wong Chi Chiu.[25]

Mitigation

14.In mitigation, it was submitted that there were no similar authorities for trafficking dangerous drugs into Lai Chi Kok Reception Centre, but the guidelines in Secretary of Justice v Hii Siew Cheng[26] should be adopted.  It was said that the quantity of drugs in this case was very small.

15.On behalf of D3, it was stressed that she was the girlfriend of D1, was 24 years of age and had never been involved with dangerous drugs before.  Her previous conviction for an offence of theft had also become spent.  As for D4, it was submitted that he was only involved in one visit relied upon by the prosecution.  D4 was also a regular volunteer in delivering food to the elderly.

16.It was also argued on behalf of all defendants that since the offence could have been stopped by Correctional Services officers, there was an element of entrapment in allowing it to continue through further visits.[27]  D3 and D4 had been present at trial, unlike D2 who had absconded, had not made unnecessary challenges and had tried to agree evidence.

Reasons for sentence

17.In sentencing, the judge took into account various letters submitted by counsel.  The judge noted that although D3 and D4 were not the instigators of the conspiracy, the crime would not have been committed without their agreement.  Accordingly, no distinction should be drawn in sentence between D1, D3 and D4.[28]

18.The judge noted that the sentencing guidelines in Secretary for Justice v Hii Siew Cheng[29] stipulated sentences of between 2 and 4 years’ imprisonment for trafficking in 1 to 10 grammes of ketamine. Despite the small quantity involved in the present case, the judge considered the smuggling of dangerous drugs into a prison to be a serious aggravating feature in sentencing.  Although the judge could not find any similar cases relating to the smuggling of drugs into prison resulting in a trafficking charge, he considered the possession of drugs cases of Attorney General v Au Kwok Chai[30], HKSAR v Yeung Kwok Wai[31], Tam Wai Lun v HKSAR[32], and HKSAR v Chung Lam[33]. The judge took the view that conspiracy to smuggle dangerous drugs to a prisoner must attract a greater sentence than that imposed on a prisoner for the possession of drugs he himself had smuggled into prison.[34]  Accordingly, he adopted a starting point for the offence of 2 years’ imprisonment.

19.The starting points for D1 and D4 were then increased by 3 months to reflect their criminal records for similar offences of trafficking in dangerous drugs.[35]  Finally, the sentence for D4 was reduced by half a month to give some recognition for his voluntary work.[36]

20.The judge did not accept the defence submission that the actions or inaction of Correctional Services officers had created an element of entrapment, finding that it played no part in the agreement to traffic in dangerous drugs.  The judge did not accept that the agreement of evidence by the defence, thus reducing the number of witnesses called, should warrant a further discount in sentence.  The trial had been listed for seven days and had lasted for seven days.  D1 was accordingly sentenced to 2 years and 3 months’ imprisonment; D3 to 2 years’ imprisonment, and D4 to 2 years and 2½ months’ imprisonment.

Grounds of Appeal

21.In her Form XI, D3 merely stated that she would like to appeal against conviction and sentence, while D4 maintained that the starting point adopted by the trial judge was too heavy.

22.In subsequent letters to the court dated 20 May 2016 and 14 June 2016, D3 submitted as against conviction, that the judge erred in finding that the handwritten message was clear evidence of the conspiracy, without calling Wong (the recipient) or Yim (the sender according to the envelope).[37]  As against her sentence, D3 made the following additional points:

(i)   The sentence was excessive by reference to the case of HKSAR v Wong Wai Sang[38];

(ii)   In the authorities submitted during mitigation, a starting point of 9 months’ imprisonment was adopted where drugs were secreted in the bodies of prisoners with premeditation.  Since no other similar authorities could be found, a similar sentence should have been adopted by the judge;

(iii)   The starting point of 2 years’ imprisonment was too severe for 0.2[7] grammes of ketamine narcotic.[39]  In other trafficking cases, 1 gramme of dangerous drugs would only attract a starting point of 15 months’ imprisonment[40]; and

(iv)   She had obtained no benefit from the case and had not known the precise meaning of the message on the piece of paper, or that it was such a serious offence.[41]

23.In a letter to the court filed on 20 June 2016, D4 submitted that:

(i)   The prosecution had failed to discharge the burden of proving the conspiracy.  The judge had erred in accepting that the defendants had knowledge of what was going on[42];

(ii)   It was unreasonable that Wong, the recipient of the letter, had not been prosecuted[43];

(iii)   The starting point adopted by the judge was excessive[44]; and

(iv)   The judge should not have increased the starting point by 3 months’ imprisonment for D4’s similar convictions, since sentencing tariffs for drugs cases in Hong Kong should be followed.[45]

24.Both applicants have developed these arguments before me this morning.  In particular, D3 has emphasised her essentially “passive role”, while D4 has stressed that the evidence relied upon by the prosecution against him only concerned 15 November 2014, was very limited and has been read out of context.

The respondent’s submissions

25.Mr Daryanani SPP, on behalf of the respondent, submits that there is no merit in the applications for leave to appeal against conviction: the law of conspiracy had been correctly addressed, the inferences drawn were properly based, and any suggested doubts raised by the defence had been appropriately evaluated.  He lays emphasis on the fact that D3 had copied out explicit instructions on a piece of paper and then explained how she would destroy the note, which is hardly something one would say of something innocently recorded.  As for D4, Mr Daryanani says that the instruction to D3 as to what to record came from him.  Shortly afterwards, D4 says he will “handle” things.[46] Accordingly, each was clearly a participant in the conspiracy.

26.As for the absence of the testimony of Wong and Yim, Mr Daryanani submits that their evidence was not necessary in proof of the charge.  In any event, the judge considered the matter and found that it did not cause him to doubt that the only inference to draw was that D1 had given instructions to D3 and D4 to arrange for dangerous drugs to be posted to the prison.  The conspiracy was committed at the time the agreement was formed, and there was no requirement to prove that the subject matter of the agreement had been carried out.

27.Regarding the sentences imposed, the respondent submits that the usual starting point for prisoners found in possession of dangerous drugs was 18 months’ imprisonment: see HKSAR v Lam Hon Kwong[47]. However, cases of trafficking were far more serious than possession, and cases of conspiracy to traffic dangerous drugs into prisons more serious still.  Here, there were four people involved in arranging to smuggle dangerous drugs into a prison, which was necessarily a difficult crime to detect. Thus, he submits that the starting point of 2 years’ imprisonment was appropriate.

28.As for the first instance magisterial case of HKSAR v Wong Wai Sun submitted by D3, I am told that it was apparently a possession of drugs case involving 4.76 grammes of heroin narcotic, which resulted in a sentence of 14 months’ imprisonment upon a plea.  The respondent suggests this case bears no resemblance to the present facts, is not an appellate authority in any event and is simply irrelevant.

29.Finally, it is submitted that the judge was justified in increasing the sentence for D4 as a result of his similar previous convictions: see HKSAR v Chan Pui Chi[48]. Accordingly, the applications should be dismissed.

Consideration

Re conviction

30.This case depended on the judge’s findings of fact from the evidence of the piece of paper and its notation in conjunction with the audio recording and the surrounding events.  Even if the applicants knew their actions and conversations were being monitored and recorded, one would inevitably expect in the circumstances an element of circumspection, obfuscation and obscurity about what they were writing or saying.  The real meaning and purpose of their actions and words were, therefore, matters for the tribunal of fact to determine.  In making that determination, the judge did not have the benefit of the defendants’ evidence to undermine, contradict or explain the meaning of the CCTV and audio recordings.

31.As for the absence of the evidence of Wong and Yim, their evidence was not necessary in order to sustain the charge of conspiracy.  The criminality of the charge lay in the agreement to traffic dangerous drugs.  The visits of 15 and 16 November, and the subsequent receipt of dangerous drugs secreted in a card on 20 November provided ample evidence to prove the existence of that conspiracy and the participation of D3 and D4 in it; even accepting that D4 did not attend the prison visit of 16 November 2014.

32.I can at this stage see no reasonably arguable grounds of appeals against conviction by either of the applicants.

Re sentence

33.This was a case of conspiracy to smuggle dangerous drugs into Lai Chi Kok Reception Centre.  As such, no meaningful comparisons can be drawn with cases of prisoners being found in simple possession of dangerous drugs, nor with cases of trafficking dangerous drugs on the streets of Hong Kong.  A conspiracy to smuggle dangerous drugs into a correctional institution is, by any yardstick, a brazen and extremely serious offence in any ordered, secure and civilized society.  Prisons are designed, for obvious reasons, to be free of dangerous drugs, so that prisoners (and those tasked with the important responsibility of overseeing the welfare and conduct of prisoners) can be kept safe from their ravages and everything with which such drugs are associated.  The smuggling of drugs into a prison undermines everything which prisons stand for.  There must inevitably, therefore, be a significant deterrent component in sentencing.  By the same token, reference to the quantity of dangerous drug concerned is far less relevant in such a case.

34.With reference to what I say at the end of this judgment, a starting point of 2 years’ imprisonment for an offence of conspiring to traffic dangerous drugs into a prison institution might be thought by the appellate courts and the public alike to be very lenient indeed.

35.As for the enhancement of 3 months’ imprisonment in respect of D4, the applicant had two previous convictions for trafficking in dangerous drugs: one in the High Court, one in the District Court.  It was entirely proper in those circumstances to enhance the starting point for D4’s record of persistent conduct: see HKSAR v Chan Pui Chi, at 833B-834C.

36.I can see no reasonably arguable ground of appeal against sentence in respect of either appellant.  The applications for leave to appeal against sentence are also refused.

37.Each applicant is further advised of his/her right to renew his/her application for leave to appeal against conviction and/or sentence to the Court of Appeal, but each is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his/her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The 1^st & 2^nd Applicants appeared in person