HKSAR v. So Yat Ting

CACC 175/2019

[2021] HKCA 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 175 OF 2019

(ON APPEAL FROM HCCC NO 301 OF 2018)

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REASONS FOR JUDGMENT

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

Introduction

1.By leave of the Single Judge[1] granted on 10 March 2020, the appellant appeals against his sentence of 18 years and 5 months’ imprisonment imposed by Li J ( the Judge) on 30 May 2019, following his plea of guilty to a single charge of attempting to traffic in a dangerous drug, namely 970 grammes of a powder containing 809 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200.

2.The appellant was granted leave to appeal against his sentence on the following two grounds:

Ground 1: The discount for the appellant’s guilty plea should have been greater than 20%.

Ground 2: The enhancement for the appellant’s previous conviction was not warranted in light of the circumstances of the case and, if it was, it did not take into account the totality of the enhancements together with the notional sentence to be imposed on the appellant. 

3.At the hearing of the appeal, we allowed the appeal, reducing the appellant’s sentence from 18 years and 5 months’ imprisonment to 18 years’ imprisonment.  We said we would give the reasons for our decision in due course.  These are our reasons. 

The brief facts

4.The facts outlined to the judge, and admitted on behalf of the appellant were as follows.  On 3 November 2017, a parcel was intercepted for examination at the Express Cargo Terminal of the Hong Kong International Airport.  It was described as containing “CERAMICS” which had been posted from Peru to a recipient in Hong Kong, namely “SO YAT TING” at “LOHAS PARK, TSEUNG KWAN O, L WING PHASE 2B LE PRIME, RM 28 TOWER 7 (contact no: +852 5345 0362)”. 

5.The examination of the parcel revealed that inside a false bottom of a styrofoam box, containing ceramic figures, there was concealed a quantity of a dangerous drug.  A government chemist confirmed the drugs to be 970 grammes of a powder containing 890 grammes of cocaine narcotic.  The retail value of the drugs was $891,430.[2]

6.Later that afternoon, a Customs officer made a telephone call to the appellant on “5345 0362”.  He spoke to the appellant who confirmed he was “Mr So” and provided the tracking number of the parcel.  He asked the appellant to provide proof of address for receiving the parcel because the airway bill was incomplete.[3]  The appellant gave the address, Tower 7 of Le Prime, Lohas Park, Tseung Kwan O, which was the same address on the parcel, and he requested the parcel to be delivered that afternoon.[4]

7.There followed a series of telephone calls between the Customs officer and the appellant, during which arrangements were made to deliver the parcel between 17:00 and 18:00 hours, at Le Prestige, Lohas Park.  At 18:12 hours, the Customs officer arrived at the roundabout near the entrance of Le Prestige and made a call to the appellant.  They agreed to meet at the roundabout so that the appellant could collect the parcel.  When the appellant showed up at the roundabout he confirmed he was Mr So, the recipient of the parcel.  He produced his Hong Kong identity card, together with a piece of paper which listed the tracking number of the parcel.  He then signed a receipt for the parcel.[5]  

8.After the parcel was delivered to the appellant, he was arrested and cautioned.  He was asked about the parcel and replied that he did not know what it contained and that he was simply helping someone to collect it.  He later revealed that he was a middleman, collecting the parcel for “Xiong Zai”, whom he was to telephone once he received it.

9.The appellant was asked to take part in a controlled delivery, but he declined to do so.  An investigation of the address listed on the parcel revealed that the true occupier had no knowledge of the parcel or its contents.

10.In pleading guilty to the offence, the appellant admitted and accepted that he had attempted to traffic the dangerous drugs concealed in the parcel.

The case history

11.In order to properly understand the appellant’s first ground, it is necessary to set out a brief history of this case. 

12.On 24 September 2018, the appellant appeared in the magistrate’s court and was committed to the High Court for trial, having indicated he would plead not guilty to the charge. 

13.On 30 November 2018, the parties filed their case management questionnaires and on 22 February 2019 there was a case management hearing in the High Court, at which the appellant confirmed he would plead not guilty.  The matter was then set down for an eight day trial, commencing on 30 May 2019.  The appellant submitted that at this hearing on 22 February 2020, the prosecution did not indicate that they would adduce any further evidence, other than that contained in the committal bundle. 

14.On 24 April 2019, the prosecution produced a Notice of Additional Evidence to the court for the purpose of adducing into evidence at trial certain WhatsApp and WeChat messages from the appellant’s telephone. It was accepted that the messages did not directly implicate the appellant, at most they were circumstantial in nature, from which a jury may draw certain inferences. 

15.On 21 May 2019, Ms Karen Lau, who represented the appellant in the court below and on this appeal, wrote to the court and the prosecution, stating that after due consideration of the new evidence, the appellant would be pleading guilty to the charge.  The trial dates were therefore vacated and the matter was set down for plea and sentence, which was fixed to be heard on 30 May 2019.  Only eight days notice had been given for the appellant’s guilty plea.

The appellant’s background and mitigation

16.The appellant was 32 years of age at the time of the offence.  He was educated up to Form 2 level and worked as a casual transportation worker, earning about $5,000 a month.  He had previously worked as a waiter at a mahjong parlour but his employment was terminated when he was convicted of driving a motor vehicle whilst disqualified.  He was single and lived with his father.  He had a son from a previous relationship.  He provided financial support to his former girlfriend, who looked after their son, and his father in the sum of $3,000 a month to each of them.

17.The appellant had nine previous convictions, three of which concerned drug offences.  Two were for possession of a dangerous drug, while the remaining one was for trafficking in a dangerous drug, for which he was sentenced to 4 years and 8 months’ imprisonment on 25 August 2010.

18.In mitigation, Ms Lau submitted that as a result of financial difficulties the appellant agreed to collect a parcel on behalf of a person known as Xiong Zai for a reward of $2,000.  He did not ask any details as to what was contained in the parcel, although he suspected it was something illegal, possibly dangerous drugs.  It was noted that at the time of his arrest he frankly admitted that he was asked by Xiong Zai to collect the parcel.

19.Notwithstanding that the appellant had not entered his guilty plea at the earliest opportunity in the magistrate’s court, Ms Lau urged the Judge to give him the full one third discount, or at the very least a one fourth discount to his sentence. She argued that the late disclosure by the prosecution of the messages extracted from the appellant’s mobile telephone meant that this important evidence was unavailable to his legal representatives in order for them to provide informed advice to him about his case.  She explained that although there was no direct admission in the messages, it was nevertheless circumstantial evidence that could be viewed as supporting the appellant’s knowledge of the drugs. 

20.Whilst accepting the case involved importing a quantity of a dangerous drug into Hong Kong, Ms Lau urged the Judge not to enhance the appellant’s sentence for the international element and his past criminal record.

21.In response, prosecuting counsel reminded the Judge of the sentencing guideline cases in respect of the enhancement for an international element and the appropriate discounts for a guilty plea.  He referred to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, arguing that the appellant was not entitled to the full one third discount because his plea of guilty was late, having indicated that he would contest the charge laid against him.  He noted that the appellant was aware his telephone had been seized by the Customs officers and that it would take some time to have it examined.  He also noted that the appellant would have known what was on his telephone as well as having the benefit of legal advice.  He submitted that, at the most, the appellant was entitled to a discount of 25% for his late plea.

The reasons for sentence

22.In sentencing the appellant, the Judge adopted a starting point of 21 years’ imprisonment for 809 grammes of cocaine narcotic, which was in accordance with the sentencing guidelines laid out in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.  He enhanced the sentence by 1 year and 6 months for the international element and a further 6 months for the appellant’s previous conviction for drug trafficking.  The enhancement for the international element was in accordance with the sentencing guidelines laid out in HKSAR v Chung Ping Kun [2014] 6 HKC 106.  This resulted in a notional starting point of 23 years’ imprisonment.

23.The Judge mentioned in his reasons for sentence that he had considered the submission on behalf of the appellant that he had only learnt of the record of the messages from his telephone at the end of April 2019, when the prosecution filed the additional evidence, and that he would have entered a guilty plea at an earlier stage if there had been timely disclosure by the prosecution of this additional evidence.  However, the Judge rejected this submission and considered that this fact did not warrant a departure from the sentencing guidelines.  He explained that, in his view, the appellant did not need the record of the messages to confirm whether he knew there was a dangerous drug in the parcel.  He noted that the appellant indicated on 21 May 2019 that he would plead guilty on the first day of trial, and that accordingly he would give him a 20% discount to his sentence. 

24.After reducing the notional sentence of 23 years’ imprisonment by 20% for the appellant’s guilty plea, the Judge sentenced the appellant to 18 years and 5 months’ imprisonment.

The appellant’s submissions on Ground 1

25.The first ground complained that the discount given by the Judge for the appellant’s guilty plea of 20% was too low. 

26.The main thrust of Ms Lau’s argument is that a defendant should be provided with all the key evidence the prosecution intends to use against him in order for him to decide what plea he should enter to the charge.  She submitted that in the present case the messages were key pieces of evidence, which had not been provided to the appellant until the prosecution filed them as additional evidence on 24 April 2019.  She further submitted that the prosecution, at the case management conference on 22 February 2019, failed to mention that they would be filing additional evidence.  This, she argued, was significant because if the appellant had been informed of the additional evidence before the case management conference, or if the additional evidence had been included in the list of unused material, then the appellant could have been given legal advice at that time and potentially indicated his change of plea earlier and before trial dates had been fixed. 

27.Although Ms Lau urged the Judge in her mitigation to give the appellant a full one third discount, or alternatively at least a one fourth discount, she submitted before us that a more appropriate discount would have been between 25% and 20% in accordance with the principles laid down in Ngo Van Nam, in which it was stated:

“An indication of a plea of guilty after the fixing of trial dates but before the first day of trial: 25% to 20% discount

214. Next, we are satisfied that, subject to the overriding discretion of the judge in sentencing, the range of discount to be afforded to a defendant who indicates to the Court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25% discount to be afforded to the defendant who indicates that he wishes to plead guilty up to and until dates are fixed for his trial by the Listing Judge and the 20% discount to be afforded to the defendant for a plea of guilty on the first day of trial. In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances.”[6]

28.Relying on this statement of principle, Ms Lau argued that the appellant indicated a plea of guilty after trial dates had been fixed, but before the first day of trial, and therefore the appropriate discount from the starting point was between 25% and 20%.  She acknowledged that a sentencing court would take into account the time at which an indication is given of a plea of guilty as well as all other relevant circumstances.

29.Ms Lau noted that a defendant who faced a trial in the Court of First Instance was normally entitled to a full one third discount if he entered a plea of guilty at the stage of the committal proceedings.  She further noted that by that stage of the proceedings, a defendant would have received a committal bundle and be in a position to consult a lawyer.  She contended, however, that the process was such that there was pressure on the prosecution to serve as quickly as possible a committal bundle on a defendant; pressure on a lawyer assigned to a defendant in committal proceedings to advise him as to his plea; and pressure on a defendant whether to plead guilty to the charge or charges he faced.  She argued that whether a defendant pleads guilty will be influenced by the strength of the prosecution case and it was therefore desirable that when a defendant was deciding what plea to enter in relation to his case he should be in possession of “the key pieces of prosecution evidence”.

The respondent’s submissions on Ground 1

30.In response, Ms Cecilia Chan, for the respondent, noted that the statement of principle in Ngo Van Nam in relation to cases that are heard in the Court of First Instance was subject to the overriding discretion of the judge in sentencing, having regard to the time at which the indication was given that a defendant intended to plead guilty and to all the other relevant circumstances. She submitted that there was nothing to suggest that the Judge’s discretion in this case had miscarried, and it was within his discretion to have awarded a 20% discount, as opposed to something nearer to 25%. 

31.She referred to the observations of Hughes LJ in R v Caley,[7] which were quoted and endorsed by the Court of Appeal in Ngo Van Nam,[8]that:

“… whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial) he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different.”

32.These observations were further reiterated by the Court in Ngo Van Nam later in its judgment:

“211. We are satisfied that in cases committed for trial or sentence the stage at which a discount of a full one-third is to be afforded to the defendant is at the stage of committal described earlier. … Obviously, that is an event of importance to a defendant. So, those representing a defendant who is to be committed to the Court of First Instance must advise a defendant of his options, so that he is in a position to make an informed choice. As noted earlier, that does not require that a defendant is given an assessment of ‘the prospects of conviction or acquittal’. At issue only, is whether or not in his instructions the defendant acknowledges that he performed the acts, with the accompanying mental element, proof of which is required to establish the offence.” [Emphasis added.]

33.Ms Chan noted that the appellant’s telephone from which the messages were extracted was listed as an exhibit in the master exhibit list, which was in the committal bundle.  She submitted that the appellant’s complaint that the prosecution failed to produce the evidence of the messages on time was disingenuous, given that he was fully aware of their contents and was waiting to see if Customs and Excise could extract them from his telephone and decode them.  In our view, there was considerable force in this submission.

34.Ms Chan pointed out that the Judge mentioned in his reasons for sentence that he had considered the appellant’s argument that he only learnt about the record of the messages near the end of April 2019 when the prosecution filed the additional evidence.  She noted that the Judge did not think this was a valid ground to depart from the guideline, because in his view the appellant did not need the record of his telephone to confirm whether he knew there was a dangerous drug in the parcel.  In those circumstances the Judge considered that a 20% discount was appropriate.

Discussion on Ground 1

35.The fundamental issue in this ground of appeal is whether the Judge wrongly exercised his judicial discretion by only affording the appellant a 20% discount to his sentence for his plea of guilty that was indicated eight days prior to the first day of trial. 

36.There are two limbs to Ms Lau’s argument on this ground.  First, there was a failure by the prosecution to disclose, in a timely manner, key evidence in the case against the appellant, which purportedly prevented him from receiving informed advice from his lawyer at an earlier stage of the proceedings.  Secondly, such advice was given at a late stage and resulted in a late plea. 

37.We reject this submission, both as a matter of principle and as a matter of fact. 

38.As a matter of principle, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence against him in order to assess the prospects of conviction or acquittal, he does not require it in order to know whether he is guilty or not of the charge or charges he faces.  If a defendant wants to receive the benefit of a percentage discount for pleading guilty to an offence he has committed, the sooner this is done, the greater the percentage discount he will receive as set out in Ngo Van Nam. 

39.As a matter of fact, the appellant knew that his telephone had been seized from him and that it contained the messages that were eventually disclosed.  The telephone was listed as an exhibit.  It necessarily required the authorities to examine and decode the electronic content of his telephone, which would have taken some time.  The messages were sent and received on or about the day of the offence, and whilst the content of the messages are not immediately obvious, it appears that in the afternoon of 3 November 2017, the appellant was told to “Be more careful” and “Good luck”,[9] and on another chat site he said that if he was not online after more than three hours “something may have happened to me”.[10] There was also a message about someone getting “busted”.[11]

40.Whilst it was ultimately a matter of inference what those messages were actually referring to in all the circumstances, the appellant, on the other hand, had actual knowledge about them and what they meant.

41.The complaint that the appellant had not been provided with the key evidence of the messages has to be considered in the full context of the case.  That is amply displayed by the facts that were ultimately agreed by the appellant when he pleaded guilty.  The parcel was addressed to the appellant.  He collected the parcel and admitted his involvement in trafficking the dangerous drug concealed in the parcel.  The appellant knew full well whether he was guilty of this offence or not, and the filing of the messages as additional evidence would have had very little bearing, if any, on the strength of the evidence against him.

42.As Ngo Van Nam makes clear, the decision as to an appropriate discount for a plea of guilty is subject to the overriding discretion of the Judge and “all the other relevant circumstances”, in determining where between the 25% and 20% he considers such discount should lie. 

43.In our view, there is no substance to this ground.

The appellant’s submissions on Ground 2

44.The second ground initially complained that the Judge’s enhancement of 6 months on account of a previous conviction for drug trafficking was too severe.  However, leave was granted primarily in respect of the totality of the enhancements for the international element (1 year and 6 months) and the previous conviction (6 months) together with the notional sentence (21 years).

45.Ms Lau submitted there was a considerable period of time between the appellant’s previous conviction for drug trafficking and the current offence.  The appellant was sentenced in August 2010 for the previous drug trafficking offence, which was some 7 years prior to the current offence.  She relied on the decision of this Court in HKSAR v Har Tsz Yui[12] for the principle that the enhancement must be proportionate to the actual sentence. 

The respondent’s submissions on Ground 2

46.Ms Chan contended that the proper approach, whatever enhancement a sentencing judge decides to adopt on account of a previous conviction, is a matter within his sentencing discretion.  She submitted that drug trafficking is a very serious offence and there is the added need to deter drug traffickers who are repeat offenders.  She pointed out that the appellant had nine previous convictions, three of which were related to drugs.  The most serious was a conviction for drug trafficking, which was dealt with in the Court of First Instance, where the appellant was sentenced to 4 years and 8 months’ imprisonment on 25 August 2010. 

47.Ms Chan submitted the enhancement of 6 months represented only a 2.38% increase to the starting point of 21 years’ imprisonment.  Hence, it could not be sensibly argued that 6 months for a previous conviction of comparable gravity was wrong in principle or manifestly excessive.

Discussion on Ground 2

48.In Har Tsz Yui, this Court held it was open to a judge to enhance a sentence due to the repeated nature of offending by a defendant for serious offences.  Macrae VP, giving the judgment of the Court, noted that the aggravating feature of a defendant being a repeat offender is not susceptible to an arithmetical application of percentage enhancements.  He explained that the approach to be taken when dealing with such an aggravating feature would depend on the nature and seriousness of the offence, the extent of the defendant’s criminal record, and the need for personal and public deterrence.  He went on to further explain:

“18. Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which a judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.”

49.Macrae VP echoed previous curial pronouncements that a sentencing court when determining an enhancement to a sentence against a recidivist should ensure that: (i) the original starting point must be proportionate to the actual sentence;[13] and (ii) the degree of enhancement must be in reasonable proportion to the basic sentence, and the total should not be excessive.[14]

50.The appellant was sentenced for his prior drug trafficking conviction on 25 August 2010, for which he received 4 years and 8 months’ imprisonment.  The question arose whether this was a case deserving of an enhancement, and if it was, did the Judge take into account the aggregate of 6 months, for the repeat offending, and 1 year and 6 months, for the international element, together with the high sentence for the substantive offence.  As noted in HKSAR v Islam Azharul,[15] it would be wrong in principle merely to add up the individual enhancements for a series of aggravating factors without applying the totality principle when that is appropriate.  It is not simply a matter of addition.[16]

51.We were of the view that the Judge should have made an appropriate adjustment for the aggregation of enhancements of the several aggravating factors to a substantial notional starting point.  It is important for a sentencing court to stand back and make an overall assessment of the sentence to be imposed to ensure it is not unduly or inappropriately crushing or oppressive.  It was for this reason, we considered that the sentence was wrong and needed readjustment by a reduction of 5 months.

Conclusion

52.In light of the foregoing, we allowed the appellant’s appeal against sentence by reducing his sentence of 18 years and 5 months’ imprisonment to 18 years’ imprisonment.

Ms Cecilia Chan, SPP of the Department of Justice, for the respondent

Ms Karen Lau, instructed by Louis K Y Pau & Co, assigned by the Director of Legal Aid, for the appellant