HKSAR v. Leung King Hung

CACC 128/2022, [2024] HKCA 804

On Appeal From [2022] HKCFI 2619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 128 OF 2022

(ON APPEAL FROM HCCC NO 235 OF 2021)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.On 29 July 2022, following a trial before Barnes J (“the judge”) and a jury, the appellant was convicted of one count of conspiracy to traffic in dangerous drugs. The indictment alleged that, between 5 and 15 July 2020 (both dates inclusive), the appellant conspired with Kwong Shun Pan, Rhonaldo (“PW1”), Kwong Yat Tung (“PW2”), a person known as “Amy”, a person known as “Tai Tau” and other persons unknown to unlawfully traffic in dangerous drugs, namely methamphetamine hydrochloride (commonly known, and hereinafter referred to, as “Ice”), ketamine and cocaine. He was duly sentenced to 22 years’ imprisonment.

2.On 24 August 2022, the appellant filed a notice of application for leave to appeal against conviction and sentence, in which he set out certain home-made grounds of appeal. These grounds were substituted by perfected grounds of appeal against conviction, filed on 24 November 2023 by Mr Leung Chun Keung (“Mr CK Leung”), acting on the appellant’s behalf at the appeal in respect of conviction only; and perfected grounds of appeal against sentence, filed on 23 December 2022 by Mr James Tze, acting on his behalf at the appeal in respect of sentence only.

3.On 19 January 2024, the Single Judge granted leave to appeal against sentence on Grounds 1 and 3 only of the appellant’s perfected grounds of appeal against sentence[1]. Leave to appeal on all other grounds of appeal against conviction and sentence was refused. On 23 April 2024, Mr Tze duly filed his written submission with the Court.

4.On 26 April 2024, the appellant filed a Form XIII, dated 3 February 2024, renewing his application for leave to appeal against sentence on Ground 2 and against conviction on all grounds. In relation to sentence, no written submission was filed. Insofar as conviction was concerned, no written submission was filed until 30 July 2024, when Mr CK Leung indicated that the appellant would be renewing his application for leave to appeal on Ground 1 only.

5.On 5 August 2024, the appellant through his solicitors filed a draft affirmation[2] to explain the delay of more than three months in filing his renewal application. The appellant explained that he had passed the Form XIII renewal notice to his Welfare Officer in early February 2024 but only came to know it had not been forwarded to the court in April 2024, whereupon he immediately sent it to the court himself. The fact that the renewal notice was signed by the appellant on 3 February 2024, but was only received by the court on 26 April 2024 lends some support to the appellant’s explanation. If so, he plainly signed the renewal notice within time.

6.In any event, this Court has recently received a hand-written letter from the appellant, dated 10 July 2024, indicating that he intends to abandon his renewed grounds of appeal against conviction, other than the one argued by Mr CK Leung, namely Ground 1. We were also informed by Mr Tze at the hearing of the appeal that the appellant wishes to abandon the renewed Ground 2 of his grounds of appeal against sentence. In all the circumstances, we accept the appellant’s explanation for the apparent delay and will proceed on the basis only of the grounds advanced by counsel.

7.Having heard from Mr CK Leung in respect of conviction, we did not call upon Mr Anthony Leung (“Mr Anthony Leung”), for the respondent, to reply, refused leave to appeal and dismissed the appeal. In respect of sentence, having heard from Mr Tze, we allowed the appeal against sentence and reduced the appellant’s sentence from 22 years’ imprisonment to 19 years’ imprisonment. We indicated that we would hand down the reasons for our decision at a later date, which we now do.

The relevant facts

8.At the time of the offence, PW2 was 13 and PW1, 15 years of age. The appellant, by contrast, was 24. In July 2020, PW2 was approached and agreed to deliver dangerous drugs locally within Hong Kong. Pursuant to this arrangement, he was given some dangerous drugs and told to keep them at home pending further instructions. On 10 July 2020, PW2 happened to meet by chance a former schoolmate, PW1, whom he then recruited to join him in the trafficking of dangerous drugs. On 14 July 2020, PW2 received instructions from a person known as “Amy” (who it seems was a male) to make deliveries of certain drugs that day. PW2 therefore contacted PW1 to come to his home so that they could arrange for the deliveries. Accordingly, later that day, PW1 and PW2 delivered dangerous drugs as instructed to customers at various locations in Hong Kong, which included Tsim Sha Tsui, Mongkok and Tai Kok Tsui in Kowloon, and Sheung Wan and North Point on Hong Kong Island.

9.Having completed the deliveries, the two boys then went to the California Hotel in Tsim Sha Tsui, to a hotel room, which had coincidentally been rented by a friend of PW2. At about 10 pm, PW2 was instructed to go to Diamond Hill to hand over the money collected for the dangerous drugs they had trafficked that day. Both PW1 and PW2 duly went to Diamond Hill where they met, for the first time, the appellant and another male called “Tai Tau”. After handing over the money to the two men, it was claimed that the money did not tally with the quantity of drugs they had earlier sold. PW2 was then assaulted by Tai Tau with fists and kicks, in the presence of the appellant.

10.The four of them then returned to the hotel room in California Hotel to check the quantities of the remaining drugs to see if they corresponded with the money received for the dangerous drugs sold earlier that day. After this was done, Amy telephoned PW2, telling him that the appellant and Tai Tau were satisfied that the quantities of the remaining dangerous drugs did, after all, tally with the drugs sold.

11.The four then left the California hotel room together but happened to come across several uniformed police officers patrolling on Nathan Road in Tsim Sha Tsui. Accordingly, they split up into two groups: the appellant walked with PW1, who was carrying the remaining dangerous drugs; while Tai Tau accompanied PW2. The remaining dangerous drugs consisted of 44.76 grammes of “Ice”, 0.28 gramme of cocaine and 9.42 grammes of ketamine.

12.Since the police officers thought that the appellant and PW1 were behaving suspiciously, they stopped and searched them, discovering the dangerous drugs inside the bag PW1 was carrying. There was also a cigarette box, with three cigarettes containing cannabis. No drugs were found on the appellant; however, he had in his possession $27,300 cash in his back pocket and $1,878.20 cash in his wallet; a total of HK$29,178.20.

13.Other police officers also stopped and searched Tai Tau and PW2 but, since nothing suspicious was found on either of them, they were allowed to go after enquiry.

14.However, following this incident with the police, Tai Tau blamed PW2 for causing them trouble and contacted three other persons to come out to meet him. After taking PW2’s keys and telephone, the three persons took him to a construction site where they severely assaulted him on the head and body. Two other persons then joined the group, and the beating continued with fists and kicks and the use of a metal water pipe. Contact was made with PW2’s friends and relatives, and demands were made of them to secure PW2’s release. Eventually, PW2 was released, but only after he had agreed to continue trafficking dangerous drugs for Amy by way of compensation.

15.Meanwhile, PW1 disclosed to the police that he had become involved in trafficking dangerous drugs at the instigation of PW2 and directed them to the hotel room, where PW2 was subsequently arrested. PW2 then also disclosed to the police his involvement in the trafficking of the drugs.

Reasons for sentence

16.In passing sentence, the judge concluded that whilst the appellant was not the “mastermind”, nor did he hold “any high position in the syndicate”, he nevertheless played “an important role”[3] in the conspiracy. She adopted a starting point of 20 years’ imprisonment, before enhancing it by 2 years because of the involvement of two minors, thus making 22 years’ imprisonment[4].

17.The judge described the criminality involved in the following terms[5]:

“The evidence showed that the defendant is part of a syndicate supplying dangerous drugs locally. Members of the syndicate made use of youngsters to do their dirty business.

In the present case, Ah Tung [PW2] picked up the dangerous drugs first and kept them at his home waiting for instructions. Then, on 14 July, he received instructions to deliver kinds of dangerous drug of different quantities to various customers at different locations.

In using youngsters like Ah Tung, the other members avoid the risk of being caught with the dangerous drugs. After the youngster, in this case, Ah Tung, had finished delivering dangerous drug, members of the syndicate collected the money generated from the sale of the dangerous drugs.

According to Ah Tung, he was beaten up by members who accused him of not having the correct amount of money to correspond the number of packets of dangerous drugs sold. Ah Tung was further beaten up when he was accused of causing the syndicate trouble when Ah Pan [PW1] and the defendant were arrested. No less than another five men were involved in beating up Ah Tung near Choi Hung. And he was further beaten up at the water catchment area by three of the five men. One even used a metal pipe to hit him. And Ah Tung finally agreed to work for the syndicate as compensation. So one can see the length this syndicate goes to commit the serious crime of trafficking in dangerous drugs.”

18.No meaningful mitigation was advanced on the appellant’s behalf. At the time of the offence, he was single and unemployed. He had prior convictions for acting as a member of a triad society, theft and, more significantly in May 2015, trafficking in dangerous drugs, for which he was given a 3-year prison sentence by the District Court. He was released from that sentence on 31 December 2016, some 3½ years before the commission of the present offence.

Renewal application for leave to appeal against conviction

The appellant’s submissions

19.It is Mr CK Leung’ complaint that the judge failed to direct the jury that the guilty pleas of PW1 and PW2 were not evidence against the appellant.

20.He initially submitted that the judge should have given a direction to the jury in accordance with Specimen Direction 116 of the Specimen Directions in Jury Trials[6] along the following lines:

“The guilty pleas of PW1 and PW2 can have no bearing on your decision in the case of this defendant. Your task is to decide whether the defendant is guilty or not guilty on the evidence given in this trial and their position must not influence your decision in any way. Their admissions of guilt do not take the case against the defendant any further.” (Mr CK Leung’s emphasis).

21.It was contended that despite the judge giving the jury an appropriate accomplice warning[7] in accordance with Specimen Direction 109[8], that was insufficient, since the two directions served different purposes. Specimen Direction 109 only warned the jury to approach an accomplice’s evidence with caution, since he might be lying in the hope of receiving a lighter sentence. However, it did not remind the jury that the accomplice’s guilty plea had no bearing on their decision in the case of the defendant before them, and was not relevant to any issues in the case, including the credibility of the accomplice witness’s evidence. It was submitted that without a direction along the lines of Specimen Direction 116 as suggested, the jury might have wrongly thought that the guilty pleas of PW1 and PW2 were indicative of their remorse, and that, therefore, they must be honest and credible witnesses.

22.Ultimately, Mr CK Leung modified his position to acknowledge that Specimen Direction 109 did warn the jury against relying on the evidence of an accomplice, who might have a purpose of his own to serve; and he accepted that Specimen Direction 116 did not deal specifically with the position he was putting forward. Nevertheless, he maintained that Specimen Direction 109 did not go so far as to direct the jury that they must not regard an accomplice’s plea of guilty as a factor supporting his credibility. He contended that this general warning should always be given, and was missing in the present case.

The respondent’s submission

23.Mr Anthony Leung, for the respondent, submitted that a direction along the lines of Specimen Direction 116 was not necessary in the present case. Firstly, the jury was fully aware of the fact that PW1 and PW2 had pleaded guilty to the same offence faced by the appellant, and that they were accomplice witnesses who might receive a discount on sentence[9]. Moreover, PW1 and PW2 had each given a detailed account of their own and the appellant‘s involvement in the offence. In circumstances where they had actually given evidence against the appellant following pleas of guilty, there could have been no conceivable prejudice to the appellant arising from the judge’s failure to give a warning about the mere fact of pleading guilty: see HKSAR v Posso Vergara Cristhian Enrique[10].

24.Secondly, reading the summing-up as a whole, the judge had given proper and adequate directions to the jury. In particular, he directed the jury that it was for them to decide whose evidence was credible and reliable[11]; he explained the witnesses’ status as accomplices[12]; he fairly pointed out the inconsistencies in the witnesses’ testimony[13]; he reminded the jury to bear in mind that the witnesses had been involved in other criminal activities[14]; and he warned the jury to approach their evidence with care and caution[15]. Accordingly, there was nothing to suggest the jury might have employed an impermissible line of reasoning by finding that PW1 and PW2 were credible and reliable witnesses simply because they had pleaded guilty to the same offence faced by the appellant.

25.Thirdly, having compared the purpose and wording of Specimen Directions 109 and 116, Mr Anthony Leung submitted there could be a potential contradiction between the two directions, which might have unnecessarily confused the jury if deployed indiscriminately. Specimen Direction 109 was specifically tailored for the situation where (i) a co-defendant had pleaded guilty; but (ii) he had also testified for the prosecution. It warned the jury to approach the evidence of an accomplice witness with caution as the witness had an obvious incentive to implicate the defendant falsely in return for a lighter sentence; accordingly and implicitly, his guilty plea(s) must have a material bearing on his credibility. On the other hand, Specimen Direction 116 reminded the jury that the fact that an accomplice witness had pleaded guilty had no bearing on the jury’s decision (which would include the assessment of an accomplice witness’s credibility) and must not influence their decision in any way.

26.In any event, fourthly, it was a matter for the judge’s discretion what, if any, warning she considered appropriate in respect of a witness who fell into the category of an accomplice[16]. In this regard, the judge could not be said to have erred.

Discussion

27.The judge was at some pains to warn the jury, in conformity with Specimen Direction 109, that they should be careful and cautious of the evidence of PW1 and PW2, because they each had an obvious incentive in pleading guilty and giving evidence against the appellant[17]. The jury obviously knew they had pleaded guilty because they had given evidence to that effect[18] before detailing their complicity in the conspiracy consistent with their pleas. The situation was different where an accomplice named in the indictment had not given evidence. All the jury would know in that case was that one of persons named in the indictment as an accomplice of the defendant whom they were trying had pleaded guilty to the offence. In such a situation, it would obviously be prudent for the judge to tell the jury that the fact of the plea of guilty of such an accomplice, from whom they had not heard, had no bearing on, and must not influence, their decision in relation to the defendant on trial in any way[19].

28.However, where a named accomplice has pleaded guilty and then given evidence in conformity with his plea against a defendant before the jury, the fact of the accomplice’s plea, albeit providing the context and reason for his being in the witness box, is of less significance than the quality of the evidence he has given against the defendant. As Zervos JA, giving the judgment of the Court in Posso Vergara Cristhian Enrique, explained[20]:

“The fact of D2’s guilty plea to the joint count was subsumed by the evidence he gave for the prosecution as an accomplice witness against the appellant and D3. It is difficult to comprehend what, if any, conceivable prejudice resulted from D2’s evidence that he had pleaded guilty to the offence when he was giving details of his involvement together with other persons in this crime, particularly the appellant and D3.”

29.To direct a jury in such a case, on the one hand, in accordance with Specimen Direction 109, that they “should bear in mind that (an accomplice) has already pleaded guilty to the offence with which the defendant is charged and gave evidence which implicated the defendant after agreeing to help the prosecution” and that they should, therefore, “approach (the accomplice’s) evidence with caution, knowing he has an obvious incentive to give evidence which implicates the defendant”; while on the other hand, in accordance with Specimen Direction 116, that the accomplice’s plea of guilty “can have no bearing on your decision in the case of this defendant” and “must not influence your decision in any way”, is potentially confusing. Moreover, where the accomplice has given evidence, it is unnecessary.

30.However, any confusion does not arise if the accomplice has not testified because there is no evidence from the accomplice to bear in mind. In such circumstances, Specimen Direction 109 is unnecessary. However, where the accomplice has pleaded guilty and then given evidence implicating the defendant, we see nothing wrong in the judge confining his/her directions to Specimen Direction 109 and warning the jury about the obvious incentive he thereby has to falsely implicate the defendant.

31.We do not, therefore, accept the appellant’s argument that a judge must always direct the jury that an accomplice’s plea of guilty can have no bearing on his credibility when giving evidence; nor do we accept that there should be a more general direction warning the jury not to regard the fact of the accomplice’s plea of guilty as supporting his credibility. In this case, the judge’s directions were clear and sufficient. For these reasons, we refused leave to appeal against conviction and dismissed the appeal.

Appeal against sentence

The appellant’s submissions on Grounds 1 and 3

32.As we have said, leave to appeal against sentence was granted on Grounds 1 and 3 by the Single Judge; the renewal of Ground 2 has since been abandoned. Ground 1 complains that the judge failed to reach a fair conclusion about the quantity of drugs that were agreed to be trafficked as part of the conspiracy. Ground 3 is a general complaint that the sentence of 22 years’ imprisonment for the offence was manifestly excessive.

33.Mr Tze dealt with the two grounds together by applying the six-step approach in HKSAR v Herry Jane Yusuph[21]. In respect of Step 1, Mr Tze submitted that the total quantity of drugs involved in the conspiracy was the sum of the drugs earlier delivered by PW1 and PW2 (the drugs sold) and the remaining drugs found on the appellant upon arrest, namely 44.76 grammes of ice, 0.28 grammes of cocaine and 9.42 grammes of ketamine (the remaining drugs). By converting all the remaining drugs into “Ice”, the total quantity could be quantified at 46.97 grammes of “Ice”. Given that the quantity of the drugs sold earlier was assumed to be equivalent to the remaining drugs, the total quantity of drugs was, therefore, about 94 grammes of Ice, which fell within the band of 70-300 grammes in HKSAR v Tam Yi Chun[22], thus attracting a starting point within the range of 11 to 15 years’ imprisonment. Accordingly, the base starting point would be 11 years and 5 months’ imprisonment, if calculated arithmetically according to quantity. These figures, and the assumptions which underlay them, were not the disputed by the respondent.

34.In respect of role and culpability, under Step 2 of Herry Jane Yusuph, Mr Tze argued that the appellant played a relatively minor role[23]: he was neither the mastermind, nor was he in a high position, which were matters already accepted by the judge. Nor did he personally recruit PW1 and PW2. The appellant should, therefore, be regarded as a “junior supervisor”, one level above the couriers, PW1 and PW2, but a level below Tai Tau. It was Tai Tau who talked to, collected money from and assaulted PW2 when the receipts did not tally. It was Tai Tau’s decision to ask PW1 and PW2 to leave the hotel together. And, it was Tai Tau who was said to have made contact with PW2 to arrange deliveries. In contrast, there was no evidence to suggest that the appellant assaulted or ordered the assault of PW2, or that he knew about the other assailants (apart from Tai Tau). As for the engagement of minors in drug trafficking and the multiplicity of dangerous drugs, Mr Tze submitted that these factors could be considered either at Step 2 of Herry Jane Yusuph, or at Step 4, as separate aggravating features. Accordingly, he had no quarrel with the judge dealing with them at Step 4, providing there was no double-counting involved.

35.As for Step 3, Mr Tze submitted that the relevant band was 11 to 15 years’ imprisonment. Having considered the base starting point of 11 years and 5 months’ imprisonment, as well as the role and culpability of the appellant, Mr Tze argued that the appropriate starting point should have been in the region of 12½ years’ imprisonment.

36.In relation to Step 4, Mr Tze suggested a 6 months’ enhancement for the multiplicity of dangerous drugs[24], and a 2 years’ enhancement for engaging minors to traffic in dangerous drugs[25]; but advocated no enhancement for the appellant’s previous criminal record, since there was only one similar conviction several years ago and two unrelated convictions.

37.As for mitigating factors at Step 5, Mr Tze accepted there was no meaningful mitigation, other than that the appellant was acting on instructions.

38.In respect of Step 6, Mr Tze submitted that the starting point of 20 years’ imprisonment and the resulting sentence after trial of 22 years’ imprisonment adopted by the judge was a “crushing” sentence out of proportion to the appellant’s criminality and the totality of the aggravating factors. He pointed out that the final sentence of 22 years’ imprisonment was almost twice the base starting point of 11 years and 5 months’ imprisonment for the actual or assumed quantity of dangerous drugs concerned.

The respondent’s submissions on sentence

39.Mr Anthony Leung contended that the overall sentence of 22 years’ imprisonment was justifiable in the circumstances. Firstly, the amount of drugs involved was considerable. He did not dispute the assumption that 94 grammes of “Ice” after conversion had been trafficked on the day of arrest, which would have attracted a notional starting point of 11 years 5 months’ imprisonment in respect of a courier[26] under Step 1 of Herry Jane Yusuph, had the offence been one of trafficking. However, this was a case of conspiracy, which on the evidence had lasted several days.

40.The appellant was not a mere courier or storekeeper; he was in a more culpable role as a manager or organiser because he was responsible for executing the instructions of Amy and ensuring that the correct amount of the sales proceeds of the dangerous drugs would be handed over by PW2.

41.He submitted that four aggravating factors were involved in the present case under Step 4 of Herry Jane Yusuph. First, the exploitation of minors has long been regarded as a serious aggravating factor[27]. In the present case, that exploitation was particularly grave: two minors were involved, where PW1 was 15 and PW2 was 13 years of age at the time of offence; PW2 could be regarded as of extreme youth; the appellant was 24 at the time of offence and was, therefore, older than PW1 by 9 years, and PW2 by 11 years; and violence had been used against PW2 on multiple occasions, and on one occasion in Diamond Hill in the presence of the appellant[28]. Accordingly, the appellant must have known that violence would be deployed against minors whenever the senior members of the syndicate thought it was necessary.

42.Secondly, the syndicate was sizeable and well-structured. It had a number of members with at least three tiers in its hierarchy: (i) Amy at the top, who gave instructions to the members of the syndicate; (ii) the appellant, Tai Tau and others, who ensured that PW1 and PW2 would deliver the drugs to customers and return the sales proceeds to the syndicate; and (iii) PW1 and PW2 as the actual drug traffickers at the bottom of the hierarchy.

43.Thirdly, multiple drugs and multiple transactions were involved. There were at least three kinds of dangerous drugs involved, including “Ice”, cocaine and ketamine. On 14 July 2020, PW1 and PW2 had delivered the drugs to several customers at various places including Tsim Sha Tsui, Mongkok, Tai Kok Tsui, Sheung Wan and North Point. In the circumstances, it was reasonable to infer that the syndicate was an ongoing operation beyond the conspiracy period which lasted about 10 days[29], with many transactions and customers, and that it would continue to deliver drugs to other customers on a frequent basis had its operation not been brought to an end.

44.Fourthly, the appellant had a previous conviction for trafficking in dangerous drugs[30]. He had evidently not learnt his lesson and committed the present offence, which was much more serious than the last, a mere three and a half years after coming out of prison. In addition to the need for public deterrence where minors were involved, a significant element of private deterrence was required to ensure that the appellant would not offend again.

Decision

45.The allegation in this case was a conspiracy to traffic in dangerous drugs over a period of time: it was not a substantive offence of trafficking on a single occasion. According to his evidence, PW2 had joined what was clearly a pre-existing conspiracy in “early July”[31], when he was contacted by Amy[32] and agreed to act as a courier of dangerous drugs for HK$2,000 per day[33]. His active involvement began on 10 July when he was instructed to collect a box containing various packets of dangerous drugs from Sham Shui Po and keep them at home pending further instructions for delivery[34]. In the evening of the same day, he invited PW1 to help him distribute the drugs, telling PW1 that “he was now doing a job of trafficking in dangerous drugs”[35]. On 14 July, both PW1 and PW2 were instructed to deliver consignments of various dangerous drugs, which had already been labelled[36], to customers in five different areas of Kowloon and Hong Kong Island. PW1 and the appellant were arrested in the early hours of 15 July, with dangerous drugs seized from the bag PW1 was carrying.

46.This may have been the extent of the role of PW2, and later PW1, in the distribution of dangerous drugs in Hong Kong. However, it was obviously not the extent of the conspiracy, which they joined. The evidence established that PW2 was recruited in early July, dangerous drugs (already labelled[37]) were handed over to him to store on 10 July, after which he was supplied with the telephone numbers of customers he was to call to arrange delivery of the drugs[38], and deliveries were then made on 14 July. Two other members of the syndicate then entered the picture, one of whom was the appellant and the other, Tai Tau, in order to receive the day’s takings. When it was discovered (or, perhaps, deliberately claimed) that the money received did not tally with the drugs delivered, PW2 was assaulted by Tai Tau in the presence of the appellant before being escorted back to the California Hotel. Later, after the police interception, a further five persons arrived in two groups to assault and intimidate PW2, until he agreed to continue working as a courier for the syndicate.

47.It is clear from the evidence that this was a sizeable syndicate with a defined hierarchy. There were at least ten people involved in the conspiracy, including Amy, described by PW2 as “the boss”[39], who never appeared but gave the instructions and was communicated with throughout by telephone; the appellant and Tai Tau, who were to receive the proceeds of trafficking and effectively “mind” the couriers; five enforcers whose function it was to discipline the couriers; and the two couriers themselves. Various customers were spread throughout Kowloon and Hong Kong island and, obviously, they did not just come into being on 14 July. Their contact details, as well as differently labelled drugs for distribution, had been given to PW2 well beforehand.

48.Furthermore, the whole purpose of beating up PW2 and intimidating his family appears to have been so that he would agree to continue working for Amy as a form of “compensation” for the trouble he was alleged to have caused[40]. As a result, he did agree to continue working as a courier for the syndicate. When the appellant and PW1 were arrested, a lawyer was quickly mobilised to attend the police station[41]. This was evidently a highly organised syndicate, which intended to continue trafficking dangerous drugs within Hong Kong after 14 July 2020. Although we must bear in mind that the ambit of the conspiracy charged was between 5 and 15 July 2020, it is idle to assume that the syndicate only came into being to traffic dangerous drugs on one particular day. Customers existed before 10 July and would have continued after 14 July, which is why PW2 was coerced into continuing to act as a courier for the syndicate. Moreover, he would have continued to do so, had the operation not been brought to a halt by the arrests of 15 July.

49.Given these facts, which emerged from the evidence, it was wholly unrealistic to limit the scale and extent of the conspiracy to the dangerous drugs that were found on PW1, even if the quantity was then notionally doubled to represent the total quantity of dangerous drugs trafficked on one particular day, and to then sentence on the basis of that assumed quantity alone. We note, for example, that the cocaine seized from PW1 comprised a mere 0.79 grammes of a solid containing 0.28 grammes of cocaine in two tiny packets. It would be absurd to assume that by simply doubling the amount of cocaine seized on 14 July, the resulting quantity represented the extent of this syndicate’s trafficking in cocaine.

50.However, although the offence of conspiracy to traffic in dangerous drugs called for the judge to make a realistic assessment of the scale of the operation on the available evidence, there is some force in the criticism of the judge’s adoption of 20 years’ imprisonment as the starting point. We asked both counsel how the judge had arrived at 20 years as a starting point, given that the use of minors as an aggravating feature should be excluded from that equation, since that factor merited the further enhancement of 2 years’ imprisonment, taking the sentence to 22 years’ imprisonment. The appellant suggested there must have been double-counting of the ‘use of minors’ factor to have arrived at a starting point of 20 years; while the respondent sought to argue that the appellant’s role and culpability, the size and structure of the drug trafficking operation, the trafficking in a multiplicity of different dangerous, the appellant’s criminal record and the exploitation of minors, who were assaulted to enforce compliance and discipline, would nevertheless have justified a sentence after trial of 22 years’ imprisonment.

51.The problem with the respondent’s argument is that the sentence was not approached in the way this Court has suggested in Herry Jane Yusuph; indeed, the multiplicity of dangerous drugs and the appellant’s criminal record were not cited by the judge as specific aggravating features at all. By the same token, she did mention the “use of youngsters to do (the conspirators’) dirty business” twice when setting out the factors warranting a starting point of 20 years’ imprisonment[42], and then again when justifying a further 2-year enhancement[43], thus giving the impression that this factor may have been double-counted.

52.The case was not an easy one to sentence, given the assessment that was required to be made of the scale and extent of the conspiracy concerned. PW1’s evidence was not particularly helpful in this regard, while PW2’s evidence began by being less than forthcoming. Nevertheless, we feel that a principled approach in accordance with the six steps set out in Herry Jane Yusuph will assist judges in compartmentalising the various factors relevant to sentence in such cases, and allow the appellate court to see how a particular sentence has been arrived at. It will also guard against the risk of double-counting, or of including irrelevant factors and excluding relevant factors in the sentencing process.

53.In all the circumstances, we considered that a starting point of 20 years’ imprisonment, before consideration of the aggravating factor of using two minors to act as couriers by the syndicate, was manifestly excessive. Accordingly, it is necessary for us to reconsider the sentencing exercise in this case.

54.If we apply Step 1 of Herry Jane Yusuph, it has been agreed between the parties that the quantity of dangerous drugs seized alone, duly converted and doubled by way of assumption, thus producing 94 notional grammes of “Ice”, would place the case in the 11 to 15 years’ imprisonment bracket for 70 and 300 grammes of “Ice”, in accordance with the guidelines in Tam Yi Chun. A strictly arithmetical approach to quantity would have yielded a sentence for trafficking of 11 years and 5 months’ imprisonment. However, this was not a trafficking case simpliciter: it was a conspiracy to traffic in dangerous drugs.

55.Step 2 of Herry Jane Yusuph requires that we examine the role and culpability of the appellant in this conspiracy. The evidence established that it was a sizeable conspiracy, in which the appellant was the “manager” or “minder” of the couriers. He was present when PW2 was assaulted by Tai Tau in order to enforce discipline, after which both he and Tai Tau accompanied PW1 and PW2 back to the California Hotel, where they conducted a reconciliation exercise between the money received that day and the remaining dangerous drugs. Amy was then contacted from the hotel room with the results.

56.Accordingly, given the appellant’s role and culpability in a sizeable operation, in which the quantity of dangerous drugs involved were clearly much greater than those being carried by PW1, we would adopt a starting point of 15 years’ imprisonment for this conspiracy to traffic in dangerous drugs, which is at the top of the relevant bracket for trafficking in dangerous drugs. That is not to say we feel limited or constrained by the upper limit of the relevant bracket, or that we cannot go outside it; however, without more evidence, we are not prepared to consider a starting point of above 15 years’ imprisonment.

57.Step 4 of Herry Jane Yusuph then requires us to consider any aggravating features, which go to enhance the starting point of 15 years’ imprisonment. Here there are three relevant aggravating factors. The first and most significant factor is the cynical use (and abuse) of minors, one of whom was only 13 years of age, the other 15 years of age, to do what the judge described as the syndicate’s “dirty business”. Even when PW1 and the appellant were intercepted and arrested, the appellant had made sure that he was not the one found carrying the dangerous drugs.

58.Where minors (one of whom may properly be described as no more than a child) are used by drug traffickers, no doubt to make it easier to escape detection, there is a particularly egregious element of exploitation and corruption of youth, which must be singled out for strong deterrent sentences. Where minors are also abused by violence and coercion, the imperative for condign punishment is paramount. It should be remembered that the legislature has made express provision, by virtue of section 56A(2)(d) of the Dangerous Drugs Ordinance, Cap 134 for a judge, if duly satisfied by the evidence beyond reasonable doubt, to pass a more severe sentence on a defendant for “employing, hiring, using, persuading, enticing, or coercing, a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence”.

59.On the question of whether the use of minors in trafficking offences is to be regarded at Step 2 of Herry Jane Yusuph as part of the overall circumstances of role and culpability, or at Step 4 as a specific aggravating feature, this must be a matter for the discretion of the sentencing court. We can readily conceive of circumstances where the age of a courier may be little different from the one who asks him to deliver dangerous drugs, or they are closely related in age, or friends or at the same school. In those circumstances, an 18-year-old “adult” who asks a 17-year-old “minor”, who is a friend of his, to deliver dangerous drugs is certainly to be condemned but it is not as aggravating a feature as an older adult member of a syndicate, who uses and abuses minors, especially school children, to traffic in dangerous drugs in order to escape detection and perhaps expand his drug trade amongst minors. The former circumstances may be regarded at Step 2: the latter cry out for specific consideration at Step 4.

60.In Lee Ming Ho, this Court had this distinction in mind when it held[44]:

“There may be cases where a judge considers that such is the seriousness or significance of the factor in aggravation of the offence that it should remain and be addressed as a specific aggravating feature going to enhance the starting point under Step 4 of the approach in Herry Jane Yusuph.”

The particular case now before us was cited in Lee Ming Ho as an example where the sentencing judge had done exactly that. In our judgment, she was correct to do so. The futures of PW1 and PW2 have been blighted at a very early stage of their young lives, which will inevitably make it more difficult for them to secure the advantages of a normal adulthood and escape the cycle of crime, into which they have evidently been drawn. We must state clearly that those who involve minors in this nefarious trade must expect no mercy from the courts. The matter is further aggravated where violence is used to reinforce their manipulation and control of young persons.

61.Whilst the judge was right to single this factor out as a specific aggravating feature of the case under Step 4 of Herry Jane Yusuph, we would have enhanced the sentence, in view of the heinous nature of the circumstances, by 3 years’ imprisonment rather than two.

62.The second aggravating feature concerns the multiplicity of dangerous drugs being trafficked, thereby catering to a wider market of consumers: see HKSAR v Yim Hung Lui, Ricky[45]; HKSAR v Law Num Chun[46]; Islam Azharul[47]; Herry Jane Yusuph[48]. The drugs trafficked in the present case were “Ice”, cocaine and ketamine. Also in the bag carried by PW1 when he was arrested were three hand-rolled cigarettes containing cannabis, although curiously cannabis was not particularised in the indictment. Although the judge did not advert to the multiplicity of dangerous drugs, we would have enhanced the sentence of imprisonment by 1 year for this factor.

63.The third aggravating feature concerned the appellant’s previous conviction for trafficking in dangerous drugs, which is also an accepted factor justifying an enhancement of sentence under Step 4 of Herry Jane Yusuph: see Herry Jane Yusuph itself[49]; and Lee Ming Ho[50]. We note that the appellant had been sentenced by the District Court in 2015 to 3 years’ imprisonment for trafficking and emerged from prison right at the end of 2016, three and a half years before the present offence was committed. For this factor, we would enhance the sentence of the appellant by a further 9 months’ imprisonment.

64.Having been convicted after trial, and not having the advantage of a clear criminal record, it was conceded by Mr Tze that the appellant had no realistic or meaningful mitigation to be considered under Step 5 of Herry Jane Yusuph.

65.Finally, under Step 6 of Herry Jane Yusuph, we must consider the totality of the enhancements for the three aggravating features we have discussed. If we were to add them together, we would arrive at an overall enhancement of 4 years and 9 months’ imprisonment to be added to the starting point of 15 years’ imprisonment, thus making a sentence of 19 years and 9 months’ imprisonment. Given the starting point adopted, and in order to ensure that the enhancements do not unduly inflate the overall sentence, we would reduce the overall enhancement to 4 years.

66.In the circumstances, the sentence should have been one of 19 years’ imprisonment after trial. It was for these reasons that we allowed the appellant’s appeal against sentence and reduced the sentence of 22 years’ imprisonment passed by the judge to one of 19 years’ imprisonment.

Mr Antony Leung SPP, of the Department of Justice, for the Respondent

Mr James Tze, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Appellant (re: Sentence)

Mr Leung Chun Keung, instructed by C M Chow & Co, for the Applicant (re: Conviction)