HKSAR v. Don Amarasinghalage Don Chandra Janaka

CACC 377/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 377 OF 2016

(ON APPEAL FROM HCCC NO 289 OF 2016)

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Before: Hon Macrae JA in Court

Date of Hearing: 26 May 2017

Date of Judgment: 26 May 2017

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J U D G M E N T

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1.This application arises from a retrial, following the quashing of the applicant’s conviction by the Court of Appeal on the ground that the deputy judge had failed to give the jury a proper direction when it had indicated that it was split 4:3[1]. The applicant, however, pleaded guilty before Andrew Chan J (“the judge”) at his re-trial on 25 November 2016 and was convicted on his own plea of one count of trafficking in 26.31 grammes of a crystalline solid containing 25.91 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, the applicant was sentenced to 5 years and 6 months’ imprisonment.

2.The applicant filed a notice of application for leave to appeal (Form XI) on 12 December 2016, seeking to appeal against his sentence.  His application for Legal Aid was subsequently refused, and the applicant is consequently acting in person.

The facts

3.At about 9:05 am on 8 May 2014, a team of police officers intercepted a Sri Lankan male (PW15) at the ground floor lobby of Hing Wah Building, 157 - 171 Wuhu Street, Kowloon, Hong Kong.  PW15 indicated to the police officers that he was living on the rooftop of the building and led the officers to a rooftop hut where his pregnant wife opened the door.  The hut consisted of two rooms; at the time one was being occupied by PW15 and his wife, the other by the applicant and a Filipina female.  Upon a search of the hut, in the presence of the applicant, two packets of suspected “Ice”, inter alia, were found on a rack next to the bed inside the room occupied by the applicant.

4.The applicant was duly arrested and cautioned for the present offence.  The two packets of suspected “Ice” were sent to the Government Chemist for forensic examination.  One packet was subsequently found to contain 0.36 gramme of the narcotic component of “Ice”, while the other contained 25.55 grammes.  The estimated retail value of the dangerous drugs seized was HK$11,103.

5.On pleading guilty, the applicant admitted that the two packets of “Ice” were in his possession for the purpose of unlawful trafficking.

6.It was also admitted that during the course of his first trial, the applicant had testified that he had become a frequent user of “Ice” under the influence of a Pakistani male, and that the male in question had come to his room on the morning of his arrest after a night of consuming “Ice” in Tsim Sha Tsui.

Mitigation

7.The applicant was 47 years old at the time of his sentence.  He originated from Sri Lanka and he had come to Hong Kong alone to seek asylum in 2006.  He had a daughter and a son, who were 21 and 13 years of age respectively.  Defence counsel at the sentencing hearing submitted that the applicant had been waiting 10 years for his asylum claim to be concluded. As a middle aged man, who was separated from his family and unable to work, he was subjected to temptation, particularly since the Pakistani male was said to prey on asylum seekers such as the applicant in order to groom them for drug trafficking.

8.Defence counsel explained to the court that the applicant had originally faced three counts at his first trial, namely: possession of a stun gun, of which he was acquitted by the jury; trafficking in a dangerous drug, which was the subject of the re-trial; and possession of dangerous drugs, for which he was convicted at the original trial and sentenced to a consecutive term of 3 months’ imprisonment[2]. The applicant was later separately charged with possession of an offensive weapon, namely two knives, on 8 May 2014 and was given a further one month’s imprisonment.  Defence counsel asked the court to take these sentences into account, submitting that had all the charges been sentenced together, the sentences would have been made concurrent with each other, in view of the seriousness of the trafficking offence; and given the small quantity of drugs for his own consumption, and the fact that the knives were used for safeguarding the dangerous drugs.

9.Regarding the appropriate sentence, defence counsel submitted that a guilty plea entered at a re-trial would normally attract a discount of about 25%, subject to the trial judge’s overriding discretion.  He urged the court to exercise its discretion and give the applicant a greater than 25% discount.  Further, counsel submitted that about 5 to 7 grammes of the “Ice” (or “about 20%” of the whole) was for the applicant’s own consumption.  Acknowledging the judge’s comment that the difference in sentence for trafficking in 20 or 25 grammes of “Ice” was not significant, counsel nevertheless urged the court to exercise its discretion and pass as lenient a sentence as possible.

Reasons for sentence

10.The judge dealt first with the issue of the applicant’s own consumption.  Assuming that all of the “Ice” seized was for trafficking, he held that the starting point for 25.91 grammes of the narcotic element in “Ice” would be 96 months’ imprisonment; whereas, if one assumed that only 20 grammes of narcotic was for trafficking, the starting point would be 92 months’ imprisonment.  Given that possession of a dangerous drug was itself a criminal offence, he considered that the proper starting point would lie somewhere between the two figures, the difference being in any event very small.

11.The judge was of the view that the appropriate starting point should in the circumstances be the same as the original trial, namely 93 months’ (or 7 years and 9 months’) imprisonment.  Since the applicant had entered his plea of guilty at a re-trial, the judge granted the applicant about a 25% discount for his plea, which reduced the sentence to 69 months’ (or 5 years and 9 months’) imprisonment.

12.The judge considered that had the offence of possession of dangerous drugs, for which the applicant had been convicted at the original trial, also been before him, that sentence would very likely have been ordered to run concurrently with the trafficking offence.  Since the applicant had already served 3 months’ imprisonment for that offence prior to the re-trial, the judge reduced the sentence by a further 3 months, making an ultimate sentence of 66 months’ (or 5 years and 6 months’) imprisonment.

Grounds of appeal

13.In his Form XI filed on 12 December 2016, the applicant did not advance any grounds of appeal, save to suggest that he believed there were some grounds to reduce his sentence.

The respondent’s reply

14.Mr Prakash Daryanani, in written submissions on behalf of the respondent, has suggested that if the judge was prepared to accept that some 6 grammes of “Ice” was for the applicant’s own consumption, that would represent roughly 24% of the whole amount in which the applicant was trafficking.  The question would then arise whether that was a significant enough proportion to make any difference to the appropriate sentence for trafficking in the whole amount.

15.If 24% was regarded as a significant proportion, it could be argued that the judge should have at least afforded the applicant a discount of 10%, being the lowest discount approved in HKSAR v Chow Chun Sang[3], for this factor.  On this argument, he suggests that the sentence could have been 10% less than the 93 months’ imprisonment starting point adopted by the judge, resulting in a sentence after plea of about 62 months’ imprisonment, rather than the 69 months’ sentence for plea the judge arrived at.

16.Nevertheless, the respondent’s position is that, since the starting point adopted by the judge for the quantity concerned, namely 7 years and 9 months’ imprisonment, was already lower than it should have been on an arithmetical basis, namely 8 years’ imprisonment, the judge’s lower starting point already caters for the element of the applicant’s own alleged consumption of “Ice”.  Mr Daryanani invites me to refuse leave on the basis that, in all the circumstances, the sentence was entirely proper.

Consideration

17.It is not entirely clear whether the judge was prepared to give the applicant any consideration for the assertion by defence counsel that some of the “Ice” was for the applicant’s own consumption, or whether he was simply adopting the same starting point the applicant had received at his first trial[4]. After all, the applicant had admitted that he was trafficking in all of the drugs in question: see para 10 of the Summary of Facts.  But, even if the judge was prepared to assume that 20 grammes was for trafficking on the basis of counsel’s mere assertion, that represented roughly 22.8% (not 24%) of the quantity of overall narcotic concerned.  On these quantities, namely 25.91 grammes and 20 grammes of “Ice”, he considered, in accordance with the guidelines which he had in mind, that the difference would only have been 4 months’ imprisonment in terms of the starting point, namely 96 months’ as against 92 months’ imprisonment.  Yet, as the judge remarked, simple possession of 5 grammes of “Ice” is a substantial amount and a criminal offence in itself.  In the event, the judge adopted a starting point of 93 months’ imprisonment for which he gave a roughly 25% discount for the plea entered at the commencement of a retrial.

18.Ordinarily, I would not have considered that the judge’s exercise of discretion in adopting a starting point of 93 months’ imprisonment for the reasons he gave was open to appeal.  However, there is one matter that appears to have been overlooked by all parties at the retrial, as well as, with respect, by the respondent in this application.

19.The offence with which I am concerned was committed by the applicant on 8 May 2014, one month before the new guidelines in HKSAR v Tam Yi Chun (No 2)[5] in respect of “Ice” were issued on 9 June 2014.  Accordingly, the guidelines which governed this offence were not those set out in HKSAR v Tam Yi Chun (No 2), but those in the earlier guideline case of R v Ching Kwok Hung[6].  In R v Ching Kwok Hung, the sentencing guidelines for trafficking in between 10 and 70 grammes of “Ice” were 7 to 10 years and not, as in HKSAR v Tam Yi Chun (No 2), 7 to 11 years’ imprisonment.  That was why the judge at the first trial (Deputy Judge Campbell-Moffat SC, as she then was) adopted a starting point of 7 years and 9 months’ imprisonment for the quantity of 25.91 grammes of “Ice”: indeed, she specifically, and correctly, referred to the guidelines in R v Ching Kwok Hung as governing the appropriate starting point[7].

20.It seems to me that the judge in the present case (and, with respect, Mr Daryanani) was not correct, therefore, to say that the starting point for 25.91 grammes of “Ice” would have been 8 years’ imprisonment.  In so calculating, the judge was plainly relying on the guidelines in HKSAR v Tam Yi Chun (No 2), which could not apply to the present case[8]. Unfortunately, neither counsel pointed his error out when the judge stated what the respective starting points should be as between 25.91 grammes and 20 grammes of narcotic under those guidelines.  The fact that, by the time of the sentence at the retrial, the offence was more than 2½ years old no doubt contributed the oversight.

21.In my judgment, it is reasonably arguable that the whole sentencing exercise miscarried when the judge inadvertently applied the wrong guidelines to the original starting point.  It is not, therefore, necessary for me to get into a discussion about the discount he might or might not, or should or should not, have given for the mere assertion made in mitigation by defence counsel that some of the drugs were for the applicant’s own consumption.

22.I should caution the applicant, however, that as a result of the application of the wrong guidelines, the sentencing exercise will have to be conducted afresh by the Court of Appeal.  The Court will note that this was a very serious offence, affecting the people and reputation of Hong Kong, committed by an asylum seeker who was permitted to remain on the streets of Hong Kong by virtue of a recognizance issued by the Director of Immigration, while his claim for asylum was being processed.  However, that aggravating feature does not appear to have been considered by either judge at the first or second sentencing exercise, yet it had found articulation by the Court long before the commission of the applicant’s offence[9]. Clearly and obviously, the principle applies to the offence of trafficking in dangerous drugs[10]. Whether the application of the wrong guidelines ultimately avails the applicant, therefore, will be a matter for the Court of Appeal in due course, having heard full argument from the parties.

Conclusion

23.For these reasons, I grant the applicant leave to appeal against sentence.  For that purpose, I shall grant him Legal Aid under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221.

Mr Franco Kuan SPP, of the Department of Justice, for the Respondent (Mr Prakash L Daryanani SPP in written submissions for the Respondent)

The Applicant appeared in person