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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REASONS FOR JUDGMENT

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

1.The appellant was convicted following a re-trial, his original conviction having been quashed by the Court of Appeal because of the inadequacy of the then judge’s directions to the jury in the event of their disagreement[1]. At his re-trial, however, the appellant pleaded guilty before Andrew Chan J (“the judge”) on 25 November 2016 and was duly convicted 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, following mitigation, the appellant was sentenced to 5 years and 6 months’ (or 66 months’) imprisonment.

2.The appellant filed a notice of application for leave to appeal (Form XI) on 12 December 2016, seeking leave to appeal against his sentence.  Legal aid was refused and the appellant consequently pursued his application for leave in person.

3.At the hearing of his application for leave to appeal against sentence on 26 May 2017, I granted leave, as a Single Judge of the Court of Appeal, on the basis that it was reasonably arguable that the whole sentencing exercise miscarried, when the judge erroneously applied the wrong sentencing guidelines to the original starting point.  The appellant was further granted a Legal Aid certificate in order to pursue his appeal.

The facts

4.At about 9:05 am on 8 May 2014, a team of police officers intercepted a Sri Lankan male (PW15) in the ground floor lobby of Hing Wah Building, situated at 157 - 171 Wuhu Street in Kowloon.  PW15 indicated to the police officers that he was living in the hut on the rooftop of the building and led the officers to the hut, where a pregnant woman opened the door.  On gaining entry to the hut, the officers found that the premises consisted of two rooms; one occupied by PW15 and his wife, the other by the appellant and a Filipina female.  Upon a search of the premises, the officers found two packets of suspected “Ice” on a rack next to the bed inside the appellant’s room.

5.The appellant was duly arrested and cautioned for trafficking in dangerous drugs.  The two packets were subsequently sent to the Government Chemist for forensic examination, and later confirmed to be one packet containing 0.36 gramme of “Ice” narcotic, and another containing 25.55 grammes.  The estimated retail value of the total quantity of 25.91 grammes of narcotic was HK$11,103.

6.By pleading guilty, the appellant admitted that the two packets of “Ice” were in his possession for the purpose of unlawful trafficking.

7.It was further admitted that during the course of his first trial[2], the appellant had testified that, prior to his arrest, he had become a frequent user of “Ice” under the influence of a “Pakistani man”, who had been to his room on the morning of his arrest after a night of consuming “Ice” in Tsim Sha Tsui.

Mitigation

8.The appellant was 47 years of age at the time of his sentence.  He originated from Sri Lanka and had come to Hong Kong alone to seek asylum in 2006.  He had a daughter and a son in Sri Lanka, who were 21 and 13 years of age respectively.  Mr McGowan, on behalf of the appellant both at the re‑trial and at this appeal, informed the judge that the appellant had been waiting for 10 years and his asylum claim had still not been determined.  As a middle‑aged man, who was separated from his family and not permitted to work, he was subjected to temptation by the Pakistani male who was said to have groomed asylum seekers, such as the appellant, for the specific purpose of trafficking in dangerous drugs.

9.Mr McGowan informed the judge that the appellant had originally faced three counts at his first trial; namely, possession of a stun gun, of which count he was acquitted; trafficking in a dangerous drug, on which count he was convicted after trial but subsequently appealed and was ordered to be retried; and possession of a dangerous drug, for which he was also convicted after trial and sentenced to a term of 3 months’ imprisonment, to run consecutively to the sentence on the trafficking count[3].  Counsel also told the court that the appellant was later separately charged with a single charge of possession of an offensive weapon on 8 May 2014, namely two knives, and given an extra 1 month’s imprisonment in the magistracy.  In fact, that was not quite correct: the sentence was indeed 1 month’s imprisonment, but only 2 weeks of the term were ordered to run consecutively to his existing sentence, the remainder to run concurrently.

10.Defence counsel asked the court to take these sentences of imprisonment into account and submitted that had the appellant been sentenced for all of the offences at the same time, the sentences in respect of the simple possession and possession of offensive weapon charges would have been ordered to run concurrently with the sentence for trafficking, given the small quantity of drugs in his own possession and that the two knives were used for protecting the dangerous drugs.  The knives had in fact been seized on the same day at the same time as the drugs.

11.It was accepted by Mr McGowan that, normally, a guilty plea entered at a re‑trial would attract a lesser discount of about 25%; however, it was submitted that the judge could exercise his discretion to adjust the discount in appropriate circumstances.  Furthermore, since it had been the appellant’s evidence at the original trial before the jury that between 5 and 7 grammes of “Ice” (about 20% of the total seized quantity of the trafficking count) was for his own consumption, notwithstanding the judge’s view that the difference in sentence for trafficking in 25 grammes or 20 grammes of “Ice” was insignificant[4], Mr McGowan urged the court to exercise its discretion and pass an appropriately lenient sentence.

Reasons for sentence

12.The judge firstly dealt with the issue of the appellant’s own consumption of some of the drugs in the trafficking count.  He was of the view that, if one assumed that all of the “Ice” seized was for the purpose of trafficking, the starting point would be 8 years’ (or 96 months’) imprisonment; however, assuming 20 grammes of “Ice” were for trafficking, and 6.31 grammes of the solid were for the appellant’s own consumption, the starting point would be 92 months’ imprisonment.  The judge noted that the proper starting point in the present case would lie somewhere between the two figures and was of the view that the difference was “really very small”.  In any event, given that he was dealing with a re‑trial, he decided to apply the same starting point for this same count as the judge at the original trial, namely 7 years and 9 months’ (or 93 months’) imprisonment.

13.Since the appellant had entered his plea of guilty at a re‑trial, the judge then discounted the starting point by 25%, thus reducing the sentence to 69 months’ imprisonment.

14.The judge noted that had the count of simple possession of dangerous drugs, for which the appellant had been convicted at his original trial, been dealt with at the same time as the trafficking count in the trial before him, it would likely have been ordered to run concurrently with the sentence for the principle offence.  Since, therefore, the appellant had already served the 3 months’ imprisonment for the simple possession offence before the present re‑trial, the judge considered that it was appropriate to set off the 3 months’ imprisonment from the term of 69 months’ imprisonment which he was minded to impose.  In the result, the appellant was sentenced to 5 years and 6 months’ (or 66 months’) imprisonment.

Application for leave before Single Judge

15.On 26 May 2017, at the hearing of the leave application, I observed that at the time the offence was committed, the new sentencing guidelines in respect of the trafficking of “Ice” laid down in HKSAR v Tam Yi Chun[5] had not yet been issued[6].  Accordingly, the guidelines which governed the present offence were not those set out in Tam Yi Chun but those in the earlier guideline case of Attorney General v Ching Kwok Hung[7].  In Ching Kwok Hung, the sentencing guideline for trafficking in between 10 and 70 grammes of “Ice” was 7 to 10 years’ imprisonment after trial, whilst the new guideline for the same quantity under Tam Yi Chun was 7 to 11 years’ imprisonment.  Since the judge stated that the quantity of 25.91 grammes of “Ice” merited a starting point of 8 years’ (or 96 months’) imprisonment, which would have been correct under the new guidelines, but not under the previously applicable guidelines, I was of the initial view that the sentencing exercise conducted by the judge could thereby be said to have miscarried and, accordingly, granted the appellant leave to appeal.

16.Nevertheless, I cautioned the appellant that the consequence of the application by the judge of the wrong set of guidelines would mean that the sentencing exercise would have to be conducted afresh. Since, in sentencing the appellant, the judge did not appear to have acknowledged the aggravating feature in the appellant’s offence that he was an asylum seeker who had committed a very serious crime affecting the people and reputation of Hong Kong, whilst being permitted to remain at liberty in the community, I warned the appellant that the adoption of the wrong sentencing guidelines may not ultimately be to his advantage.

Grounds of appeal

17.In his Perfected Grounds of Appeal filed on 28 June 2017, Mr McGowan has put forward three grounds, namely:

(a) The judge erred in using the guidelines in Tam Yi Chun when determining the starting point, rather than those in Ching Kwok Hung, when the latter were the relevant guidelines as at the date of the appellant’s offence;

(b) The judge erred in failing to give the appellant sufficient discount for his own consumption of part of the “Ice” concerned; and

(c) The appellant’s sentence was wrong in principle and/or manifestly excessive.

18.Mr McGowan submitted that, on an arithmetical approach, applying the former Ching Kwok Hung guidelines, the correct starting point for trafficking in 25.91 grammes of “Ice” should have been 7 years and 9 months’ imprisonment[8] rather than 8 years’ imprisonment under the new Tam Yi Chun guidelines.

19.In respect of Ground 2, Mr McGowan submitted that, in considering the issue of how much discount should be given to the appellant for his own consumption of part of the drugs, the judge had applied the wrong “methodology”, which had coloured his whole consideration of the issue.

20.Since the judge had “accepted” that about 22.8% of the overall quantity of “Ice” was for the appellant’s own consumption, Mr McGowan submitted that the appellant should have been given at least a 10% discount from the correct starting point of 7 years and 9 months’ imprisonment, in addition to the discount for his plea of guilty.

21.Mr McGowan realistically acknowledged that the appellant’s status was an aggravating factor in his sentencing.  However, he asked the Court to note certain features relating to the background of the appellant’s claim for refugee status:

(a) The appellant had fled Sri Lanka during the hostilities at a time when human rights abuses were rife;

(b) The appellant had now waited 10 years for his asylum claim to be determined;

(c) The appellant was separated from his family, was unable to work, and had been exploited by others;

(d) The “Ice” was only worth HK$11,103, before deducting the value in respect of the quantity used for his own consumption.

The respondent’s reply

22.In respect of the judge having erred in applying the wrong guidelines in sentencing, Mr Kuan, on behalf of the respondent, conceded that the sentencing exercise had miscarried and that the appellant should be sentenced afresh.  Applying the guidelines laid down in Ching Kwok Hung arithmetically to the quantity, the starting point for trafficking in 25.91 grammes of “Ice” should have been 7 years and 10 months’ imprisonment[9]; or for trafficking in 20 grammes, 7 years and 6 months’ imprisonment.

23.However, Mr Kuan did not agree with the contention that the sentence should be reduced for the appellant’s supposed own consumption of some of the drugs concerned.  He submitted that the judge did not in fact appear to have accepted counsel’s assertion at the sentencing hearing.  Indeed, the judge specifically commented, during counsel’s address in mitigation, that the quantity said to be for the appellant’s own consumption was “insignificant”; moreover, defence counsel appeared to agree with the judge’s view[10].

24.Furthermore, the respondent argued that the case of HKSAR v Chow Chun Sang[11] did not lay down an immutable rule that the minimum discount that must be given was 10%.  It was clear that the percentage referred to in the case was only applicable in cases where a “significant proportion”[12] of the dangerous drugs were for the defendant’s own consumption, which meant half or more, since all of the defendants/appellants referred to in Chow Chun Sang had used half or more of the drugs concerned for their own consumption.  Hence, the amount of drugs claimed to be for the appellant’s own consumption in the present case[13], even if accepted, did not constitute a “significant proportion” for the purpose of reducing the sentence.

25.Finally, the respondent argued that the Court should not accept a bare assertion from a defendant unless either there was undisputed, or indisputable, evidence that a “significant proportion” of the drugs in question were for the defendant’s own consumption, or unless he was prepared to give evidence on the matter and be tested in cross-examination.  In this case, the appellant did not give evidence.

26.In any event, Mr Kuan submitted that the argument was otiose since the aggravating feature of the appellant’s status far outweighed both the judge’s error as to starting point and any possible discount in respect of the appellant’s own consumption.  He maintained that it is a serious aggravating factor when a torture claimant commits the offence of trafficking in a dangerous drug[14]. Yet inexplicably, such a serious breach of the trust and privilege extended to the appellant by the people of Hong Kong had neither been referred to by the parties nor considered by the judge before sentence was passed.

27.The respondent submitted that the appropriate level of enhancement should be similar to that considered appropriate by the Court in HKSAR v Shah Syed Arif, since the culpability of trafficking in 55 grammes of cocaine and trafficking in 25.91 grammes of a more potent drug, such as “Ice”, was comparable.  The level of enhancement should, therefore, have similarly been 1 year’s imprisonment.

28.Mr Kuan initially submitted that the sentence should now be enhanced to take into account the serious aggravating feature of the appellant’s status when he committed the offence and the sentence accordingly increased, whether or not his claim of possession to some of the drugs for his own consumption was accepted or not.  It is fair to say, however, that as the argument developed before the Court, Mr Kuan acknowledged that it might not be appropriate to increase the sentence of someone to whom leave to appeal had been granted by the Court.

Discussion

29.It is accepted by both parties that the judge proceeded to sentence in accordance with the wrong sentencing guidelines.  That is perhaps understandable given the age of the case and the fact that it was a re‑trial when it came before the judge.  Neither the judge, nor prosecuting counsel nor, it must be said, Mr McGowan for the defence, picked up the fact that the new guidelines in respect of “Ice” did not come into existence until a month after the commission of the appellant’s offence.  Accordingly, the figure adopted by the judge as the appropriate starting point, namely 8 years’ (or 96 months’) imprisonment in respect of 25.91 grammes of “Ice” narcotic was not correct on an arithmetical basis: it should have been 7 years and just over 9 months’ imprisonment.

30.Since the whole basis of the judge’s approach to the correct starting point was mistaken, we are of the view that the sentencing exercise in determining both starting point and the discount which flowed from the starting point miscarried.  Accordingly, this Court is obliged to consider sentence afresh.

31.We would have adopted a starting point of 7 years and 9 months’ (or 93 months’) imprisonment for the quantity of “Ice” concerned, in accordance with the applicable guidelines in Ching Kwok Hung.

32.We do not accede to the argument that any, certainly not any “significant”, proportion of the drugs in questions were for the appellant’s own consumption.  The appellant could have given evidence on the matter.  He did not do so, despite the judge making it clear during mitigation that he did not think such quantity as the appellant was asserting for his own consumption was “significant”.

33.However, there was a significant aggravating feature, which was the appellant’s status at the time he was trafficking in “Ice”.  For trafficking in 25.91 grammes of “Ice”, when, as a non-refoulement claimant, the appellant was given the privilege of remaining at liberty in the community while his claim was being considered, we would have enhanced the starting point by 9 months’ imprisonment, bringing the notional sentence after trial to 102 months’ imprisonment.

34.We would respectfully repeat the recent advice to sentencing judges given by the Court in HKSAR v Mahabul Alam Khan[15]:

“We wish to stress the importance of consistency in sentences where drug trafficking offences are concerned. That is why this sphere of criminal sentencing, more so than any other, is governed by a myriad of sentencing guidelines dealing with different drugs, their quantities and the relevant aggravating features which should apply. When judges, for no good reason, depart from those guidelines and ignore or disregard a recognised aggravating feature of sentencing, other defendants in other cases where the aggravating feature was applied may well wonder, incorrectly but understandably, why they have been dealt with more harshly. Indeed, it is a constant refrain of applicants before this Court that the individual applicant has been dealt with more severely than another in respect of a similar quantity of dangerous drugs.”

35.Given that the plea entered by the appellant was entered at a retrial, following a successful appeal of his conviction in the first trial, which conviction was obviously correct in the light of his subsequent plea, we would adopt the discount considered by the judge, namely 25%.  Accordingly, the sentence becomes 76½ months’ imprisonment.

36.We agree with the submission that recognition should be given for the sentence of 3 months’ imprisonment in respect of the appellant’s conviction for simple possession, and the further sentence of 2 weeks’ imprisonment in respect of his conviction for possession of an offensive weapon, both of which sentences have already been served, and would further reduce the sentence, therefore, by 3½ months to 73 months’ imprisonment.  That is, with respect, the sentence which should have been passed on the appellant by the judge at his re-trial.

37.As it happens, of course, the appellant received a sentence of 5 years and 6 months’ (or 66 months’) imprisonment.  Had the judge applied the aggravating feature that he should have applied to the correct starting point for the quantity concerned, the appellant would have received a heavier sentence of 6 years and 1 month’s (or 73 months’) imprisonment.  The question is whether, having granted leave to appeal as a result of the judge’s error, we should now visit a longer sentence upon the appellant and pass the sentence he should have received.

38.We have concluded that it would not be right to substitute the appellant’s existing sentence of 66 months’ imprisonment with a more severe sentence of 73 months’ imprisonment.  First, the appellant was granted leave to appeal on the basis that there had been an incorrect approach to sentence by the judge.  We have now judged that we were, in the circumstances, compelled to consider sentence afresh in accordance with the correct guidelines.  Secondly, the judge at the first trial did not have regard to the appellant’s status in the sentence she passed either, which may perhaps explain why the judge in the case before us did not deal with it.  Thirdly, although the appellant was warned at the leave stage that the failure of the judge to consider the aggravating feature of his status may not ultimately avail him, even if the judge applied the wrong guidelines to his sentence, he was not warned that he ran the risk of an even higher sentence.

39.In all the circumstances, it would not be fair now to visit a higher sentence upon the appellant than that which he received at trial.  We shall simply dismiss his appeal against sentence.  The appellant should, however, consider himself fortunate that he was not dealt with more harshly in the court below.

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

Mr James H M McGowan, instructed by Ip, Kwan & Co, assigned by the Director of Legal Aid, for the Appellant