The accused was arrested and said to the police under caution that the drugs in the room belonged to him and it had nothing to do with others.
The accused submitted to a video-recorded interview and told the interviewer that he had bought about 28 grammes of ‘Ice’ for $2,500 from an unknown male in Mong Kok. Further, the accused said he had gone to the room, subject of the case, to seek repayment of an outstanding debt of $1,200 and he just happened to bring the drugs with him. The person from whom he was seeking repayment of the debt was in the room and was one of the persons sitting on the bed. Because one of the persons on the bed was unhappy, the ‘Ice’ was taken out for sharing with others. The $1,200, as I say, was for the repayment of the debt.
The analysis of the drug found in the hotel room revealed that there was 27.20 grammes of a crystalline solid containing 26.99 grammes of methamphetamine hydrochloride.
The street value of the drugs as at April 2016 was something of the order of $8,200.
The case has a number of features as to the procedure adopted. The accused was arrested and placed on police bail on 1 May 2016. He was rearrested and brought to court on 27 March 2019, almost 3 years later.
Criminal proceedings, the subject of this charge, started on 6 May 2019. In the result, on 14 September 2020, the accused was committed to this court for sentence on the charge of trafficking in dangerous drugs in relation to the drugs seized in the hotel in 2016. The facts were admitted. The matter came up before this court for disposition on 28 January 2021.
Issues were raised about the issue of whether the sentence that the accused might otherwise merit should be discounted given the delay in this case. The case was adjourned to last week to receive and consider submissions from the parties as to the issue of delay and its potential impact on sentence.
Background and mitigation
The accused is a 43-year-old man born in Hong Kong. He is single and lives on his own. He was educated up to Form 3 level.
The accused has a poor criminal record and the record covers a wide range of offences. The first drug offence for which he was convicted occurred in 2012, when he was convicted of possession of dangerous drugs and sent to a Drug Addiction Treatment Centre. In 2014, a similar charge attracted a sentence of 6 months’ imprisonment. In 2016, the accused once again faced a drug-related charge, which is smoking or injecting dangerous drugs, for which he received a sentence of 6 months’ imprisonment. In 2017, he was convicted of trafficking in a dangerous drug and sentenced to 18 months’ imprisonment. As I say, there were a large number of offences. For reasons which will become apparent, the sentence for trafficking in dangerous drugs in 2017 is highly significant to this case.
Written submissions have been provided by counsel for the accused and make two fundamental points. The first is that the accused has admitted his guilt at the earliest opportunity and that he made admission shortly after arrest. Secondly, there has been, so it is submitted, an inordinate delay in bringing this case to court.
I have now had the benefit of supplemental submissions by counsel for the accused and a written submission on behalf of the prosecution as to the principles which inform the exercise of the sentencing discretion of the court in the event that there is some form of delay.
I have read a mitigation letter from the accused, the essence of it would suggest that he is finally, after all these years, coming to the grip of the futility of his criminal conduct. There is also a letter from the minister of religion which implicitly supports that.
Sentencing Principles
Starting point - trafficking
The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. The trafficking and possession of ‘Ice’ can also have serious consequences for family members close to the accused.
However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to this drug. Further, the conduct of the persons affected by ‘Ice’ in private and more pertinently in public can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and the community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including ‘Ice’, which is of course the subject of the charge. The maximum penalty under the law is a fine of $5 million or life imprisonment.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’ suggested guidelines are imprisonment for between 7 and 11 years. The range in question is upon a basis of a sentence following a conviction after trial. That is the basis upon which the starting point sentence is calculated.
Role of the accused
It is necessary to identify the seriousness of the offence and the role of the accused in his act of trafficking, that there should be an evaluation of the nature of the conduct of a trafficker was recently articulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974. The decision of the Court of Appeal consider the approach of the sentencing where the role of the accused was of an actual trafficker (as opposed to, for example, a store-keeper or courier). By “actual trafficker”, the court had in mind the person who passes the dangerous drugs to another. Most often that will be for money or for other consideration, but readily encompasses the person who passes drugs to another without charge (or without proof of charge) such as at a party.
There are, no doubt, a multitude of other examples of what, is involved in “actual trafficking”. In short, “dealing” in section 2 encompasses a wide range of activities which are at least as different in culpability as any other form of activity which falls within the definition of trafficking in section 2 of the Dangerous Drugs Ordinance.
Delay
The events, the subject of this charge, occurred in April 2016, proceedings did not commence until March 2019. After that, the case proceeded eventually to the committal for sentence. It is submitted by counsel for the accused that the authorities demonstrate that there is an inordinate delay in prosecution and the sentencing court should take this into account.
The authorities recognise that an inordinate delay in bringing an accused person to justice may have an impact on the sentence. Indeed, it is common ground between the parties that this is so. In Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236, the Court of Appeal was dealing with an application by the Secretary for Justice for review of sentence where the sentencing court had imposed a suspended sentence in quite a serious commercial fraud. The motivation for imposing the suspended sentence included (but was not limited to) the delay. The respondent in that case had also taken substantial steps towards restitution and rehabilitation in the delay period. Plainly, but for that, the suspended sentence was inappropriate and the Court of Appeal in refusing the application for review said so in terms.
In HKSAR v Chan Yuk Kwan CACC 26/2001, the Court of Appeal recognised that delay could be a factor in mitigating sentence. As Keith JA observed in that case at paragraph 21:
“Significant delay may well in a particular case go to reduction of sentence, because of the stress occasioned when a case hangs over the head of a person awaiting trial, stress over and above that caused where there is no prolonged delay.”
In the result, the court ordered the 50 per cent reduction in the sentence imposed. However, delay was not the only significant mitigating factor. There was a crime of substantial and extensive dishonesty and there had been, in the course of the period of delay, substantial restitution. Accordingly, it is not possible to discern what of the discount was accorded to the accused in that case by reason of delay. (No criticism of the court is implied in that remark.) I do not understand Keith JA to be saying that stress or rehabilitation are pre-requisites for the consideration of delays as a mitigating factor. I understand him as saying that they are relevant in the highly relevant factors.
More recently in HKSAR v Chu On Chi CACC 484/2006, the Court of Appeal was faced with another credit card fraud and the crime of dishonesty. There were two features in this case: (1) delay and (2) restitution. It is not that easy to calculate the precise discount but it is of the order of 50 per cent. The same issue arose in Secretary for Justice v Chan On Shun CAAR 3/2017, the focus in relation to the delay in that case was the impact on the respondent (this was an application for review of sentence) who was said to be suffering from depression. There were other mitigating factors and the Court of Appeal reviewed the sentence and increased it but did not increase it as much as might otherwise have been because of the delay.
The central feature of the preceding cases is that the delay must be inordinate and is capable of reducing the sentence. As counsel for the prosecution, Ms Catherine Ko submits, a number of features come out of these cases. Often, as she submits, the discount or an allowance for delay is given where the prosecution is at thought and for that she cited HKSAR v Lau Kin Yu HCMA 391/2002. However, an examination of that case reveals that DHCJ Barnes (as Barnes J then was) observed:
“I do not agree with [counsel for the prosecution] that delay must have occurred together with restitution before a court can take the matter into consideration in deciding whether to suspend or reduce a sentence. In my view, significant and unexplained delay, per se, is a ground to pass a more lenient sentence on a defendant than what would otherwise have been a proper sentence.”
It appears that the learned judge was certainly not setting up prosecutorial fault as a pre-condition for justifying a reduction of sentence. Indeed, the judge was concerned with significant and unexplained delay. That is not to say that prosecutorial fault is irrelevant. It is, most assuredly, relevant.
Finally, the Court of Appeal in the AG v Ling Kar Fai (No 2) [1997] 2 HKC 651 recognised to a substantial degree the impact of delay. It is no understatement to describe the case as an unusual one. The delay was of the order of 10 years. The Court of Appeal recognised that much of the delay could not be laid at the feet of the respondent. The charges were for offences against the Prevention of Bribery Ordinance, Chapter 201 and ordinarily an immediate custodial sentence would have been warranted given the circumstances of the case. However, as Litton VP observed the circumstances required a suspended sentence. Again, implying no criticism of the court, while it is clear that substantial delay was a relevant factor, it was clearly not the only effect that was considered in such a sentencing disposition. That said, it was plainly an important factor. However, given the unusual circumstances of the case, it is not possible to derive any other statement of principle from it.
Plainly, if the accused was responsible for the delay, then it is inappropriate to make an allowance for that. In HKSAR v Chan Chun Chuen CACC 233/2015, Stuart-Moore VP held that the delay must be unreasonable and through no fault of the defendant.
In HKSAR v Chiu Chi Wing CACC 234/2012, the Court of Appeal cite with approval the judgment of Buss JA in Scook v R (2008) 185 A Crim R 164. In Scook, the Court of Appeal of the Supreme Court of Western Australia considered the issue of delay was capable of mitigating an otherwise appropriate penalty in the context of a substantial commercial ground. Buss JA delivered a concurring judgment to that of McLure JA and he summarised the principles as follows: ((2008) 185 A Crim R 164, §58-64)
“First, delay is not, of itself, a mitigating factor.
Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.
Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.
Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.
Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.
Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:
(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in "uncertain suspense”; or
(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.
Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.”
However, Buss JA carefully qualified the considerations he had outlined by noting that the conclusion after the conclusion of the seven considerations:
“The guiding principles I have stated are not intended to be exhaustive or inflexible.”
This qualification is plainly intended to recognise the wide range of circumstances which a sentencing court has to consider in determining how to exercise the discretion reposed in the court to determine what, if any, adjustment to an otherwise appropriate sentence should be made where there has been delay. The qualification expressed by Buss JA I take to be an injunction to do justice. The case is cited in the principal judgment of McLure JA underline the variety of circumstances identified in state and federal jurisdictions in Australia in relation to this issue. The variety of circumstances I have seen in the cases in this jurisdiction are also testimony to the variety of circumstances in which a court might consider a reduction in an otherwise proper sentence on account of delay.
The prosecution argued that before there can be an adjustment on account of delay, there has to be an unreasonable delay and the delay must be considered to have cause unfairness to the accused. The second criterion is not supported by the authorities. I take unreasonable delay as articulated by Stuart-Moore VP in Chan Chun Chuen (above) as being, in broad terms, a distinction between the normal delay which occurs in any criminal proceeding and a delay which is substantially beyond such normal delay.
In Blanco v R [1999] NSWCCA 121, 106 A Crim R 303, a decision of the New South Wales Court of Criminal Appeal, Wood CJ at Common Law said at paragraph 17:
“The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.”
His Honour added:
“The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of the ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly.”
Blanco v R was cited with approval in Ridgeway v R [2016] NSWCCA 184 in the New South Wales Court of Criminal Appeal in 2016.
There is a high public interest in bringing those (such as the accused in this case) who are charged with serious criminal offences to justice without delay. There is a high public interest in ensuring that such person are to be justly punished according to settled principles. There will be cases where an entirely appropriate sentence might be adjusted downward to reflect unexplained and unreasonable delay. What the authorities demonstrate is that whether there should be an adjustment and if there should be such an adjustment or if there is such an adjustment, what type of adjustment that will vary widely. The resolution of the intersection of these two principles of high public interest calls for consideration in the present case.
Application of sentencing principles
Starting point
The arithmetic starting point for this quantity of methamphetamine hydrochloride within the sentencing band which is appropriate for this case is 8 years and 2 months. The issue which arises given the wide range of culpability for actual trafficking is where this sits on that range. As I have said, the Admitted Facts is a description of the accused being in a room with five other persons. In his video-recorded interview, he told the police he was going to share the drugs that he had brought with him just because one of the person in the room - I think it is fair to say the female - was unhappy. I am perfectly aware there was just over $1,200 in cash found on the bed. The accused gave an explanation which has not been contradicted by evidence that he came to collect money owed and that this was the proceeds of that. This was either actual trafficking or, if the drugs had not been handed over, possession for unlawful trafficking and the choice between the characterisation depends on the timing of the transfer. However, in my opinion, that makes no difference as to sentence.
The only information in the Summary of Facts germane to his culpability other than what I have recited is the assertion in paragraph 8 that the accused “unlawfully trafficked in the ‘Ice’” that were seized. Given the range of conduct which could be properly considered trafficking, that adds nothing to my understanding. The fact that there were four bags containing methamphetamine hydrochloride does not take the matter any way. This is certainly nothing from which an inference to the criminal standard could be drawn that the cash was, contrary to the assertion of the accused that part of his proceeds were part of his stock of cash for drugs and that he was in there in the room selling drugs to the other occupants. His description of giving drugs to others in the room because one of the person in the room was “unhappy” carries with it no implication of selling although it is manifestly an act of trafficking or possession of trafficking.
Accordingly, the starting point which best approximates the culpability of this accused in this specific situation is the arithmetic mean based on the quantity of drugs, that is 8 years and 2 months’ imprisonment. If, contrary to my findings, I was sure that the accused had been selling drugs as opposed to what he has admitted to, I would have considered a starting point of something of the order of 9 years or above as appropriate.
Given the sentencing guidelines applicable to the quantity of this amount and given my assessment of the role of the accused and thus his culpability, the starting point of 8 years and 2 months is appropriate.
Discount for guilty plea
The accused pleaded guilty at the earliest possible moment. He is, in my view, entitled to the full discount recognised by the authorities for such a plea and I fix that at 33 per cent.
Delay
The offence was committed just over 5 years ago. There has been delay. Some of that delay which can be laid at the feet of the accused. Some of it cannot.
The accused was arrested on 29 April 2016. Apparently 21 persons were arrest, as junior counsel for the prosecution put it “for the whole case”. That sets rather curiously with paragraph 2 of the Summary of Facts. In that summary, it was said that there were four males and one female sitting on the bed in the room for which the accused was seen leaving, that appears to be a total of six persons. I do not know and there is no evidence as to what the five others were investigated for. There may have been others but I am bound by the Summary of Facts. It was perfectly appropriate to release the accused on police bail in May 2016. However, it appears they were important conditions which lasted until October of that year. Then the accused was released unconditionally. There is no evidence that there was any message to the accused that went without unconditional release such as “you are still subject of an investigation”. All of that took a fraction under 6 months.
I can readily accept the investigating of the drugs component of the arrest may have taken something of the order of 6 months. I have the greatest difficulty in accepting much more than that. I perfectly accept that the Hong Kong police work very hard and are generally highly diligent in bringing offenders to justice. That has been my experience as counsel in the Department of Justice, in private practice, and on the bench.
It took from April 2016 to July 2017 for the police to conclude the investigation. I take 14 July 2017 as the marker for the completion of the police investigation because on that day, a covering report was prepared by the police and the whole case was submitted to the Department of Justice for legal advice. That is 15 months to conclude the investigation. I simply cannot understand how the drug component of that investigation could not be separated out. It might well be that the police approached the case on the basis that only when the whole 21 arrestees were investigated and considered should the covering report be prepared and the file sent to the Department of Justice. That seems to me to be a curious way to manage an investigation. It then took just over 15 months for legal advice to be rendered on what is an utterly simple trafficking in a dangerous drug case.
There is one episode which is not mentioned in submissions and it provides an insight into an important component of the history of the matter. On 23 May 2017, the accused was arrested at the Lo Wu Border Post by officers of the customs and excise service because the accused was found to be in possession of 7.13 grammes of ketamine concealed in a red packet under the insole of his left shoe. He was taken before a magistrate the next day. He was remanded in custody until 28 November 2017. On that day, the accused pleaded guilty and was convicted of trafficking in a dangerous drug in the District Court (DCCC 696/2017). He was sentenced to imprisonment for 18 month. He went to prison and was discharged on 21 May 2018. Given the sentence imposed by Judge C P Pang of the District Court, the time of release is almost certainly explained by the fact that he had been in custody upon the order of the court from the date of his arrest until he was sentenced and that had to be taken into account. In addition, under the prison rules, commissioner of correctional services has a discretion to remit up to one-third of a sentence of a prisoner of the type of which the accused was. That may have been a factor.
The prosecution contends that the police were not able to find the accused. Pausing there, there is not the slightest suggestion the accused knew anything of the activities of the police or the Department of Justice. There is not a scrap of evidence that he was in any way avoiding the police or to use the colloquial expression “laying low”. For a fraction of under 12 months of that period, the police were clearly looking in the wrong place. He was in prison.
The accused was at liberty on the streets as it were, and shortly after the arrest on an unrestricted basis after October 2016. He was in custody between 23 May 2017 and 21 May 2018. And then was at liberty until 24 March 2019 when he was arrested. That is something of the order of just under 10 months.
Once the accused had been arrested, as Ms Ko for the prosecution correctly observes, he was promptly charged and put up before a magistrate. The delay which occurred between the date in which the accused was put up before the magistrate and the present date is unacceptably long but a substantial part of it was adjournment at the request of lawyers representing the accused. It is correct to say that what appears to have motivated some of those adjournments was a perhaps quixotic notion of a plea bargain. Part of the delay concerned a desire to change legal teams. Further, the COVID virus played a part in this as well and a total of 4 months can be attributed to that. Delay following the arrest of the accused in 2019 can largely be laid at the feet of the accused. It would be manifestly inappropriate to take account of that almost 2-year period.
All of that said, there has been substantial delay in this case. It is certainly true that some of the time from 1 May 2016 when the accused was released on police bail was taken up on an entirely legitimate police enquiries. It could probably be said to have occurred until August 2016, some 4 months after the initial arrest. However by October 2016, as has been noted, the accused was released unconditionally because of the lack of progress in the case.
Part of why it took so long to seek, let alone obtain legal advice which is something which will, regrettably, remain a mystery. Legal advice was finally obtained in August 2018, which is 2 years and 4 months after the arrest. That advice was to proceed with the charge of trafficking in dangerous drugs. Given the comparative simplicity of the case, the time taken for the case to be presented for legal advice is, to say at least somewhat leisurely. This was a case which could have been put up to the Department of Justice about 6 months after the arrest. On no account could a delay of so many months be considered an appropriate one for legal advice in relation to the case of the accused. Even if there were other accused or suspects, it takes no great feat of legal skill to separate his case off from many others who were arrested.
However, as is noted, the accused was not located until March 2019. While it is true efforts were made to locate him, leaving aside his prison sentence, I see no evidence which would support the conclusion that the accused was avoiding the authorities. However, I cannot see how the accused was in any way to blame for the fact that it took until March 2019 to charge him before a court. I do not think that any of the time after that point could be characterised as inordinate delay. Indeed, a fair reading of the record would suggest that there came a time when the court was being very tolerant, perhaps excessively so, at the lack of progress in the case.
There is no evidence of anxiety over the resolution of the case caused on the part of the accused or depression or other consequences. There is no evidence of any attempt to reform or anything like that but there has been a clear delay. Given the somewhat complex history of this case, while there has been a substantial period of delay, it is somewhat of a challenge to identify with precision how long that is. I think about 2½ years can be characterised as inordinate and unacceptable delay. While it is true that for some time during that period the police were actively doing things to advance the case, it is no fault of the accused that he knew nothing of that. However, given the incarceration of the accused for something of the order of 12 months within that period, I think the proper resolution of the matter mandates that I reduce the sentence upon the basis of the inordinate delay being about 18 months. In short, I do not propose to give any credit for any of the delay while he was in prison.
The second challenge is to ascertain what reduction to an otherwise perfectly appropriate sentence should be accorded to the accused by reason of this delay. As I say, it is impossible for me to put a precise figure on the unacceptable delay in this case. It is a delay which I think is right to give credit to the accused for a delay of about 18 months. Even that does not sit wholly comfortably with the whole case taking 5 years to resolve. I do not think there is a perfect answer either as for the quantum of unacceptable delay or how to translate that into a reduction from an otherwise appropriate sentence. Doing the best I can to balance all of the foregoing considerations, I think a further reduction of the overall sentence of 7 per cent is appropriate.
Before sentencing the accused, it is appropriate that I express my profound gratitude to counsel for both parties. They have materially contributed to a just resolution of this case.
Resolution
On the basis of the starting point of 8 years and 2 months and a reduction of a total of 40 per cent, being the reduction for a plea of guilty of 33 per cent and the 7 per cent I further reduce the starting point on account of delay, I order that the accused be imprisoned for 4 years and 10 months.