HKSAR v. Wong Yut Wah

CACC000234/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.234
(Criminal)

-------------------------------

Coram: Hon. Power, V.-P., Mortimer, V.-P. & Mayo, J.A.

Date of Hearing: 5 December 1997

Date of Judgment: 5 December 1997

----------------------

J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. An application has been made by Mr. Macrae, who appears for the applicant today, to adjourn this matter upon the basis that the applicant has in August and September of this year given statements which may eventually be able to be characterized as fruitful assistance. Mr. Macrae is, however, not able to indicate any real possibility as to the time in which such might occur. We must approach an application such as this upon the basis that the executive is as mindful as is this court of the need to encourage such cooperation. Given that to be so, we are satisfied that the interests of justice would not be served by an indefinite adjournment and the application is, therefore, refused.

2. The applicant in this matter pleaded guilty to one count of conspiracy to traffic in dangerous drugs, one count of conspiracy to manufacture dangerous drugs and one count of trafficking in dangerous drugs.

3. The counts read originally as follows. The first conspiracy to traffic - that he on divers days between July 1994 and November 1994, conspired with Lo Chong-wing, Ko Lai-chung and other persons unknown, to unlawfully traffic in a dangerous drug, namely about 485 kilkogrammes of a mixture containing heroin hydrochloride. The conspiracy to manufacture related to the same period and the same other co-defendants and alleged that he conspired unlawfully to manufacture dangerous drugs, namely again 485 kilogrammes of heroin. The third charge of trafficking in a dangerous drug alleged that on 8th November 1994 at Flat 11, 4th floor, Block B, Sheung Shui Trade Plaza, he unlawfully trafficked in a dangerous drug, namely 4,606.30 grammes of a mixture containing 1,182.20 grammes of heroin hydrochloride.

4. After plea difficulties arose because the applicant was not prepared to admit the particulars of the counts and the facts upon which the prosecution was relying. Eventually, however, it was that:

(i) that the defendant was involved in the manufacturing and trafficking of dangerous drugs with Lo Chong-wing and Ko Lai-cheung and other persons unknown from some time in September 1994 to 7th November 1994. (This was a considerably shorter period than was originally charged.)

(ii) during that period the defendant participated in the manufacturing and trafficking of dangerous drugs on at least four or five occasions with those persons at premises of Flat 11, 4th floor, Block B, Sheung Shui Trade Plaza;

(iii) on each of the four or five occasions the quantity of dangerous drugs that was manufactured and trafficked in was approximately the same as the quantity of dangerous drugs found by the police when they raided the premises on 8th November 1994, namely 4,606.30 grammes of mixture containing 1,182 grammes of heroin.

This last admission reduced the overall quantity of heroin involved very considerably.

5. There was no dispute as to the following further facts. At about 5 p.m. 8th November, Lo and Ko were arrested by the police. After cleaning those premises and a thorough inspection of the premises by the police and the government chemist, some dangerous drugs, cutting additive and paraphernalia associated with adulteration and mixing of heroin were found inside the rooms and the paraphernalia was there set out. It was also set out that upon analysis, the amount of drugs found by the government chemist was as I have indicated.

6. As a result of information given to the police by Ko after his arrest, police raided premises at Flat F, 1st floor, Block 3, Cheerful Park, 8 Kat Cheung Crescent, Sheung Shui at about 5 p.m. on 11th November. In one of the rooms of those premises police found certain dangerous drugs. These were the subject of a charge which was not proceeded with.

7. Apart from the dangerous drugs found the police also found a fingerprint belonging to the defendant on a piece of adhesive tape. On 11th February 1995, the defendant was arrested at a restaurant and a search was carried out at his premises and a considerable quantity of cash was found thereon.

8. Those facts having, after considerable negotiation, been admitted, the applicant told the court that he was insisting upon changing his solicitors but not his counsel. This occasioned a further adjournment.

9. When finally disposing of the matter the trial judge said:

"The Defendant pleaded guilty to one count of conspiracy to traffic in dangerous drugs, one count of conspiracy to manufacture dangerous drugs and one count of trafficking in dangerous drugs.

There was a dispute as to his involvement in these offences. A Newton enquiry was commenced. In the middle of the enquiry the prosecution was prepared to accept the version alleged by the defendant. So, the defendant will be sentenced on the basis of facts as admitted and agreed by him.

It is accepted that the defendant, two Crown witnesses and some other unknown persons were involved in these conspiracies to manufacture and traffic in a dangerous drug and these took place between September 1994 and 7 November 1994 The premises at Sheung Shui, Trade Plaza, were rented for that sort of activity. A large quantity of paraphernalia and the drugs were found in the premises on 8 November 1994. That forms the basis of the third charge.

The police also found 12 blocks of dangerous drugs in the premises weighing 4.6 kilogrammes of a mixture containing 1.2 kilogrammes of narcotics. The defendant admitted that through the period between September 1994 and 7th November 1994 he had participated on four to five occasions and that on each occasion the quantity involved was similar to those seized by the police on 8th November.

In other words, on his own admission in these conspiracies he had been involved in the manufacture and trafficking of dangerous drugs in the quantity of about 20 kilogrammes of a mixture or, based upon a similar percentage of purity, about five to six kilogrammes of narcotics.

For the offence of conspiracy to trafficking or manufacturing dangerous drugs, the quantity of drugs found in the manufacturing operation is, of course, an important factor to be considered. That, however, is not the only factor. In the case of Cheung Wai-keung where the quantity of drugs was unknown, because of a cleaning operation at the premises, a term of 21 years after trial was upheld.

The sentence for this type of offence would depend on factors such as the scale of the operation; the capacity of the equipment found; whether the place had been producing or is likely to produce substantial quantities of dangerous drugs; and the role played by the defendant.

For the present purpose, I am prepared to sentence him on the basis that he was not a drug leader or mastermind and was purely a participant on the persuasion of his friends.

Looking at the exhibits seized in the rented premises, it is, however, clear beyond doubt that it was a very large manufacturing station..........

Apart from the large quantity of drugs which was, as I have mentioned, found on the premises, there was a hydraulic jack, there were metal moulds, there was electronic balance and sealing machines, there were altogether 40 blenders, 20 used and 20 new.

It is also important to notice that there were also some printing silk screens in the premises. They were obviously intended to print logos on heroin blocks. This reflects the size of the operation.

There were also 200 kilogrammes of additives found on the premises. Judging from the purity of the drugs found in the premises and the operation that had gone on earlier, it would seem that such quantity of additives would be fit for production of over 50 kilogrammes of narcotics at least. Looking at all the circumstances, it is a massive manufacturing station indeed.

Bearing in mind all the circumstances of this case, I think the starting point of 30 years' imprisonment would be appropriate in this case.

The defendant is 44 years of age. He received education up to only Primary 6. He was married with a young son at the age of eight. He has an aged mother. He has a previous history of convictions. However, I note that from 1983 to 1995 he was not convicted of any offence. That may be due to luck or some other reasons but I will certainly bear this in mind in his favour. However, he is serving a sentence of 15 years for another drug offence.

The defendant had provided some information to the police about the drug trade and investigation had commenced. It would be early, still early, to decide whether such information would be useful to the police or not.

Bearing in mind all these mitigating factors, including his plea at an early stage, his co-operation and remorse which I accept, I give him full discount for these. In my view the appropriate sentence would be 20 years for the conspiracy charges and 15 years for the trafficking offence.

He is now serving 15 years. That offence clearly is separate and distinct from the present offences. At the age of 44 another 20 years would, clearly, be too heavy for him. It would mean that he would have to spend almost the rest of his life in prison. I hasten to add that for the present type of offences and his previous offence, that may well serve him well. The court owes a duty to society to punish drug offenders with severe sentences and keep them out of action for a long time.

However, taking the totality view of the sentences, even if I order that a substantial part of the present sentences were to run concurrently, it would still mean that when he is released he would be an old man.

Based on all these, I would take an exceptional view of the matter, not that he does not deserve a heavy sentence but that it may not serve a very good purpose if he spends too long in prison. I would, therefore, order that only 13 years of that should run consecutive with his present sentence.

For the record, I, therefore, order that for the first count of conspiracy to trafficking in drugs he is sentenced to 20 years' imprisonment. For the second count of conspiracy to manufacture dangerous drugs he is sentenced to 20 years' imprisonment. For the third count of trafficking in dangerous drugs he is sentenced to 15 years' imprisonment.

All these sentences are to run concurrently but 13 years of these sentences are to run consecutively with the sentence he is now serving. That would mean that he would be sentenced to a total of 28 years."

10. The applicant, who is represented today by Mr. Macrae, urges three grounds. The second we can quickly dispose of. It submits that the discount for plea of one-third was insufficient given the assistance rendered by the applicant to the police. It may be that eventually the information which the applicant has given will become what can be properly described as "fruitful assistance", i.e. assistance which leads to the arrest of offenders, and that its value as mitigation will be enhanced by the applicant's giving evidence against those who have been arrested. Clearly there has been, as matters stand, no such fruitful assistance. If such is forthcoming, then we have no doubt the executive will give cognizance to it.

11. The other two grounds can be dealt with together. The first is that the learned judge's starting point of 30 years' imprisonment was manifestly excessive and that the second is that the learned judge failed to have sufficient regard to the overall totality of sentence bearing in mind, inter alia, the age of the applicant and the fact that he was already serving a substantial sentence of 15 years' imprisonment for a similar offence ("the earlier offence"). We are unable to agree that 30 years' imprisonment was, as a starting point for the three offences, manifestly excessive. We must, however, look at the question of totality. It is true that the judge gave considerable weight to totality when assessing sentence but this can be properly done only if the sentencing court considers the matters as though it was dealing both with the earlier offence and the present offences. Indeed, all of these offences should have been dealt with together. There may have been reasons why this was not done. The failure to do so meant, of course, that totality could play no part in the consideration of sentence when the earlier offence came to be dealt with. When the present offences came to be dealt with the totality for all offences had to be assessed.

12. For the first offence the starting point was 20 years. As we have indicated, the totality for the present offences would have been 30 years. This would produce a totality for all offences of 50 years. This totality would clearly have to be adjusted. When such adjustment is being made, account must be taken of the seriousness of the offences. The first offence was a serious drug offence. The amount involved was more than the amount at the top of the scale set in Lau Tak-ming. The present offences were also very serious offences and were committed by the applicant at the time when he had absconded, having jumped bail given after he was charged with the earlier offence. The totality, we are satisfied, to which the court should have come for all offences was 34 years. This totality has then to be further adjusted for plea. The discount, we are satisfied, given that the applicant absconded, should be less than the conventional one third. We are satisfied that it is proper to give a discount which will result in an overall sentence for all offences of 24 years. To effect this we order that nine rather than thirteen years of the concurrent sentences on the present offences to be consecutive to the sentence on the earlier offence. That will produce an overall sentence of 24 years.

13. The application succeeds. The appeal succeeds. The hearing of the application is treated as the hearing of the appeal and the sentences are adjusted accordingly.

Representation:

Mr. P.S. Chapman, S.A.D.P.P. (D.P.P.) for the Respondent.

Mr. Macrae instructed by Messrs. Chong, Leung & Co. for the Applicant.