HKSAR v. Chan Wing Chung
Read the full judgment text of HCCC 470/2016 on BabelCite. This High Court CFI judgment was delivered on 3 August 2018.
Cites 27 cases
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HCCC 470/2016 [2018] HKCFI 2365 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 470 AND 471 OF 2016 -----------------
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------------------------------------------- Transcript of the Audio Recording of the Sentence in the above Case ------------------------------------------- COURT: On 30 March 2016, Chan Wing-chun was arrested for a number of drugs offences in Sham Shui Po. He was brought before a magistrate charged with a series of offences including possession of dangerous drugs and manufacturing dangerous drugs. Over time, the charges were refined, and there are now two proceedings before this court as follows. HCCC 470/2016, which is an indictment alleging two counts of manufacturing dangerous drugs and, two, HCCC 471/2016, which involves two counts of possession of dangerous drugs at different locations in Sham Shui Po and one charge of trafficking in dangerous drugs at a further location in Sham Shui Po. The further location is the same location as is averred in the manufacturing counts in 470/2016. In relation to 471/2016, the accused pleaded guilty at committal and was committed for sentence in relation to those charges. Both cases came before the High Court on 22 June 2018 and Mr Jeremy Cheung, counsel for the accused in both cases, indicated that his client now wished to plead guilty to one of the counts of manufacturing in 470/2016 and the other count to be left on the file. That arrangement was acceptable to the prosecution on arraignment. In respect of the indictment, the accused pleaded guilty to the 1st charge. Facts were agreed for the charges in 471 at the time of committal before the magistrate. A Summary of Facts was admitted by Mr Chan in respect of 470/2016. Factual background On 30 March 2016, police officers intercepted a female in Sham Shui Po. She was searched and two sets of keys were found on her. One of the sets of keys related to flat 1D, 55-57 Fuk Wing Street and the other set opened Room 1004, 10th floor, 203-207 Lai Chi Kok Road. Shortly after the interception of the female, police executed a search warrant at the premises at Fuk Wing Street. Mr Chan was found inside these premises. Also found in the premises was 0.69 gramme of a crystalline solid containing 0.68 gramme of methamphetamine hydrochloride, commonly known as ‘Ice’, a plastic bag containing 0.34 grammes of a solid containing 0.41 grammes of cocaine and also a plastic straw segment containing traces of a powder containing methamphetamine. Mr Chan was arrested at the premises and said under caution that the dangerous drugs were for his own consumption. He was searched and found in his possession were keys to three flats in Sham Shui Po. The first was the flat in which he was found and arrested. He also had keys to the premises at Lai Chi Kok where the female was found to have keys when she was searched. He also had keys to Room C, 3rd floor, 176-178 Nam Cheong Street, also in Sham Shui Po. While police were dealing with Mr Chan, the female who had been arrested earlier was taken by other police officers to the premises at Lai Chi Kok Road. In the course of the search at those premises which was conducted in her presence, amongst other things were found 174 foil laminated plastic bags containing 138.55 grammes of a powder containing 58.35 grammes of methylenedioxymethamphetamine, more commonly known as MDMA, and 1.32 grammes of nimetazepam. In the meantime, Mr Chan was taken to the premises at Nam Cheong Street to which he had keys. At those premises, entry was obtained using the keys found on Mr Chan and police discovered four plastic bags containing a total of 1.64 grammes of a solid containing 1.1 grammes of cocaine. Also found in the premises was a bottle which was adapted for the intake of dangerous drugs. Mr Chan was further arrested and cautioned. His answer to that arrest and caution was that the drugs were for his own consumption. He asserted that the bottle to which reference has been made was used for him to smoke the dangerous drug. Mr Chan was then taken to the premises at Lai Chi Kok Road. In relation to the dangerous drugs found at Lai Chi Kok Road, in answer to the police following a caution, he said that the drugs found there were all his and nothing to do with the girl. Mr Chan was interviewed under caution in a video recorded interview. He asserted that the drugs found in Fuk Wing Street were ‘Ice’ and cocaine and they were for his personal consumption. He told the police during the course of the interview that these drugs were brought over by him from the premises at Lai Chi Kok Road. He told police that the premises at Fuk Wing Street were rented by his girlfriend. Both he and the girlfriend have keys to the premises. He also said in relation to the drugs found in the premises at Nam Cheong Street that they were for his personal consumption and brought over from the premises at Lai Chi Kok Road. He told police in the interview that the premises at Nam Cheong Street were rented by him and he was the only person in possession of keys to those premises. The police also asked Mr Chan about the 174 foil laminated plastic bags containing MDMA found in the Lai Chi Kok premises. He asserted that he did not know that the powder was a dangerous drug as he has never consumed it or checked it. He said he bought it from another person for $50 each and then he kept them for sale on his own behalf and that he had already sold 10 bags of the substance. In relation to the premises at Lai Chi Kok Road, he said that his girlfriend had rented the premises, but she gave him access and he paid the rent. He said that both of them had keys to the premises, but the girlfriend knew nothing about the drugs at the address. The female arrested was the girlfriend of Mr Chan. Initial charges against her arising out of this arrest were later dropped. Mr Chan has also pleaded guilty to the first count on the indictment in HCCC 470/2016 which alleges the manufacturer of dangerous drugs. Under section 2 of the Dangerous Drugs Ordinance, manufacture means any act connected with making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug. At the Lai Chi Kok Road premises, the police carried out a search following entry to the premises gained from taking a key from the female who they had arrested a short while ago. Inside the bedroom of the premises, they found:
The police also seized the air-conditioning filter fitted in the air-conditioner for the premises. The filter was found to contain traces of cocaine. Ms Chan Suk-yu of the Forensic Science Division Government Laboratory attended the Lai Chi Kok premises. She examined what the police had found there. She provided an opinion about the nature of the premises at Lai Chi Kok Road in the context of what had been found there. She noted a plastic bag containing a quantity of cocaine in solid form. She also found a substantial quantity of crack cocaine. She indicated that she found a quantity of sodium bicarbonate which is used in the process of transforming cocaine into crack cocaine. She also found in the premises a quantity of Phenacetin which is a known adulterant and commonly contained in the cocaine mixture. Also found in the premises were three electronic balances, a pair of scissors, a metal pot, which revealed traces of cocaine and she was of the view that these, therefore, could have been associated with the manufacture of crack cocaine. She also found traces of cocaine in the air-conditioner filter from the premises which supported that conclusion. She came to the view that the manufacture of crack cocaine had taken place in the premises. Background of the accused Mr Chan is a 54-year-old man born in Hong Kong. From 1981 to 2012, he acquired a very bad criminal record. Perhaps, significantly, his drug convictions started in 1995, starting with a couple of charges of possession of dangerous drugs. By December 1995, he has his first conviction for trafficking in dangerous drugs. There are two further convictions for trafficking in dangerous drugs in 1999 and 2003. His record of conviction ceases in 2012. He is an ‘Ice’ addict since he was 17. He is now addicted to cocaine as well. He lived in the premises in Fuk Wing Street prior to his arrest. He lived there with his girlfriend. Prior to arrest, he worked as a delivery worker. Relevant sentencing principles - General Section 6 of the Dangerous Drugs Ordinance provides that the penalty on a charge on indictment of manufacturing dangerous drugs without a licence is a fine of $5 million and life imprisonment. Section 4 of that ordinance provides the same penalty on a charge of trafficking in dangerous drugs. Finally, section 8 of the ordinance provides that on a conviction on indictment for possession of dangerous drugs, the penalty is a fine of $1 million and subject to section 54A to imprisonment for 7 years. The maximum sentences for manufacturing, trafficking in and possessing dangerous drugs also indicate the serious view taken by the community in relation to those activities. This needs to be qualified in relation to the possession of dangerous drugs. Section 54A of the Dangerous Drugs Ordinance contemplates the possibility of treatment or rehabilitative outcomes as an alternative to custodial consequences. Subject to that, the community view is plain and obvious. The reason for this serious view is not only the harm that can be done to those who ingest dangerous drugs, but also the consequences for the community in dealing with those who ingest these drugs. Cocaine and ‘Ice’ are savagely addictive drugs and can result in serious antisocial behaviour. Recent experience demonstrates that this is particularly so in relation to ‘Ice’ in which violent and sometimes fatal acts result from the ingestion of this substance. MDMA is a substance which has dangerous consequences for a user including potentially fatal consequences. There is also a cost to the community. That cost includes the fact the community may have to bear the cost of treatment in result of the ingestion of drugs and for programs to rehabilitate members of the community for addiction to those drugs. Those who traffic in dangerous drugs are deliberately exposing other people to all the risks and the costs for the community of the ingestion of those dangerous drugs. It goes without saying that the manufacture of dangerous drugs is rightly regarded as more serious than the conduct of those who traffic in those drugs. As a result of all of that, the courts of Hong Kong reflect the community view in respect of the sentences ordinarily imposed for these offences. Possession of dangerous drugs There are no tariffs for possession of dangerous drugs. The circumstances in which this occur are many and varied. The two drugs in question in this case are cocaine and ‘Ice’. The tariffs for trafficking in the quantities the subject of Counts 1 and 2 in case HCCC 471/2016 on the indictment provides some assistance in determining the appropriate sentence. The relevant tariff levels for both drugs is to be seen in R v Lau Tak Ming [1990] 2 HKLR 370, HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Had this been an ‘Ice’ or cocaine trafficking case, the bands of oft-cited tariff in Lau Tak Ming would have been highly pertinent. They are in relation to quantities up to 10 grammes of narcotic, a sentence of 2 to 5 years' imprisonment. The relevance of the trafficking guidelines to sentence for possession of dangerous drugs was recognised by the Court of Appeal in the Secretary of Justice v Ng Wing Yi CAAR 4/2013. The basis of that relevance is that such guidelines do not in themselves dictate a mathematical calculation downwards for possession simpliciter, but they:
There are a multitude of decisions as to the appropriate sentence for possession of dangerous drugs and I intend to refer only to a selection of them. Probably the best starting point in this regard is HKSAR v Mok Cho Tik [2001] 1 HKC 261. In that case, the Court of Appeal was asked to consider a case of possession of 1.57 grammes of ‘Ice’. In that case, Stock JA observed ([2001] 1 HKC 261, 267):
Stock JA added:
The court adopted a starting point of 18 months' imprisonment which was to be enhanced by 12 months for the risk factor inherent in the possession of such a quantity of dangerous drugs. The range has to be understood against the examples cited by Stock JA which were substantially greater in terms of weight of narcotic than the case he was considering and for the most part in the case at hand. In HKSAR v Singh CACC 96/2006, the Court of Appeal was faced with sentencing an addict in possession of 6.82 grammes of ‘Ice’. The court considered that a starting point of 15 months was appropriate. Further, in HKSAR v Chan Tai Wah [2012] 4 HKLRD 674, the drug involved was 5.47 grammes of ‘Ice’. A seizure followed a search in a room in which the appellant resided. For this, the Court of Appeal considered a sentence of 15 months was appropriate. Although, the drug involved was ketamine, it is relevant to consider the sentence imposed in Secretary of Justice v Ng Wing Yi (above). The Court of Appeal recognised that the quantities of ketamine involved in that case, about 200 grammes, a substantially higher sentence than the usual 12 to 18 months recognised in the authorities was called for. For this amount, the Court of Appeal recognised that a starting point of 2½ years was warranted before enhancement for latent risk. In many respects, this case is a clear demonstration of the Court of Appeal of an intention to apply the second passage that I quoted from the judgment of Stock JA in HKSAR v Mok Cho Tik. The authorities recognise that in appropriate cases, it is open to the court to enhance a sentence of possession of dangerous drugs for what is often characterised as the latent risk factor. What is meant by this is the recognition that even though the conviction in question is not for trafficking in dangerous drugs, there is a latent risk that the dangerous drugs in question in the possession of the accused might find their way into the hands of others. In this case, I do not propose to consider enhancement for two reasons. These are:
For the avoidance of doubt as will shortly appear, I propose to make certain of the sentences partly concurrent and partly consecutive, but on no account is this mode in which this is being done a disguised form of latent risk. Guidelines for sentencing for trafficking in MDMA In relation to trafficking in MDMA, the courts of Hong Kong have set guidelines for sentencing. This may be seen in the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323. That case sets guidelines by reference to the narcotic content of the MDMA in question. The relevant sentencing band for quantities between 50 grammes and 300 grammes, for that a range of sentence of 6 to 9 years' imprisonment is considered appropriate. Guidelines for sentencing in Nimetazepam Nimetazepam is a hypnotic drug which benzodiazepine derivative. It has been equated with ketamine and ecstasy or MDMA for the purpose of sentencing. See: HKSAR v Wong Kin Kau [2010] 4 HKC 443. Guidelines for sentencing in relation to Manufacturing dangerous drugs The authorities which inform the approach to sentencing for cases of manufacturing dangerous drugs starts with the proposition that the offence of manufacturing dangerous drugs is a very serious if not the most serious of all the drug related offences. This is exemplified by the array of manufacturing dangerous drugs cases which suggests a starting point approaching 20 years for many forms of manufacturing. The second thing that is abundantly clear from the authorities is that the quantity of drug to be manufactured or the capacity of the premises to manufacture quantities of dangerous drugs is relevant, but not determinative, see R v Cheung Wai Kwong & Anor [1997] HKLRD 344, 348F. In that case, Chan J, as he then was, observed:
This may also be seen in decisions such as HKSAR v Ip Yuet Ho [2008] 6 HKC 35, HKSAR v Wong Ping Kay [2002] 3 HKLRD 161, and HKSAR v Kan Kong Fai [2009] 3 HKLRD 582. In the case of HKSAR v Kan Kong Fai, the Court of Appeal restated the sentencing approach relevant to the manufacture of dangerous drugs. The Court of Appeal held ([2009] 3 HKLRD 582 para 12) that in drug manufacturing cases, the quantity of drugs may give an idea of the scale of manufacturing but is not the sole or dominant consideration in determining the starting point. The court reiterated the position which was taken by Roberts CJ in R v Wong Chun Ping [1984] HKLR 247 where it was held that only in exceptional cases, for instance, if it is clear that the capacity of the equipment is very small that the court should consider a sentence of less than 10 years' imprisonment on a conviction for manufacturing dangerous drugs. For large-scale manufacturing in sentences in the area of 18 to 20 years' imprisonment are appropriate. In HKSAR v Ip Yuet Ho (above), the scale of manufacturing and the drugs found in the premises where the manufacturing operation existed appeared to be slightly larger than applies in the present case. In that case, the Court of Appeal considered a starting point of 13 years was not manifestly excessive. There is a danger of minute and possibly meaningless comparison between various cases and various set-ups of manufacturing arrangements. Nevertheless, HKSAR v Ip Yuet Ho provides essentially assistance to the proper sentencing approach where a small to medium-sized enterprise is an appropriate way to characterise the manufacturing operation. Sentencing discount - HCCC 470/2016 The accused argues that he should receive the discount applicable at the time of the offence. Counsel for the accused argues that the accused should receive a discount from the starting point in respect of his sentence in respect of 470/2016 which is the manufacturing dangerous drugs charge. He argues that given the conduct which is the subject of that charge occurred before the decision of the Court of Appeal in HKSAR v Ngo Van Nam [2006] 5 HKLRD 1, [2016] 5 HKC 231, [2016] HKEC 190. The point made by counsel is that he submits that the principles which inform the application of the discount at the time of the offence was that an accused should receive a one-third discount unless there were good reasons to the contrary and he submits there are none. By contrast, if HKSAR v Ngo Van Nam (above) applied to this count, subject to the discretion of the sentencing court, a justified discount of 20 per cent given that the plea of guilty to this count was notified two days prior to the first day appointed for trial. The offence occurred before HKSAR v Ngo Van Nam (above), but the accused was committed for trial after that decision had been announced. The decision in HKSAR v Ngo Van Nam (above) expressly caters for the situation which arises in the present case. The decision provides that in such an event the framework for analysis is that of HKSAR v Ngo Van Nam. Counsel for the accused contends that notwithstanding the principles outlined in HKSAR v Ngo Van Nam (above) to deal with the position of a person who committed his offence before the decision in that case (see: [2016] 5 HKLRD 1, para 236), the accused should get the full one-third discount. The essence of his contentions are:
Underlying these contentions is the proposition that when a sentence is considered, what is required is to look at the whole of the sentence including the relevant discount on a plea of guilty. In essence, the contention on behalf of the accused is that the discount is part of the penalty faced by a person committing a crime. Essential contentions on behalf of the prosecution The prosecution argues:
Principles emerging from Ngo Van Nam It is necessary to consider what if any real changes were wrought by the decision in HKSAR v Ngo Van Nam. In that decision, the Court of Appeal reaffirmed the longstanding discretion to accord to an accused who pleaded guilty some discount off an otherwise appropriate sentence for his plea of guilty. The Court of Appeal affirmed a component of that discretion that the level of discount might vary depending on the timing of the indication to the court or to the prosecution of an intention to plead guilty. So far as criminal proceedings before the High Court, what is significant about HKSAR v Ngo Van Nam is that the Court of Appeal indicated by reference to three milestones in criminal cases what the discount might be. In relation to criminal cases before the High Court, the Court of Appeal considered the following discounts might, subject to the discretionary reposed in a sentencing court, be appropriate:
A plea of guilty during the course of the trial is a matter within the discretion of the sentencing court. In each case, the Court of Appeal made it plain that the actual discount to be accorded to an accused person who pleaded guilty was a matter for the discretion of the sentencing court. In the present case in relation to HCCC 471/2016, Mr Chan notified his plea at the earliest practical moment, that is on the committal hearing, and accordingly, the appropriate discount in relation to each of these charges is one-third of the sentence that would have otherwise been appropriate had the accused been convicted after trial. In terms of timing of the plea of guilty, the position is different in relation to HCCC 470 of 2016. In relation to the indictment in HCCC 470 of 2016, Mr Chan was committed for trial on 25 November 2016 and an indictment was filed and in the ordinary way the matter was listed for trial. It is significant that HCCC 471 of 2016 was also committed for sentence on the same day. In the committal process, Mr Chan was represented throughout. The indication of anything other than a plea of not guilty to both counts of manufacturing a dangerous drug in HCCC 470/2016 came just before trial (As a matter of strict history, on 22 June 2018 which was the first day of trial, the Court was informed by counsel for the Accused that there had been what counsel characterised as a “plea-bargain” and the Accused intended to plead guilty to Count 1 on the indictment in HCCC 470 of 2016 and Count 2 was to lie on the file, not be proceeded with without the leave of the Court. A request was made for an adjournment in order that a summary of facts could be prepared. The case was adjourned to 26 June 2018. The formal arraignment occurred on that day. For all practical purposes plea of guilty to Count 1 on the indictment on 26 June 2018 has been regarded as a plea of guilty on the first day of trial.). However, the decision in HKSAR v Ngo Van Nam also dealt with the position of a person who committed his crime prior to that decision. In the judgment of Lunn VP, it was held ([2016] 5 HKLRD 1, para 236):
As at the date of the publication of the decision in Ngo in relation to all charges, Mr Chan was before a magistrate in relation to this case. In relation to the approach of the courts to discounts of plea of guilty, the first point which is made in HKSAR v Ngo Van Nam is that the courts in Hong Kong have for a very long time recognised that a discount from an otherwise appropriate sentence should be given to an accused who pleads guilty. As Lunn VP noted in HKSAR v Ngo Van Nam, the early authorities on this point speak of a discount of the order of 25 per cent for an early plea and 20 per cent for a plea at a later stage in the proceedings ([2016] 5 HKLRD 1, para 59-77). However, as Lunn VP notes there came a time when discounts of the order of one-third were routinely applied ([2016] 5 HKLRD 1, para 78-91). However, what is plain from the judgment of Lunn VP is that generally speaking it has always been a critical factor in determining the extent of the discount was the timing of the plea of guilty (see: [2016] 5 HKLRD 1, para 123-124, 129, 130, 131. It is used to compare the authorities analysed at para 118 and 120-121). Among many authorities referred to by Lunn VP in support of this proposition are Attorney General v Chan Chi Yuen CAAR 8/1983 and The Queen v Wong Ping Yiu [1987] HKLR 785 where the Court of Appeal in both cases made the point that the discount should reflect the timing of the plea. Both judgments were couched in the language of the sentencer having a discretion in respect of the matter. However, as Mr Cheung for the accused has persuaded me, over time the decisions of the Court of Appeal considered by that court in HKSAR v Ngo Van Nam reveal, the position developed whereby even on a plea of guilty on the first day of trial and accused might expect to receive a discount from an otherwise appropriate sentence of one-third unless there were good reasons to accord to the accused a lesser discount (see: [2016] 5 HKLRD 1, para 104-126. There are other decisions consistent with this line of approach. Counsel for the accused pointed to HKSAR v Man Kam Shing [1997] 3 HKC 469. The essence of the decision of the Court of Appeal in that case was that, speaking generally, the accused person who pleads guilty on the first day of trial should receive a discount of one third of an otherwise appropriate sentence unless there were good reasons to accord a lesser discount. This decision was cited by another division of the Court of Appeal with approval in relation to the issue of discount in HKSAR v Lau Sai kit [1998] 2 HKC 93. There are other decisions which cite HKSAR v Man Kam Shing but those concern the observations of the Court of Appeal in relation to the appropriate starting point for taxi robberies.). Indeed, this was recognised in a passage in HKSAR v Ngo Van Nam where Lunn VP considered the position of accused persons who committed crimes before the announcement of the judgment in this case ([2016] 5 HKLRD 1, para 236). The decision in HKSAR v Ngo Van Nam made it plain that critical to the determination of the extent of any discount to be accorded to a person who enters a plea of guilty is the utilitarian consequence of that plea and the timing of the plea. Lunn VP observed ([2016] 5 HKLRD 1, para 198):
In other words, the true basis for the reduction is not remorse of the accused or the strength of the evidence against the accused. It is the advancement of the public interest. The essence of the decision of the Court of Appeal in HKSAR v Ngo Van Nam is to reaffirm that the policy of the courts has for many years been to encourage a plea of guilty and that the principal reason for such encouragement permitted the earlier disposal of other cases awaiting hearing and determination by the courts. In order to encourage a plea of guilty, the courts have reposed a discretion in the sentencing court to discount an otherwise appropriate sentence. The courts have always recognised that an early plea, such as a plea of guilty at committal, has a greater utility by reference to the policy of the courts in this regard than a plea at a later stage of the proceedings such as on arraignment on the first day appointed for trial. Accordingly, the courts should in rewarding an accused person in this regard, accord to that accused a greater discount at the first opportunity to plead guilty as compared to, for example, a plea of guilty on the date of arraignment. The framework for analysis propounded in the Court of Appeal in HKSAR v Ngo Van Nam is in express terms made subject to the discretion reposed in the sentencing court. In other words, what the Court of Appeal did not do was enact a set of rigid prescriptions for the appropriate discount. In my judgment, properly understood, the propounding of different percentages of discount for a plea of guilty at different stages in the criminal process is there to provide a consistent framework of analysis to ensure that, as far as possible, consistency of approach to what is essentially a discretionary process. Perhaps most importantly, although it is true that the application of a discount has a direct effect on the amount of imprisonment to be served by an individual, a discount from an otherwise appropriate sentence is applied to an individual accused is a reward for or recognition of conduct by that accused, that is the entry of a plea of guilty to the charge which is an event which occurs a substantial time after the conduct of the subject of the charge in respect of which the discount may fall to be applied. Retrospectivity - Case Law Counsel for the accused then argued that in articulating arrangements for cases where (as here) the crime was committed prior to the decision in HKSAR v Ngo Van Nam but committed to the High Court after the announcement of that decision, see paragraph 236 of that judgment, the Court of Appeal had overlooked a series of decisions as to what a court should do where an accused falls to be sentenced after a sentencing practice has changed, but who committed his crime before that change. Counsel submitted that the decision in HKSAR v Ngo Van Nam was decided without considering these principles. He argues that had these cases been considered then the court would have held that a discount which would operate would be the one which was the relevant sentencing practice at the time of the offence. Counsel points to a series of decisions starting with R v Chan Ka Wai CACC 530/1988, where the Court of Appeal considered the position of a person convicted of possession for trafficking of dangerous drugs. The conduct in question predated the revision of the guidelines for trafficking in dangerous drugs then to be found in Chan Chi Ming v R [1979] HKLR 49. In Chan Chi Ming v R, the Court of Appeal set guidelines for trafficking in dangerous drugs in heroin where the sentence was based on the amount of mixture and not on the narcotic in the mixture. In 1989 and 1990, these guidelines were revised, firstly, in R v Ching Yeung [1989] 2 HKLR 258 and then in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. That changed the sentencing regime for trafficking in dangerous drugs in relation to heroin to a sentence based on the narcotic content of the substance possessed by the accused. In R v Chan Ka Wai, Cons VP held that it was “settled law” that where the conduct in question occurred before the imposition of the guidelines the earlier sentencing regime would apply. A similar conclusion was reached in relation to sentencing for trafficking in dangerous drugs in R v Chu Chi Yat & Ors [1993] 2 HKCLR 1,4. Further, in HKSAR v Tsui Ching Wai HCMA 209/2000, the accused was convicted of trade descriptions offences. At the time of the conduct of the charge in that case, the sentencing guidelines in Secretary for Justice v Yip Chi Tung [1998] 3 HKC 214 applied. On appeal, Gall J held that the magistrate was in error to apply the guidelines in Secretary for Justice v Lam Chi Wah [1999] 4 HKC 343, which were somewhat harsher than the guidelines in the earlier case and which were announced after the conduct in question, but before the sentence was imposed and which was the subject of appeal. In HKSAR v Tam Kwok Choi [2008] 6 HKC 277, the Court of First Instance held that a sentence for a road traffic offence was excessive because the sentencing was done on the basis of an amendment to the Road Traffic Ordinance which post dated the conduct the subject of the charge. In this case, Verina Bokhary J held that Article 12 of the Bill of Rights required that the lower penalty which applied prior to the amendment should have been the basis for sentence. In Secretary for Justice v Wong Chi Fung [2018] 21 HKCFAR 35, [2018] HKCFA 4, the Court of Final Appeal considered an appeal from a review of sentence by the Secretary for Justice in the Court of Appeal. Ma CJ of the court observed:
(See: (2018) 21 HKCFAR 35, [2018] HKCFA 4, para 77. In this regard Ma CJ cited with approval HKSAR v Tsoi Shu & Ors [2005] 1 HKC 51, 60 Cheung JA observed: It is a settled principle of sentencing that an offender is to be sentenced upon the existing or prevailing guideline or tariff sentence which existed at the time of the commission of the offence, unless the guideline or tariff has become lower by the day of sentence (see Art 12(1) of the Hong Kong Bill of Rights (Cap 383) and R v Chan Ka Wai CACC 530/1988.) Ma CJ added ((2018) 21 HKCFAR 35, [2018] HKCFA 4, para 78):
In that case, in dealing with the setting of what were characterised as stricter guidelines for public order offences, it was held that a sentence fixed by reference to those guidelines could only operate in the future. That is, of course, entirely consistent with the line of authority noted above and as will shortly appear, the discussion in relation to Article 12 of the Bill of Rights. Counsel for the prosecution argues that these cases deal with the position where there has either been a change in the statutory maximum or a change in sentencing guidelines which came into effect after the conduct the subject of the charge. Counsel for the prosecution argues that none of these cases deal with the position of a change in the discretion reposed in a sentencing court to reduce or discount an otherwise appropriate sentence on account of a plea of guilty. I agree with that submission. Bill of Rights Article 12 Counsel for the accused argues that the changes which he argues were wrought by HKSAR v Ngo Van Nam should not be applied to persons who committed their crimes before that decision was announced, but who are sentenced after that decision was announced. He argues to do so would violate the retrospectivity provisions in Article 12 of the Bill of Rights. Article 12 of the Bill of Rights provides:
Article 15(1) of the International Covenant on Civil and Political Rights reflects the language of Article 12. The ICCPR is incorporated by reference into the Basic Law. Article 7(1) of the European Convention on Human Rights is also pertinent and provides:
Although Article 7(1) of the ECHR is in slightly different language, the substance is the same. The argument for the accused is that the effect of the decision of HKSAR v Ngo Van Nam in declaring the guidelines for the discount of sentence on a plea of guilty were pertinent to a person who may have committed an offence prior to the decision in that case, but who was before a magistrate under Part 3 of the Magistrates Ordinance and who had not been committed to the High Court violates the second sentence of Article 12 of the Bill of Rights or Article 15 of the ICCPR as incorporated into the Basic Law:
The critical issue is the meaning of the word 'penalty' in Article 12. The Privy Council considered Article 12 in R v Chan Chi Hung [1995] 2 HKCLR 50. In that case, the appellant committed certain fraud offences which predated amendments to the Crimes Ordinance, Cap 200. These amendments substantially recast offences relating to the fraudulent use of, amongst other instruments, credit cards, and did so in a manner which altered the statutory maximum penalty for certain forms of offence and provided a lower statutory maximum for other forms of offence. The appellant in that case committed credit card fraud before the enactment but asserted that given his conduct also fell within the second and lower statutory maximum in the new legislation, he argued that, as a result, the third sentence of Article 12 of the Bill of Rights applied to him and he should have been sentenced to a lower sentence than he received because of the lower statutory maximum. The third sentence of Article 12 is:
Mustill LJ in giving the advice of the Privy Council observed in relation to Article 12:
While it is true that the Privy Council in R v Chan Chi Hung (above) did not consider the discounts for a plea of guilty, Lord Mustill held that the focus of Article 12 is on the penalty for the conduct of the accused. This is to be seen from the observations:
The implication of that passage in R v Chan Chi Hung (above) for the present case is that the notion of penalty in Article 12 does not extend to a discretion to accord an accused person a reduction from an otherwise appropriate penalty if he pleads guilty. R v Chan Chi Hung (above) is consistent with the approach of the House of Lords to the notion of penalty in The Queen (On the Application of Uttley) v the Secretary of State for the Home Department [2004] UKHL 38, [2004] 1 WLR 2278. There, the House of Lords, considering the meaning of Article 7 of the European Convention considered that the meaning of Article 7 of the European Convention on Human Rights. Uttley was convicted of three offences of rape and several other sexual offences. These offences were all committed before 1983. Uttley was sentenced to a total of 12 years' imprisonment. His date of conviction was three years after the provisions of the Criminal Justice Act 1991 imposing conditions of licence on long-term prisoners released after serving two-thirds of their sentence came into force. Uttley sought judicial review by way of declarations that the imposition of licence conditions on his release under the provisions of the Criminal Justice Act 1991 constituted a heavier penalty than a sentence allowing his release without such conditions to which he would have been subject if he had been convicted before the 1991 Act took effect. He argued that in not applying the release on licence provisions which applied at the time he committed the offence as opposed to when he was convicted was a breach of his rights under Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled in the Human Rights Act 1998. The House of Lords held that Article 7 was concerned with penalty applicable to the offence at the time of the offences by Uttley even though the release on licence provisions applicable to him had changed. It was held that there had been no relevant change in penalty. The only change was in how to treat a prisoner who had been sentenced in accordance with that penalty in relation to possible release on licence or conditions on release on licence. The House of Lords held that the notion of penalty is autonomous and no matter how the imposition is described, if it is in substance a penalty, then that is what it is. However, the notion is one with clear limits. Lord Rodger of Earlsferry observed ([2004] 1 WLR 2278, 2287. See also to the same effect: Flynn v HM Advocate [2004] UKPC D1, 2004 SC (PC) 1, 2004 SLT 863, 2004 SCCR 281):
This decision appears to accord with the earlier approach to this kind of issue seen in the European Court of Human Rights in Hogben v United Kingdom Case No. 111653/85 which was cited by counsel for the accused. In that case, the concern was a change in policy in reductions in sentences of life imprisonment through changes to the parole system. The European Court of Human Rights observed:
Perhaps the only assistance that counsel for the accused can derive from Hogben is a citation of Marrero v Warden of Louisberg Penitentiary (1974) 417 US 653 in the US where it was decided that the introduction of new legislation withdrawing parole eligibility constituted the imposition of an additional penal sanction. Counsel for the prosecution argues that the decisions about a change in the sentence to be applied for a specific offence including changes in the tariff applicable to a specific offence which are matters of judge-made law and these decisions have no impact on the operation of the discount which might be accorded to the accused in reduction of penalty. Counsel for the prosecution makes the point that the entire rationale of the discounts is a utilitarian one of reducing congestion in our courts, reducing the wastage of court resources which are provided at public expense in enabling those waiting for their cases to be heard and determined by the criminal courts of Hong Kong at an earlier opportunity or at least the possibility of an earlier opportunity for their case to be heard and determined. The sentencing practice in relation to discounts to a person who has pleaded guilty prior to the decision in HKSAR v Ngo Van Nam:
What this decision does not do is mandate in a prescriptive way the discount that is to be applied in an otherwise appropriate sentence at various milestones in the criminal process. That said, the discretion reposed in a sentencing court in respect of the appropriate discount is clearly and strongly informed by the decision of the Court of Appeal. In broad terms, the rationale for not imposing on a person a higher penalty than operated at the time of commission of the offence is that a person regulates their conduct by reference to the law operating at the time of the commission of the offence. In many respects, this notion is somewhat artificial. The discretion to accord to a person a discount for a plea of guilty and a lower discount for a later plea operates by reference to the time when a person enters a plea to the crime with which that person is charged. The discretion to accord to the accused person the discount operates at the time of the plea and not the time of the commission of the offence. It concerns decisions made by the accused at various points in the criminal process. In my judgment, the concept of penalty in Article 12 of the Bill of Rights and Article 15 of the ICCPR is referable to the penalty prescribed by law. The discretion to reward a plea of guilty and to vary the reward by reference to the point in the criminal process at which the plea is given is a very different thing. It recognises and rewards conduct which occurs after the offence and is based on pragmatic and utilitarian considerations which I have already identified. In my view, the discount for a plea of guilty is not part of the “penalty” for the offence. Even though viewed from the perspective of a person who is sentenced, the application of these principles has a direct impact on the actual sentence served by that person. The seriousness of what an accused person did or failed to do which is considered by the law to be criminal conduct is not diminished by the practical application of a discount to encourage a plea of guilty. In my view, the decision of the Court of Appeal in HKSAR v Ngo Van Nam was not per incuriam the decisions outlined in these reasons and is not inconsistent with the retrospectivity guarantees in Article 12 of the Bill of Rights or Article 15 of the ICCPR. It follows from that, that I need not have considered whether I am bound by the decision in HKSAR v Ngo Van Nam (above). However, the doctrine of precedent operates with respect to sentencing cases. It's not necessary to articulate how the doctrine operates over the entire range of the law of sentencing. Nevertheless, in relation to the statements of principle articulated in HKSAR v Ngo Van Nam, this court is bound to apply the policy that accused persons have for many years been encouraged to plead guilty for the reasons identified in that decision. In situations where the accused person pleads guilty, the means by which this policy is to be achieved is to repose in the sentencing court a discretion to give a discount and so reduce an otherwise appropriate sentence for the crime to which the accused has pleaded guilty. That policy recognises that a greater discount should be given to those who plead guilty at the earliest practical time and in respect of a plea entered at a later stage of the criminal process a lesser discount is applicable. HKSAR v Ngo Van Nam also provides a framework for analysis as to discount from another otherwise appropriate sentence to be accorded to an accused by reference to the various stages in the criminal process at which the accused might plead guilty. The object of articulating these difference percentages is:
That framework for analysis is explicitly and perhaps emphatically makes the point that the differing percentages for a discount identified in HKSAR v Ngo Van Nam is subject to the overriding discretion reposed in the sentencing court that applies in this case. Court adjourns - 10.47 am Court resumes - 10.54 am Accused present. Appearances as before. COURT: It is common ground that the appropriate discount in respect of 471 should be one-third. Application of sentencing principles to the facts of this case Sentence for drug offences 471/2016 In relation to the dangerous drugs, we are dealing with 0.69 grammes of a crystalline solid containing 0.68 grammes of ‘Ice’, 0.43 grammes of a solid containing 0.41 grammes of cocaine and 1.64 grammes of a solid containing 1.1 grammes of cocaine. For sentencing purposes, both of these drugs are in broad terms treated the same way. At these quantity levels, there is no perfect way to sentence and I propose to aggregate the drugs in question and the total in that regard is 2.19 grammes. In my judgment, the appropriate sentence for each count is 12 months' imprisonment after trial and that will be made concurrent. In relation to Charge 3, that is the 138.55 grammes of powder containing 58.35 grammes of MDMA, I think the appropriate sentence after trial would be 6 years and 3 months' imprisonment. In relation to the nimetazepam, which is also the subject of Charge 3, given that the authorities make it equivalent to MDMA for sentencing purposes, it is appropriate to add the quantity seized to the MDMA which keeps it within the sentencing band for MDMA. Given the amount involved in this case, 1.32 grammes, I do not think I should increase the sentence for Count 3 in 471/2016. 470/2016 - The starting point for Manufacturing dangerous drugs Sentencing in relation to the manufacturing count is a little bit more difficult. I have no information as to how long the manufacturing had been going on. The indictment avers, "An unknown date between 1 January 2016 and 30th day of March 2016." Although, the 2nd count on the indictment makes the same averment as to time, that must refer to a different time to that averred in Count 1. I propose to proceed upon the basis that it was a day between the dates averred in the count in the indictment to which the accused has now pleaded guilty in this case, the police having found a total of 16.46 grammes of crack cocaine which is, of course, the product of the manufacturing process. According to the Government Chemist certificate, this was cocaine hydrochloride of 93 per cent purity which is described as high purity, see paragraph 9 of the expert's report which had a weight of 0.99 grammes of a solid containing 0.82 grammes of cocaine. What I conclude is from the process described by the expert is that the cocaine is reduced to crack cocaine by the application of, amongst other substances, sodium bicarbonate. In other words, there was some cocaine waiting to be turned into crack cocaine and 16.46 grammes of crack cocaine which had already been manufactured. It is also relevant to consider there was just under 800 grammes of sodium bicarbonate in the premises which was obviously awaiting use for later stage. If the drugs and chemicals are taken together with the equipment including the drying equipment found in the premises and the empty bags and scales, sealing equipment, the only reasonable inference is that this apartment was set up for a medium sized manufacturing of dangerous drugs. It is not a large-scale operation, and in this context, I would seek to distinguish the present case from the small manufacturing operation referred to by the Court of Appeal in cases such as HKSAR v Kan Kong Fai (above). Considering the raw material, the product of manufacture and the equipment and the packaging paraphernalia, the appropriate starting point for sentence is 10 years' imprisonment. Discount for plea of guilty The accused was still before a magistrate at the time of the decision in HKSAR v Ngo Van Nam and was committed for trial just over two months after the publication of that decision. I was told by counsel for the accused and I accept what he says is true that consideration was given to the issue of challenging the correctness of the conclusion of the Government Chemist as to whether or not the premises in question were set up for manufacturing. I am informed by counsel, and I accept from him, that this consideration and the inquiries were made to a person expert in the relevant branch of chemistry essentially got nowhere. Counsel tells me, and I accept from him, that this took up some time, but quite how much time was taken up by this line of inquiry was not revealed to me. In my judgment, this process described by the expert is sufficiently well known to justify characterising it as an item in respect of which judicial notice could be taken. But I venture the observation that such an inquiry as to the correctness of the opinion of the Government Chemist was likely for all practical purposes to be deemed a failure. As a result, I make no allowance for this process informing my view as to the appropriate discount. I accept that as a matter of principle it is at least conceivable that protracted and valid inquiries may well be a basis upon which the sentencing court might consider it could affect the discount depending on, amongst other things, the timing of the inquiry by reference to the stage at which the proceedings reached. However, in the present case, there is insufficient information to put forward to justify any delay having an effect on the appropriate sentencing discount. Accordingly, the position is that as a result of HKSAR v Ngo Van Nam, the sentencing discount is 20 per cent subject to the overriding discretion reposed in the sentencing court. Against the background of the history of the conduct of these proceedings in relation to the manufacturing charges, in the exercise of my discretion, I consider the discount of 20 per cent is entirely appropriate. Resolution The starting points are in HCCC 471/2016: Charges 1 and 2, 12 months; Charge 3, 6 years and 3 months. Not only is the drug different in Charge 3 as opposed to Charges 1 and 2, but the conduct is different. In Charge 3, the conduct is trafficking in a dangerous drug. For both Charges 1 and 2, the conduct is possession of a dangerous drug. In my view, the sentence for charge 3 should be consecutive to the concurrent Charges 1 and 2. Subject to discount, the total sentence in relation to HCCC 471/2016 amounts to 7 years and 3 months. The accused should be accorded a discount of one-third. Accordingly, the appropriate sentences are: Charges 1 and 2, 8 months' imprisonment concurrent; Charge 3, 4 years and 2 months consecutive to Charges 1 and 2. That makes a total of 4 years and 10 months. The starting point for HCCC 470/2016 is 10 years’ imprisonment. The appropriate discount is 20 per cent and the sentence of the court is 8 years’ imprisonment. The only remaining issue is to whether to make the sentence in count 1 of HCCC 470/2016 wholly or partly consecutive to the result arrived at in relation to HCCC 471/2016. The drugs the subject of the trafficking charge, were found in the same premises as the manufacturing charge in HCCC 470/2016. Nevertheless, it appears to me to be a wholly separate activity and would without more merit a sentence which is wholly consecutive. In case there is any doubt about it, I think that on the face of it, this would be so even if there had been just one indictment or one charge. The total sentence, if I was to order the manufacturing count to be consecutive, would be 12 years and 10 months. Although, it is not perfect justice, I propose to make a small part of the sentence in HCCC 470/2016 concurrent with the sentence that I will impose on HCCC 471/2016. Before finally imposing sentence in dealing with this case from the first intimation of a plea of guilty to one of the manufacturing counts to the resolution of this case, it is appropriate that I record that I have been greatly assisted by counsel for both parties. I am grateful for their assistance. In an attempt to balance justice and mercy, I order that you be sentenced as follows, Charges 1 and 2 in HCCC 471/2016, 8 months' imprisonment on each count concurrent. Charge 3 on HCCC 471/2016, 4 years and 2 months consecutive to Charges 1 and 2. Count 1 in HCCC 470/2016, 8 years of which 1 year and 10 months is to be served concurrently with Charge 3 in HCCC 471/2016. On my calculations, that means that you are to serve a sentence of 11 years' imprisonment. I also order in relation to the indictment in HCCC 470/2016 that Count 2 lie on the court file and such count is not to be proceeded with without the leave of the court. |
Cases cited in this judgment
Further hearings and rulings under HCCC 470/2016