HKSAR v. Chan Wang Mei

CACC 307/2019

[2020] HKCA 703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2019

(ON APPEAL FROM HCCC 106 OF 2019)

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Before: Hon McWalters JA in Court

Date of Hearing: 12 August 2020

Date of Judgment: 12 August 2020

Date of Reasons for Judgment: 21 August 2020

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REASONS FOR JUDGMENT

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1.The applicant pleaded guilty to two charges of trafficking in a dangerous drug[1] (Charges 1 and 3) and one charge of manufacturing a dangerous drug[2] (Charge 2) at the Eastern Magistracy and was committed to the High Court for sentence before D’Almada Remedios J (“the judge”). On 9 October 2019 she was sentenced to a total of 14 years’ imprisonment.

2.The applicant subsequently applied for leave to appeal against her sentences.  At the hearing of the application I refused it and said I would hand down my reasons for doing so at a later date.  This I now do. 

The Summary of Facts

3.On 7 December 2017, the police mounted an anti-narcotics operation in Mong Kok.  At about 18:37 hours they placed under surveillance a male taxi driver known as Lee Kai Hing (“Lee”).  Lee parked his taxi in the vicinity of a residential complex called “Skypark” near Sai Yee Street, Mong Kok and when he alighted from his taxi he was seen carrying a black recycle bag.  Lee then entered Skypark and travelled in the lift up to the seventh floor and entered into Flat B6 (“the flat”). 

4.There, the police were waiting in ambush.  At about 19:05 hours as Lee was coming out from the flat with the black bag in his right hand, he was intercepted by officers.  When the police gained entry to the flat they found the applicant, with surgical gloves on her hands, and another male standing in the sitting room.  No charge was laid against this other male.    

5.Inside the black recycle bag that Lee was holding, the police found 13 plastic bags containing 296 grammes of cocaine in solid form and another black plastic bag containing 5 plastic bags which contained a total of 57.3 grammes of cocaine in solid form.  Each of the plastic bags bore markings and weights of the cocaine.  A total of 353.3 grammes of cocaine was seized from Lee’s black recycle bag.  Under caution, Lee admitted that he took the black recycle bag upstairs and gave it to the applicant who then put cocaine into it for him to take away.  He said the other drugs in the flat did not belong to him.  Lee and the applicant were jointly charged with unlawfully trafficking in the cocaine found in this black recycle bag and this was Charge 1 on the indictment.

6.Extensive paraphernalia[3] for the manufacture of crack cocaine[4] were also found in the open kitchen, the living room and the toilet.  This included a considerable amount of sodium bicarbonate, which, in a water solution, is used for manufacturing cocaine base from cocaine hydrochloride.  However, no cocaine hydrochloride was found.  Under caution the applicant said that she was the one responsible for making the “coke” in the flat and it had nothing to do with Lee and the other man.  She also said that Lee helped to distribute the “coke” outside. 

7.A Scientific Evidence Officer expressed the expert opinion that the various items seized in the flat were items commonly associated with the process of making cocaine base and this process could have taken place in the flat.  He said that the cocaine base found in the flat could be the final product of the process of manufacturing cocaine base and the sodium bicarbonate could be the starting material for this manufacturing process.  He also explained that whilst no measurable amount of cocaine hydrochloride was found, it could have been used up during the manufacturing process. 

8.A forensic examination confirmed that there were traces of cocaine present on the surgical gloves worn by the applicant, and her DNA were located on some of the containers in the flat which had been used to contain cocaine.  

9.The flat was leased to the applicant for a 2-year term with effect from 19 July 2017, at a monthly rent of HK$16,000.  At the time of her arrest, the applicant was in possession of three mobile phones, all of which had been used to contact Lee prior to their arrest.   

10.Also part of the Summary of Facts was a summary of the contents of Lee’s video record of interview. Relevant to the applicant were assertions by him that he had been delivering cocaine for the applicant for several months and that for each packet of drugs he delivered he would be paid $500 by the applicant.

11.On the basis of all this evidence the applicant was charged with manufacturing a dangerous drug (Charge 2).      

12.The applicant also faced another charge of drug trafficking in Charge 3 in respect of 58.56 grammes of solid cocaine, 0.05 gramme of a solid containing benzoylecgonine and 0.15 grammes of a solid containing cocaine and benzoylecgonine that were all found in the flat at the time of the police raid.  

13.The total estimated market value of all the cocaine seized in Charges 1 and 3 (i.e. a total of 411.86 grammes of cocaine) was HK$514,009.65.  

The mitigation

14.The applicant was represented by Ms Diane Crebbin who advocated very strenuously and in great detail on the applicant’s behalf.  She informed the judge that the applicant was 36 years of age at the time of sentencing and had a clear record. She had a difficult life from the age of 15 but had overcome, in a positive way, all the challenges that life had thrown at her.  She did not live a self-centred life and had become involved in supporting the activities of various charitable organisations. 

15.From time to time she changed her employment, always seeking to improve herself.  At times she worked at more than one job.  In 2002 she went to night school to better her education.  Later, she obtained a qualification as a healthcare assistant and worked for a while as a nursing assistant. 

16.In 2007 she went to Japan to study Japanese and it was then she met her husband.  Unfortunately, the marriage failed and, it seems, no children were produced from it.  After they divorced the applicantreturned to Hong Kong in 2014 and set about rebuilding her life. 

17.She studied for, and obtained, an insurance practitioner licence.  Unfortunately, just as her prospects would have appeared to her to be at last improving, she was retrenched and had difficulty obtaining further employment.  She had lead a crime-free life until the present offence but her unemployment coincided with her becoming desperately in need of money in order to pay for private medical services, including operations, to treat her father’s illness.  She fell into bad company and met people connected to the drug trade.  She became a user of, but not dependent upon, cocaine.  Her associations with those in the drug trade led her to earning money through the manufacturing and trafficking in cocaine. 

18.Her counsel tendered letters written by the applicant, her parents and a former work colleague.  These testified to her character and the great remorse she felt for what she had done.  Further evidence of her remorse could be found in her efforts to assist the authorities but, unfortunately, the only information she was able to provide was outdated and was of no practical value.  Her counsel submitted that even if her efforts did not warrant a specific discount they could, as evidence of remorse, justify the judge adopting a lower starting point.

19.Ms Crebbin emphasised that the applicant was a person of clear record, had worked hard all her life to try and improve herself and had earned the respect of the community.  She did not have a history of long term involvement with drugs and was not a habitual offender.  She did not seek to minimise what she had done or to avoid personal responsibility for it.  She was a person, Ms Crebbin said, “who has made one very foolish, serious mistake in her life.”[5]    

20.In respect of both Charges 1 and 3, the trafficking charges, her counsel urged the judge to order the sentences for them to be served wholly concurrently with each other on the ground that their subject matter arose out of the same incident, that is, the applicant’s act of manufacturing of crack cocaine in the flat.  

21.However, Ms Crebbin also accepted that the facts of the trafficking “indicate that she [i.e. the applicant] was the one who arranged for the 1^st defendant [i.e. Lee] to collect and deliver the goods and drugs.”[6]    

22.Ms Crebbin also conceded that it would be fair to describe the applicant’s situation as “a significant manufacturing station with quite a large scale operation”.  These were the words used by Wilson Chan J in his Reasons for Sentence in HKSAR v Cheung Chi Chun and Another[7]  In this case, and in HKSAR v Kong Yuen Ping[8] on which Ms Crebbin also relied, a final sentence of 14 years’ imprisonment had been imposed for offences of the trafficking in, and the manufacturing of cocaine in rather large scale operations.  Ms Crebbin submitted that these cases reflected the appropriate level of the overall sentence for all the charges that the applicant was facing.   

The judge’s Reasons for Sentence

23.After setting out the Summary of Facts, personal background and mitigation of the applicant, the judge remarked that other than the guilty plea there was nothing in her personal background that would be a mitigating factor. 

24.The judge then turned to the task of assessing an appropriate starting point for the manufacturing offence.  She directed herself in accordance with R v Cheung Wai Kwong and Another[9] and HKSAR v Kan Kong Fai[10], noting that drug manufacturing warrants a higher sentence than drug trafficking and though the quantity of drugs seized from the premises might give an idea of the scale of the operation it was not the sole or dominant consideration in determining the starting point.  The judge said that in determining the proper sentence, she had to take into account the quantity of drugs produced, the scale of the operation, the capacity of the equipment, the output of drugs at the manufacturing station and the role played by the applicant. 

25.She formed the view that the scale of production in the present case could not be said to be small and the output of drugs was fairly large.  Although the starting material, cocaine hydrochloride, was not found, there was still a fairly large quantity of sodium bicarbonate left and the applicant had manufactured a substantial quantity of drugs.  It was the judge’s finding that “the flat was a significant manufacturing station with quite a large scale of operation”.[11]

26.In respect of the role played by the applicant, the judge found that she had occupied a major role in the manufacturing process by conducting it from beginning to end.  The applicant was the tenant and occupier of the premises and she admitted that she was responsible for making the “coke” there.  Furthermore, it was not disputed that the applicant arranged and paid for Lee to collect and deliver the drugs and, in fact, had just passed the cocaine in Charge 1 to Lee for dissemination.

27.Notwithstanding that the judge found the applicant more culpable than Lee, she adopted the same starting point for both of them of 14 years and 3 months when sentencing them for Charge 1.  She then discounted this figure to 9 years and 6 months’ imprisonment to allow for the guilty plea.

28.For Charge 2, the judge adopted 19 years’ imprisonment as her starting point which she discounted to 12 years and 8 months’ imprisonment.

29.For Charge 3, the judge adopted a starting point of 8 years which, with allowance for the applicant’s guilty plea, was discounted to 5 years and 4 months’ imprisonment. 

30.The judge then had regard to the principle of totality and considered that a total of 21 years’ imprisonment after trial would have been an appropriate total sentence to reflect the applicant’s overall criminality. Discounted by one third this figure would become 14 years’ imprisonment.  In order to achieve this final sentence the judge ordered 1 year and 4 months of Charge 1 to run consecutively to Charge 2, but otherwise the sentences were to be served concurrently with each other.    

The applicant’s ground of appeal against her sentences

31.The applicant was represented by Ms Kamina Lai in this application and advanced only one ground of appeal, namely that the judge erred in law by ordering 1 year and 4 months’ imprisonment in Charge 1 to be served consecutively to the sentence in Charge 2. 

32.Ms Lai argued that the manufacturing charge was only concerned with one day, namely 7 December 2017, and that the judge was correct in referring to the amount of cocaine in Charges 1 and 3 in order to ascertain the scale of the operation of the applicant’s manufacturing activity in Charge 2.  Under the Court of Appeal’s guideline in R v Lau Tak Ming & Another[12], this combined quantity of 411.86 grammes of cocaine narcotic would have attracted a starting point of 15 years and 4 months’ imprisonment. 

33.Ms Lai noted that the cocaine that was the subject of Charges 1 and 3 must have originated from the manufacturing activity that is the subject of Charge 2.  That being so, she submitted, concurrent sentences for all charges were appropriate. Alternatively, she argued, even if the applicant’s actions in arranging the delivery of the drugs through Lee added to her criminality, it was not clear whether the judge had already taken this into account as an aggravating factor when determining her starting point for Charge 2. 

34.Ms Lai submitted that although it was not entirely clear from the judge’s Reasons for Sentence how she arrived at the 19 years starting point for Charge 2, that starting point already reflected a substantial increase on the appropriate sentence for trafficking in the amount of cocaine that is the subject of Charges 1 and 3.  Furthermore, as there was only a limited amount of sodium bicarbonate left in the flat and Charge 2 only concerned one day, it was questionable if the 3 years and 8 months’ enhancement was justifiable in the circumstances.  To order that a further 1 year and 4 months’ imprisonment of the sentence for Charge 1 be served consecutively to the manufacturing sentence of Charge 2 was wrong in principle and resulted in a manifestly excessive total sentence. 

35.She relied on the judgment of the Court of Appeal in HKSAR v Wong To[13] for support of her submission that all the sentences should have been ordered to be served concurrently with each other. 

36.At the hearing of the application Ms Lai made it clear that she was not disputing the finding of the judge in respect of the scale of the manufacturing operation and she was not arguing that the final sentence was manifestly excessive.  Her only complaint was that in making the partial consecutiveness order in respect of Charge 1 there was a possibility that the judge may have punished the applicant twice for using Lee as the distributor of her manufactured product.  This possibility arose, so her argument went, because the judge did not make clear in her remarks on Charge 2 whether she had taken this aspect of the applicant’s criminality into account when assessing as appropriate for that charge a starting point of 19 years’ imprisonment.    

The respondent’s submission

37.Ms Jasmine Ching, for the respondent, opposed the present application and argued that the quantity of cocaine narcotic in Charges 1 and 3 was only one of the factors for the judge to use in arriving at the appropriate starting point for Charge 2, and in the present case the total amount of cocaine found could not truly reflect the criminality of the applicant under the manufacturing charge. 

38.Ms Ching submitted that, given the scale of the applicant’s manufacturing operation, and the role played by the applicant in the manufacturing process, the appropriate starting point would, in accordance with HKSAR v Cheung Wai Kwong and Another[14]and other authorities be upwards of 20 years.  Thus, the starting point of 19 years that was adopted by the judge for Charge 2 was even slightly below the usual range and could not be criticised. 

39.In addition the applicanthad become the supplier of cocaine to Lee whom she had engaged to distribute the product of her manufacturing.  This entitled the judge to make the order of partial consecutiveness.  On the issue of totality, Ms Ching relied on HKSAR v Kwok Shiu To[15] and argued that where a series of offences are involved, the question of totality is paramount, rather than the means by which it is achieved, and it would depend on the overall criminality of the particular offender in the circumstances of that case. 

Discussion     

40.There are only two issues before me and they are whether the judge was entitled, as a matter of law, to make an order of partial consecutiveness in respect of the sentence for Charge 1 and if so whether, as a consequence of so doing, there was any risk that she punished the applicant twice for her trafficking activity with Lee.

41.As the cases make clear, the true relevance of the quantity of drugs found at the scene of a manufacturing operation is the assistance they provide the sentencer in assessing the scale of the manufacturing operation.  For example, in the present case had the police not intercepted Lee they would have found only 58.56 grammes of cocaine and the judge would have had to make a finding in respect of the scale of the manufacturing operation without the benefit of knowing the volume of cocaine the premises was capable of making

42.Ms Lai placed too much significance on the total amount of cocaine seized and wrongly used the sentences for Charges 1 and 3 as a yardstick by which to demonstrate that the starting point of 19 years that the judge adopted for Charge 2 was already a harsh one.  In so doing she overlooked the other factors which the Court of Appeal has said are relevant to the determination of an appropriate starting point in manufacturing cases.     

43.On the facts of the present case, it is clear that the judge was entitled to reach the conclusion she did in respect of the scale of the applicant’s manufacturing operation.  Clearly, it was an active operation and would have continued but for the police raid.  It may be that Charge 2 is only concerned with one day, the day of the raid, but it would be absurdly unrealistic to assume that the applicant’s drug manufacturing operations had been set up for the purpose of one day only, particularly given her claim that she resorted to manufacturing crack cocaine because she was in need of money for her father’s illness. 

44.Charge 2 is undoubtedly distinct from Charge 1 notwithstanding that they both took place on the same occasion and that the drugs in Charge 1 were the product of the applicant’s manufacturing activity that is the subject of Charge 2.  On the facts of the present case, the applicant’s role is a dual one; she was both manufacturer and trafficker.  As a trafficker she was engaged in the distribution of the crack cocaine that she manufactured.  She arranged, and paid for, Lee, acting as a courier, to deliver the product of her manufacturing activities.  It follows that Charge 1 must add to the criminality of Charge 2 and it was not wrong, in terms of legal principle, for the judge to order part of the sentence for Charge 1 to be served consecutively to the sentence for Charge 2 in order to reflect this different and additional area of the applicant’s culpability.  

45.That being so the only question is whether by her order of consecutiveness of 1 year and 4 months the judge punished the applicant twice for her trafficking activity with Lee.  Ms Lai frankly admitted that she cannot point to anything the judge said that would indicate that double punishment actually occurred.  She only raised it as a possibility.  It then became necessary to look to other matters to see whether this was in fact a realistic possibility.

46.Firstly, the judge said that she would have assessed a total starting point of 21 years as appropriate for the applicant’s overall culpability.  Given that she had already said that 19 years was appropriate for the manufacturing it must follow that the judge regarded the additional 2 years as punishment for the trafficking.

47.Secondly, there is nothing in her sentencing remarks in respect of Charge 2 which suggests that she factored into her assessment of the applicant’s culpability on that charge, the fact that she had employed Lee to distribute her manufactured product.

48.Thirdly, the final sentence is not manifestly excessive.  If it was then one would look to see where the judge might have erred; so the fact that it is not manifestly excessive, would point to the likelihood that the reason no error is apparent is because there was no error.  As Ms Ching pointed out, the case authorities reveal a pattern of sentencing for large scale manufacturing of 20 years and upwards.

49.Finally, it is only fair to the judge to point out that the overall sentence on which the judge settled was one that she was invited to adopt by Ms Crebbin and this invitation was backed up by reference to the relevant authorities and to first instance cases which provided support for Ms Crebbin’s submission.

50.The basis on which this application for leave to appeal was made is wholly artificial and unrealistic.  There was no error by the judge that was apparent on the face of the record and counsel was left to make floundering submissions as to an entirely speculative possibility that there may have been an error whilst in the same breath conceding that the sentence was not manifestly excessive.  This application has no merit whatsoever and does not come anywhere near to reaching the threshold of reasonable arguability.

Disposition

51.For these reasons I refused the applicant leave to appeal her sentences.  I reminded her of her right to renew her application before the Court of Appeal and also reminded her that should she do so, and should the Court of Appeal find no merit in her renewed application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221. 

Ms Jasmine Ching, ADPP (Ag) of the Department of Justice, for the respondent

Ms Kamina Lai, instructed by Cheung & Yeung, assigned by the Director of Legal Aid, for the applicant

[1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

[2] Contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. 

[3] These included electronic scales, test tubes, metal sieves, an electromagnetic oven, glass containers, glass bottles, glass beakers and a metal pot.

[4] “Crack” cocaine is the street name given to the free base form of cocaine and is a smokeable form of cocaine.

[5] Appeal Bundle, page 25Q.

[6] Appeal Bundle, page 30F-G.

[7] HCCC 227/2017, unreported, 9 October 2017.

[8] HCCC 153/2017, unreported, 8 June 2017.

[9] [1997] HKLRD 344

[10] [2009] 3 HKLRD 582

[11] Appeal Bundle, page 18B-C.

[12] [1990] 2 HKLR 370

[13] [2001] 4 HKC 499

[14] [1997] HKLRD 344

[15] [2006] 2 HKLRD 272