Attorney General v. Han Man Fai and Another

CAAR000007/1988

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Coram: Hon. Cons, V.-P., Fuad, V.-P. & Kempster, J.A.

Date of hearing: 14 September 1988

Date of delivery of judgment: 14 September 1988

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. On the 4th May this year Han Man Fai and Cheng Hung pleaded guilty before Hooper J. to one count of trafficking in dangerous drugs and one count of possession of dangerous drugs for the purpose of unlawful trafficking therein.

2. The summary of facts accepted by them as correct indicates that in the early hours of the 15th December 1987, they took a taxi to an obviously pre-arranged rendezvous in Austin Avenue and there handed over almost half a kilo of a mixture containing dangerous drugs to a third party who was arraigned with them as the 3rd Defendant in the court below. That formed the basis for the first count.

3. Unfortunately for them, Customs Officers had been watching the whole time. The Defendants were swiftly arrested and upon one of them were found keys to an address in Kweilin Street. A search there revealed another almost 2 kilos of dangerous drugs in plastic bags of various sizes. That formed the basis for the second count.

4. In addition to the drugs in those premises were found a sealing machine, a balance, bundles of plastic bags and a quantity of caffeine; also a rent receipt in the name of the other Defendant.

5. We understand that both Defendants were later interviewed and they made what counsel has accepted as "full and frank" confessions.

6. In passing sentence the judge said -

"I am taking into consideration your pleas of guilty; your ages, both being in your early twenties; your antecedents; the fact that neither of you have been convicted before in respect of offences involving dangerous drugs. I am taking into account the nature and the quantity of the dangerous drugs concerned which are substantial and are hard drugs; and I am taking into account all that has been said in mitigation by your counsel; and of course the maximum penalties prescribed by law which indicate the seriousness in which the Legislature regards this type of offence."

7. He then referred to the guidelines laid down in Chan Chi Ming⁽¹⁾ and another authority of this Court which indicates that offences of actual trafficking are regarded as being more serious than offences of possession for the purpose of trafficking. The judge continued -

"Although therefore the quantity of dangerous drugs involved in the trafficking charge was less than that involved in the possession for the purpose of trafficking charge, I do not propose to distinguish the two of them for the purpose of sentence in this case. I propose to pass the same sentence on each charge to run concurrently to reflect the overall criminality, but also making allowance for the mitigating factors.

In my view the appropriate starting point in respect of these offences is nine years' imprisonment, but making allowance for your pleas of guilty and your co-operation with the police I sentence you both to six years' imprisonment on each count to run concurrently."

8. With the leave of the Chief Justice, the Attorney General asks us to review the sentences on the ground that in the circumstances they are manifestly inadequate.

9. Mr. Bruce, who appears today for the Attorney, has pursued the application by way of two main submissions. The first is that taking the two offences together, 9 years was too low a starting point. The second is that the discount for pleas of guilty and co-operation with the police was over generous. He accepts that neither of those submissions by itself would be sufficient to warrant the description of manifestly inadequate. But he suggests that in combination they do. He adds a rider that the Attorney has no strong feeling as to the format proper sentences should take, i.e. whether they should be consecutive, concurrent or partly concurrent; it is only with the totality of the sentences that the Attorney is concerned.

10. May we say at once that we agree with the judge's approach of concurrent sentences in this instance. We look upon the two offences as being merely different aspects of the same operation, one which could very properly be described as a wholesale packaging and distribution service of drugs. The approach suggested, albeit in very different circumstances, in the case of Law Wai Ming⁽²⁾ was appropriate.

11. In furtherance of his first submission, Mr. Bruce first drew our attention, not surprisingly, to the case of Chan Chi Ming⁽¹⁾ . Applying simply the guidelines there, sentences for the first count would have been between 5 and 8 years' imprisonment, and for the second count between 8 and 12 years' imprisonment.

12. Then secondly, Mr. Bruce reminded us of the accepted view of this Court that sentences of actual trafficking are more serious than offences of possession for the purpose of unlawful trafficking and should attract heavier sentences. If necessary, authority can be found in Yeung Ying Kan⁽³⁾ and Chow Kwok Ping⁽⁴⁾.

13. Finally, as an example of what this Court has thought appropriate in circumstances similar to the present, although being concerned then with very much larger amounts of drug, he referred to the case of Chan Chi Yin⁽⁵⁾ where 15 years was suggested.

14. The judge, as his later words indicate, made allowance for mitigating factors. Presumably he had in mind the age of the Defendants and the fact that neither had been convicted before of any offence involving dangerous drugs as he had mentioned earlier. Mr. Macrae, who appears today for the Respondents, suggested that criticism of the judge is unjustified, for having given no indication of the extent of the allowance, he probably made very little. If that is so, he would have been following established authority. As to clear records we need only refer to Chan Chi Ming^(l) where Sir Denys Roberts, giving the judgement of the Court, said -

"    We need not elaborate upon the appalling social and family consequences of the abuse of drugs. In our view, those who take part for gain in drug trafficking can expect, and should receive, no mercy from the courts.

Therefore, the fact that the accused has a clear record will do little to reduce his sentence, though assistance to the police and a plea of guilty may."

As to age we take the words of Huggins J., also giving the judgment of the Court, in Lam Hak Hung⁽⁶⁾-

"It has been said time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he has embarked upon the manufacture of dangerous drugs or involved himself in trafficking in dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old - people who may have some ground for pleading for the mercy of the court if they are in fact arrested."

15. The judge below gave a discount of 33 1/3% for the pleas of guilty and co-operation with the police - (by including the latter he was probably only echoing counsel's aggrandizement of the "full and frank confessions").

16. In this respect Mr. Bruce has drawn our attention to Wong Ping Yu⁽⁷⁾ where Sir Denys Roberts, again giving the judgment of the Court, observed -

"It is common for discounts of up to a fifth to be allowed in serious cases if there is a plea on the first morning of trial."

The Court allowed in fact a larger discount because the plea had been given at an earlier stage. In the present instance the pleas were indicated at the pre-trial hearing. Clearly it is desirable that indications at that stage should be encouraged.

17. Mr. Macrae, in his turn, has drawn our attention to Chan Chi Yuen⁽⁸⁾ where McMullin V.-P., giving the opinion of that Court, observed that -

"... it has been a familiar practice in these courts to allow as much as 25% for the plea."

18. We do not wish to be drawn into any mathematical discussion. We would only say that judges do appear to us to give discounts, depending of course upon the circumstances of the individual case, which are generally in the region of 25%.

19. Returning to the circumstances of the present case, in our view the judge's starting point did not sufficiently reflect the very serious nature of the conduct in which the Defendants were engaged. A more appropriate figure for totality for sentence would have been one of 12 years, which could properly have been discounted to 9 years for the pleas of guilty. Comparing that with the sentences actually passed, we are bound to conclude that the sentences were indeed manifestly inadequate.

20. We therefore grant the application; making the usual allowance for the nature of these proceedings we vary the sentences to 8 years on each of the charges, to be served concurrently.

⁽¹⁾ [1979] H.K.L.R. 491

⁽²⁾ C.A. 1001/79

⁽³⁾ C.A. 120/84

⁽⁴⁾ C.A. 528/86

⁽⁵⁾ Application for Review No. 21 of 1987

⁽⁶⁾ C.A. 724/72

⁽⁷⁾ C.A. 16/87

⁽⁸⁾ Application for Review No. 8 of 1983

Representation:

A.A. Bruce (Legal Department) for the Applicant

Andrew Macrae assigned by (D.L.A.) for 1st and 2nd Respondents