HKSAR v. Lo King Ming

CACC 117/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 117 OF 2016

(ON APPEAL FROM HCCC 434 OF 2014)

------------------------

------------------------

__________________________

REASONS FOR JUDGMENT

__________________________

Hon McWalters JA (giving the Reasons for Judgment of the court):

1.On 5 August 2015 the applicant appeared before Yau J (“the judge”) in the Court of First Instance of the High Court and pleaded guilty to two drug-related offences namely, unlawfully trafficking in 0.68 kilogramme of a mixture containing 0.41 kilogramme of heroin hydrochloride and 26.21 grammes of 6‑monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and unlawful possession of 2.87 grammes of a crystalline solid containing 2.83 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 8(1)(a) and (2) of the same Ordinance. On 25 September 2015 he was sentenced to a total period of 10 years 10 months’ imprisonment.

2.On 4 May 2016, over 6 months out of time, the applicant filed a Notice of Application for Leave to Appeal out of time against his sentence. 

3.At the hearing of the application we refused the applicant the extension of time he sought in which to apply for leave to appeal his sentence and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The background to the offences

4.The Summary of Facts that was admitted by the applicant and used for the purpose of his sentencing revealed that on 11 April 2014, at around 9:32 pm, the applicant was intercepted by Customs officers at the Arrival Hall of Lok Ma Chau Control Point.  He was searched and the Customs officers found in one side of his trousers’ pockets a packet containing the dangerous drugs in Count 1, and in the other side of the trousers’ pockets a marker pen, containing the dangerous drug in Count 2.  The applicant then said: “Ah Sir, they are bad things, dangerous drugs”.

5.The applicant was arrested and cautioned.  He was asked what drugs were contained in the marker pen and he answered: “Ah Sir, ice for my own consumption”.  As to the package found in his other pocket, he said:

“I do not know what drugs they are. I only know they are drugs. It was someone who said I would be given HK$1,000. I was asked to bring them through the Customs to Hong Kong and to give them back to a person who would contact me by phone.”

6.The applicant was asked if he would take part in a controlled delivery arranged by the Customs and he agreed to do so.  However, for operational reasons, the Customs officers decided not to proceed with it.

7.The estimated retail value of the heroin hydrochloride that is part of the drugs the subject of Count 1, was HK$459,488.09.

The mitigation

8.The applicant was 41 years of age and worked as a taxi driver at the time of the offence.  He is twice married and has a daughter from his first wife who has finished school and is unemployed.  His second wife divorced him after he was arrested for the present offences. 

9.His counsel informed the court that the applicant had been taking Ice for a number of years and had committed the trafficking offence for financial gain.

10.The judge was invited to give the applicant full credit for his guilty pleas and his willingness to participate in a controlled delivery.  Counsel also informed the court that the applicant “has been (co)operating with them as recently – as very recently.  Unfortunately, it seems that nothing really has come of that”.

The judge’s Reasons for Sentence

11.The judge noted that the applicant had a criminal record consisting of 11 previous convictions, of which five were for drug-related offences but none related to trafficking.  He has been addicted to Ice for a number of years.  He worked as a taxi driver two days a week and earned about $5,000 per month.  In a letter to the judge the applicant expressed remorse and asked for leniency.  In respect of the applicant’s claim that he committed the offence for economic reasons, the judge quite rightly noted that was not a valid ground of mitigation. 

12.In respect of Count 1, the judge said that 6‑monoacetylmorphine hydrochloride was a metabolite of heroin hydrochloride and was more potent.  Referring to HKSAR v Kanfune Bashiri Rajabu CACC 493/2012, he concluded that for the purpose of sentencing the applicant the two dangerous drugs should be regarded as one kind of drug.  The judge, therefore, combined the dangerous drugs in Count 1 and this came to a total of 436.21 grammes of heroin hydrochloride. 

13.The judge applied the guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370, which require that for the unlawful trafficking in 400 to 600 grammes of heroin hydrochloride the starting point should be in the range of 15 to 20 years’ imprisonment, and adopted a starting point of 15 years and 11 months’ imprisonment for Count 1. 

14.The judge then turned to address the fact that the drugs had been trafficked across the Hong Kong/Mainland border.  He said:

“On the contrary, there is an aggravating factor in the present case in that the defendant brought the dangerous drug into Hong Kong from China. This necessitates the starting point to be enhanced.

After considering the whole circumstances of the case and the authorities such as HKSAR v Chung Ping Kun CACC 85/2014; and HKSAR v Zhuo Sailin HCCC 431/2013 the court adopts a starting point of 16 years 9 months imprisonment.”

This represented an enhancement of the starting point by 10 months.  

15.The judge then sentenced the applicant on the first count saying:

“Giving credit to the defendant for his plea of guilty and his willingness to help Customs to carry out the controlled delivery of the dangerous drugs, the court sentences him to 10 years and 10 months’ imprisonment for the 1^st count”.

16.It is clear that in reaching this final sentence, the judge must have afforded the applicant a further 4-month, or approximately 2%, discount for Count 1 on top of a full one-third discount for his guilty plea.

17.In respect of Count 2, the judge referred to HKSAR v Mok Cho Tik [2001] 1 HKC 261 and said that an appropriate starting point would be in the range of 12 to 18 months’ imprisonment.  He then assessed the latent risk of the Ice falling into the hands of other people and this consideration prompted him to adopt a starting point of 15 months’ imprisonment which he discounted by one-third, resulting in an ultimate sentence of 10 months’ imprisonment.

18.The judge ordered that both sentences should run concurrently with each other thereby resulting in a total sentence of 10 years and 10 months’ imprisonment.

The application for an extension of time in which to apply for leave to appeal

19.The applicant is out of time by over 6 months.  In support of his application for an extension of time in which to apply for leave to appeal his sentence he filed an affirmation together with his Form XI on 4 May 2016.  In his affirmation the applicant stated that he did not file his Notice of Application for Leave to Appeal within time as at the time of the appeal period he had not been able to identify any grounds of appeal.  But, he said: “Now I have found the grounds of appeal.”  His grounds of appeal, as articulated in his Form XI, are no more than an assertion that “the sentence is excessive”. 

20.The applicant applied for, but was refused, legal aid on 26 May 2016.  He applied for legal aid again and was granted an Appeal Aid Certificate by the Director of Legal Aid on 8 May 2017.  Perfected Grounds of Appeal were filed by his counsel, Mr Keith Fung, on 14 July 2017.

The Perfected Grounds of Appeal

21.In his Perfected Grounds of Appeal, Mr Fung advanced two grounds of appeal.

22.His first ground of appeal complains that the judge erred in his sentencing approach in two ways.  In respect of the first count, he adopted too great an enhancement when allowing for the international element of trafficking across the Hong Kong/Mainland border.  Mr Fung submitted that the judge’s assessment of the amount of the enhancement was flawed because he had regard to the decision of the Court of Appeal in the Chung Ping Kun case, a decision which post-dated the commission of the present offence by several months.

23.Secondly, whilst the judge accepted that the applicant had tried to assist the Customs and Excise officers the judge did not sufficiently adjust the sentence to reflect this factor. His discount of 4 months represented just under a 2% additional discount of the applicant’s sentence. Mr Fung referred the court to the decision of the Court of Appeal in HKSAR v Smit Hector Edward[1]where the applicant had participated in an unsuccessful controlled delivery and had been awarded by the Court of Appeal with a total sentencing discount of 37.85%.

24.Mr Fung’s second ground of appeal is simply that by virtue of Ground 1 the sentence is manifestly excessive.

The respondent’s submissions

25.In respect of the application for an extension of time Ms Rosa Lo, Senior Public Prosecutor, for the respondent, submitted that the applicant had provided no valid reason to explain the almost 6-month delay in lodging the present application.

26.In respect of the Perfected Grounds of Appeal Ms Lo submitted that the starting point of 15 years and 11 months’ imprisonment for Count 1 was consistent with an arithmetic calculation based on the Lau Tak Ming guideline and could not, therefore, be said to be manifestly excessive.

27.Regarding the 10-month enhancement on the basis of international trafficking, Ms Lo submitted that the precise enhancement with regard to the quantity of dangerous drugs here should have been 11 months, referring to the guideline set out in HKSAR v Chung Ping Kun [2014] 6 HKC 106.  She referred to cases decided by this court involving similar quantities of cocaine/heroin hydrochloride where a greater enhancement of one year was not disturbed on appeal.  These cases, which dealt with offences whose commission pre-dated the Chung Ping Kun judgment, are HKSAR v Anyalechi [2016] 2 HKLRD 20 and HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249.

28.As to the applicant’s willingness to render assistance to the authorities, Ms Lo submitted that the overall discount given for his guilty pleas and willingness to assist the authorities should not exceed 40%, citing HKSAR v Z (2007) 10 HKCFAR 183 and HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692.  The overall discount (35.33%) given in the present case was therefore not inadequate.

29.Ms Lo submitted that the total sentence of 10 years and 10 months’ imprisonment was neither manifestly excessive nor wrong in principle.

Discussion: The application for an extension of time  

30.The applicant has not satisfactorily explained the delay in appealing and so we see no justification for granting him the extension of time he seeks.  Nothing has been placed before us which describes what transpired from the date of sentencing to the filing of the Form XI.  The affirmation attributes the delay to not being in a position to formulate grounds of appeal yet the Form XI contains no such grounds.  Nor could the applicant have been referring to the Perfected Grounds of Appeal as they post-date the Form XI by over a year.  

31.At the hearing of the application Mr Fung explained that during the six month delay the applicant was seeking and receiving advice from other prisoners which ultimately convinced him that his sentence was excessive.  Why, apart from wishful thinking, he would have thought that the uninformed views of other prisoners was superior to the legal advice he would have received from his counsel at the time he was sentenced, was not explained.

32.Nevertheless, notwithstanding that the applicant has not satisfactorily explained the delay in applying for leave to appeal, in accordance with the practice of this court we examined the proposed grounds of appeal in order to satisfy ourselves that by refusing the applicant an extension of time we were not shutting out a substantial and plainly arguable ground of appeal.[2]

Discussion: The Perfected Grounds of Appeal

33.There is no error by the judge in the adoption of his starting point or in the amount by which he enhanced that starting point to allow for the presence of the aggravating factor of the international element.  In determining the amount by which he would enhance his starting point the judge had regard to two cases, namely, the Court of Appeal’s judgment in Chung Ping Kun and a Court of First Instance Sentencing decision in HKSAR v Zhuo Sailin[3]. This latter decision involved a defendant who trafficked in Ice across the Lok Ma Chau Control Point on 3 April 2013 and the judge in that case enhanced her 8 years’ starting point by 1 year.

34.It is not clear from what the judge said in respect of the present applicant that he applied the newly laid down Chung Ping Kun guidelines as he simply said that he considered the judgment.  That, in itself, is hardly surprising for, in addition to the new guideline it laid down, the judgment contains much information on the then practice of trial judges with regard to the level of enhancement being ordered for the international element. 

35.In Chung Ping Kun the Court of Appeal made clear that the need for the new guideline was because there was a lack of consistency in the enhancements that different judges were ordering.  This was a consequence of the Court of Appeal in HKSAR v Abdallah[4] saying that the enhancement for the aggravating factor of the international element should be at least 2 years’ imprisonment for quantities of drugs above 1,000 grammes.  For quantities less than this amount the degree of enhancement lay within the discretion of the court.  Unfortunately, significant differences arose in the degree of enhancement ordered by different judges in respect of different quantities of drugs that were under 1,000 grammes.

36.Of course this very lack of consistency is what allows Mr Fung for the applicant and Ms Lo for the respondent to point to cases which support their argument.  But, as this court has said on many occasions, the Court of Appeal looks to what punishment is appropriate for the applicant before it.  Sentencing precedents will usually be helpful only when they are able to demonstrate a particular pattern of sentencing or a particular sentencing range that has been approved by an appellate court or reflects a consistent practice of trial courts.  Here, as the Court of Appeal made clear in Chung Ping Kun, there was no consistent sentencing practice and that is precisely why the Court of Appeal intervened to lay down the guideline that it did. 

37.We are not persuaded that, in having regard to the judgment of Chung Ping Kun,it is reasonably arguable that the judge made an erroneous or impermissible use of what was there said.  Even if we were wrong in that regard we are satisfied that it could not be reasonably argued that a 10‑month enhancement for this quantity of heroin hydrochloride was in any way excessive.  There is no merit in this ground of appeal.

38.The applicant’s assistance to the authorities consisted only of responding affirmatively to an enquiry from Customs officers whether he would be willing to participate in a controlled delivery.  For operational reasons the no controlled delivery was carried out.  In advance of the hearing, no material was placed before us, as it should have been, to explain why this was so. 

39.At the hearing of the application we were informed by Ms Lo that the only Customs officers at Lok Ma Chau Control Point in these late hours of the day were uniformed officers and uniformed officers are not responsible for controlled delivery operations.  Such operations are the responsibility of detectives who had to come from the Customs and Excise’s North Point offices. 

40.From what we were told by Ms Lo it became clear that at the time of the applicant’s interception the uniformed officers went through the usual formal procedures when dealing with an arrested person.  They asked the applicant questions under caution and tested the seizures to confirm they were dangerous drugs.  All this took place between approximately 9:32 pm and about 10 pm.  The enquiry of the applicant whether he was willing to participate in a controlled delivery was a standard question and, it seems, a normal part of this initial processing of an arrested person.

41.The uniformed officers seized seven phones from the applicant and knew from what he had told them that he was expecting to receive a call from those for whom he was couriering the drugs and they would then give him instructions for their delivery.  The applicant was placed in a room with a guarding officer whilst those responsible for his arrest attended to other duties.

42.It is unclear what, if any, instructions were given to the guarding officer in the event that one of the applicant’s phones rang.  It was also unclear how the applicant could be expected to answer any such call and set up a controlled delivery when no detectives were present.

43.As it turned out the applicant did receive three phone calls.  The first was received at 10:55 pm and the second at 11:47 pm.  The applicant, for reasons not explained to us, declined to answer the calls when he saw the display of the caller’s phone number.  On each occasion the phone number was different.  The third call was from the applicant’s girlfriend at 1:30 am on 12 April 2014 and the applicant answered this call.  We have not been informed what the applicant said to his girlfriend and specifically whether he told her of his then situation.

44.At midnight another Customs officer, unconnected with the arrest team, received a phone call from a person claiming to be a representative of a legal firm and enquiring after the applicant. We do not know what this caller was told.  Mr Fung informed us that the applicant had not engaged any legal representative.  This call has all the hallmarks of a bogus call by the applicant’s accomplices seeking confirmation that the applicant was in custody.

45.At 1:15 am on 12 April the Customs officers decided to call off the proposed controlled delivery.  At 1:35 am the same day the detectives from North Point arrived.

46.As a result of this information Mr Fung informed us that he is no longer able to articulate any argument to support this ground of appeal.  That is not surprising.  It is now clear that the enquiry of the applicant shortly after his arrest as to whether he was willing to participate in a controlled delivery was nothing more than a general enquiry as part of the normal procedures associated with the processing of an arrested person.  It was made early in the processing of the applicant before the detectives, who would be responsible for the investigation of his offence had even arrived on the scene.  It could not constitute a form of assurance or undertaking to an arrested person that a controlled delivery will necessarily take place. Whether a controlled delivery does take place will depend on a whole range of operational matters that the law enforcement agency will be in the best position to assess using its professional judgment to reach a view on the likelihood of the controlled delivery being productive in terms of its outcome. But, clearly there would be no point in a law enforcement agency even contemplating this option unless they knew in advance that they would have the cooperation of the arrested person.

47.In these circumstances it is not usual for a defendant to be given any additional discount for his asserted willingness to cooperate is untested and the fruitfulness of such cooperation wholly unknown.  No doubt the judge did so as an exercise of discretion in order to reflect this applicant’s willingness to assist and to encourage others to adopt a similarly cooperative attitude to law enforcement. Although the judge’s discount was small it was, in the circumstances of this applicant, more than he was, in fact, entitled to receive.

Conclusion

48.For these reasons we refused the applicant an extension of time in which to file his Notice of Application for Leave to Appeal his sentence.

Ms Rosa Lo SPP, of the Department of Justice, for the respondent

Mr Keith Fung, instructed by Director of Legal Aid, for the applicant

[1] [2017] 1 HKLRD 287

[2] See R v Wong Kai Kong & Anor [1990] 1 HKC 279

[3] HCCC 431/2013, unreported, 24 February 2014.  This sentence was successfully appealed, see HKSAR v Zhuo Sailin CACC 72/2014, unreported, 9 December 2014.

[4] [2009] 2 HKLRD 437