The Queen v. Lau Yau Yuen

CACC000337/1990

BETWEEN

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Coram: Hon. Clough, Power and Macdougall, JJ.A.

Date of hearing: 15 March 1991

Date of judgment: 15 March 1991

Date of handing down of reasons for judgment: 9 April 1991

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REASONS FOR JUDGMENT

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Clough, J.A.:

1. These are our reasons for refusing leave on the 15th March 1991 to the applicant Lau Yau-yuen to appeal against the sentence of 13 years imprisonment passed on him on the 22nd June 1990 by His Honour Judge Leonard, sitting as a Deputy Judge of the High Court, for the offence of conspiracy to traffic in dangerous drugs contrary to sections 4 of the Dangerous Drugs Ordinance (Cap. 134). The applicant pleaded guilty to the offence on the 11th January 1989 at the committal stage of the proceedings and was duly committed to the High Court for sentence pursuant to section 81B of the Magistrates Ordinance (Cap. 227). On the 16th February 1989 he was formally convicted by Deputy Judge Sharwood. At that stage he was co-operating with the police and had offered to give evidence for the Crown against two of his co-conspirators, Chu Tsz-hei and Mo Lee-kuen whose trial was then pending. Accordingly, on the Crown's application, Deputy Judge Sharwood deferred sentencing him until the conclusion of the trial of those two conspirators (and a third alleged conspirator).

2. The facts admitted by the applicant concerning the offence were that between May and July 1988 (the charge to which he pleaded guilty alleged the conspiracy to have subsisted between the month of June and the 22nd October 1988) the applicant had been one of a group of men who had conspired together to obtain and transport approximately 44.029 kg. of No. 4 heroin (the proportion of salts of esters of morphine was 90.07 per cent of the mixture) from Hong Kong to Australia. The applicant had helped to finance the procuring of the drug.

3. Pursuant to this scheme a motorised yacht was brought from the philippines to Hong Kong to be refitted. This was done wholly or substantially at the applicant's expense. On the 4th September 1988 he arranged for the delivery of the dangerous drugs to Middle Road Car Park in Kowloon and thereafter to the yacht's crew at Deepwater Bay from where they were put on board the yacht which was moored at Stanley. On the same day the yacht sailed from Stanley and was intercepted near Po Toi Island by officers of the Narcotics Bureau who found the drugs in the water tanks of the vessel. The applicant was arrested on the 22nd October 1988 after being kept under surveillance.

4. At the time he was sentenced the applicant was 37 years of age. He was married and had two daughters aged respectively 6 and 3 years. Leading counsel, Mr. Corrigan informed the court in the course of mitigation that the applicant had at one time been involved in trading with China in partnership with Mo Lee-kuen, one of his co-conspirators, who had suggested in about the middle of 1987 that the applicant join the conspiracy. At the time the applicant was in financial difficulties and had closed down his business, but he had capital which Mo needed.

5. Mr. Corrigan accepted that there could be no mitigation regarding the applicant's part in the conspiracy. The emphasis by Mr. Corrigan was, rightly, on the applicant's early plea of guilty and assistance to the police. On the 26th October 1988, within four days of his arrest, the applicant had begun to give lengthy statements to the police relating to the part played by him and others involved in the case. He had been prepared to give evidence against two of his co-conspirators (Chu Tsz-hei and Mo Lee-kuen) but his evidence had in the event only been required against Mo because Chu pleaded guilty at the beginning of the trial. However Mr. Corrigan submitted, and counsel for the Crown readily agreed, that the applicant's evidence had been of great value to the Crown.

6. In addition, the applicant gave the police information about a number of robberies, some of them cases where he had himself been involved and other cases of which he had knowledge. He had given the police the identities of a number of major participants in these robberies and he had been prepared, and continued to be prepared, to give evidence against such offenders if and when they were apprehended.

7. In all the circumstances Mr. Corrigan felt unable to ask the court to treat the applicant as being within the "supergrass" category whose degree of assistance and risk incurred should earn a two thirds discount in accordance with the approach adopted in King (1986)82 Cr. App. R.120 and Chan Fu-kui [1986] HKLR 967. However he emphasised not only the value and nature of the assistance given to the police by the applicant but the consequential risk and fear resulting to both him and his family. Mr. Corrigan submitted that the applicant was "deserving of somewhat more than a 50 per cent discount."

8. The judge sentenced the applicant on the basis that the case was of an unusually serious nature outside the tariff laid down in Chan Chi Ming [1979] HKLR 491 for section 7 possession cases, which was the only sentencing guideline case decided before the offence was committed. Being about to sentence two convicted conspirators, namely the applicant and Mo, the judge arrived at a sentencing starting point of 25 years imprisonment on conviction after trial in the light of his assessment of the gravity of the conspiracy offence when committed by a leading conspirator. He observed:

9. Having adopted a starting point of 25 years for a leading conspirator, the judge went on to consider the mitigating factors in the case of the applicant. He said:

10. For the applicant Mr. Plowman contended that the judge erred in adopting a starting point of 25 years because the cases showed that 20 years would have been appropriate at the time the offence was committed. It was also contended that the discount allowed by the judge was insufficient, because under the circumstances at least 50 per cent would have been justified. On this basis it was submitted that 10 years imprisonment would have been a proper sentence.

The starting point

11. In support of his argument that the judge's starting point was too high and should have been 20 years Mr. Plowman cited two conspiracy cases namely Tsui Lai-ying [1987] HKLR 857 and Suen Shek [1988]1 HKLR 524, where sentences of 20 years imprisonment after trial were respectively impliedly approved and upheld by this court on applications for leave to appeal against sentence. Both these cases were concerned with the importation of heroin base and/or No. 4 from Thailand to Hong Kong.

12. In Tsui Lai-ying, decided on the 20th June 1987, no less than 2.8 tons of heroin base with a market value of $700 million had been brought into Hong Kong during an 18 month period pursuant to what the court referred to as a "massive drug conspiracy". A principal conspirator (a woman of 60 years of age) was sentenced to 20 years imprisonment after trial. This court reduced that sentence to 16 years on account of her age. It was implicit that the sentence would have been upheld but for the age factor. Other conspirators playing lesser rules had received lighter sentences.

13. In Suen Shek, decided on the 27th November 1987, 27.45 kg. of No. 4 (equivalent to 235.21 kg. of No. 3) and 5.896 kg. of heroin base (equivalent to 56.972 kg. of No. 3) had been shipped into Hong Kong in cartons marked "fish sauce" pursuant to the conspiracy. A sentence of 20 years imprisonment after trial was held by this court at p.527 H-I to have been not "a day too long" in the case of a principal conspirator who had been the owner of the shipping company which had shipped the drugs.

14. Mr. Plowman also relied on three cases namely Chan Ho-kuen [1988]2 HKLR 334, Chan wai-shing (unreported) (Criminal Appeal No. 557 of 1987) and Lau Lun Fu (unreported) (Criminal Appeal No. 443 of 1987) which, he contended, demonstrated that, at the time of the applicant's offence there was, in effect, a 20 year ceiling for sentences for section 7 offences (possession for the purposes of unlawful trafficking) on conviction after trial. These were all cases in which the possession of very large quantities of drugs, seized in cars or domestic premises and giving rise to the statutory presumptions, had determined the level of the sentences imposed. In each case application had been made to this court for leave to appeal against sentence.

15. In Chan Ho-kuen, decided on the 7th April 1988, the most serious offence related to 181.273 kg. of heroin base seized in a van. The second defendant was sentenced to 15 years imprisonment after trial. At the re-trial he was again convicted, and O'Connor J., who sentenced him to 20 years imprisonment, said that he considered the sentence passed by the trial judge to be "a bit below the appropriate level." The Court of Appeal and the Privy Council declined to interfere with this sentence: see The Queen v. Chan Ho Kuan [1990] 2 HKLR 345 (P.C.) at p.352E.

16. In Chan Wai Shing, decided on the 23rd August 1988, the applicant had been sentenced to 20 years imprisonment for a section 7 offence involving 233.896 kg. of a mixture containing 195.47 kg. of esters of morphine. The sentencing judge had sentenced him on the basis that he was "a big fish in the syndicate and a highly trusted lieutenant". Assuming that the judge must have inferred this from the quantity of drugs found in the applicant's flat, this court held that there was no evidence before him to justify that conclusion. The sentence was therefore reduced to 15 years imprisonment.

17. Lau Lun Fu was decided on the 15th February 1989, after the applicant's offence had been committed, but was evidently relied upon for the dictum of this court, delivered after reference to earlier cases and indicating that, in the case of major participants in section 7 offences involving very large quantities of drugs with high values, an approximate ceiling of 20 years imprisonment would be imposed because in the case of very large quantities of drugs there came a point where no very great distinction could be made between particular possessors.

18. In that case sentences imposing an overall effective sentence of 20 years imprisonment under section 7 in respect of an "enormous quantity" of between 60 kg. and 70 kg. of No. 3 heroin with a street value of $7 million were upheld.

19. As regards the offence of actual trafficking (which incurs the same maximum penalty of life imprisonment, under section 4 of the Ordinance, as does conspiracy to traffick by virtue of section 39) Mr. Plowman relied on A.G. v. Chan Chi Yin (Unreported) (Application for Review No. 21 of 1987) which was decided on the 20th May 1988. In that case both the defendants had been sentenced to concurrent terms of 8 years imprisonment on each of two trafficking counts relating respectively to 8,170.89 grammes and 8,169.04 grammes of No. 4 heroin. The drugs in question had been taken by car to two post offices where they were posted to New York. On review this court expressed the view that, if the defendants had been charged with possession under section 7, sentences in the region of 12 years would have been appropriate. Concurrent terms of 15 years imprisonment were considered to be appropriate to the trafficking counts after trial but this was discounted because it was a review.

20. The first defendant had also been sentenced to 10 years imprisonment for a section 7 offence (unconnected with the acts constituting the trafficking offences) involving the possession of 18,149.46 grammes of No. 4 heroin. On review this court considered that a sentence of 16 years imprisonment would have been appropriate for this offence after trial, but that an effective term of 31 years imprisonment in respect of all the first defendant's offences would have been inordinate. Applying the totality principle an overall sentence of 18 years was considered appropriate to the first defendant's offences which related to a total of about 34.7 kg. of No. 4 heroin.

21. Mr. Plowman also submitted that the view, reflected by this court in Chan Chi Yin (and by Mr. Plowman's own subsequent submissions in Cheng Yeung [1989]2 HKLR 258 at p. 263H), that the criminality of the direct trafficker under section 4 is generally to be regarded as more serious than that of the section 7 offender, had now been overtaken by the later opinion of this court, expressed by Silke, V.-P., in Lau Tak-ming [1990]2 HKLR 370 at p.384 to the effect that no reasonable basis could be found for the legislature's provision of two separate offences under sections 4 and 7. It was for this reason that Lau Tak-ming laid down guidelines for sentencing which drew no distinction between the two offences. On this last submission of Mr. Plowman we say at once that, if and to the extent that it is permissible to depart from the usual Hong Kong practice of having regard only to the level of sentencing at the date of the applicant's offence, then it has to be borne in mind that whilst Lau Tak-ming lays down common guidelines for offences under both sections 4 and 7, it also provides material guidance in other respects.

22. Thus at p.387D it is emphasised that international trade in drugs needs to be actively discouraged (c.f. Chan Kin-mei (Unreported) (Criminal Appeal No. 282 of 1990)). Furthermore the 20 year ceiling for section 7 cases referred to in Lau Lun Fu (and held in Cheng Yeung at p.264I to begin at the cut off figure of 20 kg.) has been lifted. The "narcotic content" tariff laid down as a guideline in Lau Tak-ming ends at 600 grammes and a sentence of 20 years imprisonment. As to higher narcotic contents Silke V-P., observed in that case at p.387E

"Amounts of over 600 grammes fall into the 'very large quantities' category. On a reconsideration of the line taken in Cheng Yeung and in the light of the information now available to us in our judgment, in appropriate cases which fall into that category, we consider that there can be an upward increase in the 'cut off sentence' there suggested bearing in mind that the maximum sentence provided for by the legislation is life."

23. In our judgment the starting point for the sentence adopted by the judge in the present case, whilst undoubtedly high, was appropriate having regard to the circumstances of the particular case, the fact that it involved exportation to a foreign country (a consideration that did not arise in either Lau Lun-fu or Lau Tak-ming) and the degree of culpability of the applicant as a principal conspirator. In adopting this starting point the judge was exercising a discretion conferred upon him in relation to a particular offence committed in particular circumstances by the relevant offenders. The maximum penalty provided by the legislature is life imprisonment. The quantity of the drug and the narcotic content was very substantial. The sophistication of the scheme and the enormous profit it was designed to yield were manifest, as was the damage that its success would have been likely to cause to members of the Australian community. The judge made it abundantly clear that these were the factors he had in mind when adopting 25 years as the starting point. He emphasised particularly the factor that the drugs were being exported and that Hong Kong owed a duty to other countries not to allow itself to be used for such purposes. We were wholly in agreement with this approach, particularly in relation to principal members of the conspiracy.

24. It seemed to us that there was nothing in the authorities cited to us which inhibited the judge from adopting the starting point that he did. It has been said by this court on a number of occasions, and we take the opportunity to re-iterate, that whilst guideline sentencing decisions of this court are useful and can and should be cited to a sentencing judge when applicable, most decisions of this court are concerned with the determination of the appropriate sentence for the particular offender in the light of the particular facts of the case before it. In this connection this court has adopted the following observations of Dunn L.J. in De Havilland (1983) Cr. App. R. (S) 109 at p.114:-

".... we think it desirable to say a few words about the increasing practice of citing decisions of this Court relating only to sentence. Apart from the statutory maxima and certain other statutory restrictions, for example, those on the sentencing of young offenders, the appropriate sentence is a matter for the discretion of the sentencing judge. It follows that decisions on sentencing are not binding authorities in the sense that decisions of the Court of Appeal on points of substantive law are binding both on this Court and on lower courts. Indeed they could not be, since the circumstances of the offence and of the offender present an almost infinite variety from case to case. As in any branch of the law which depends on judicial discretion, decisions on sentencing are no more than examples of now the Court has dealt with a particular offender in relation to a particular offence. As such they may be useful as an aid to uniformity of sentence for a particular category of crime; but they are not authoritative in the strict sense. Occasionally this Court suggests guidelines for sentences dealing with a particular category of offence or a particular type of offender.... But the sentencer retains his discretion within the guidelines, or even to depart from them if the particular circumstances of the case justify departure. The vast majority of decisions of this Court are concerned with the facts and circumstances of the particular case before it and are directed to the appropriate sentence in that case. Each case depends on its own facts."

25. In A.G. v. Jim Chong-shing [1990]1 HKLR 131 Fuad V.-P. drew attention to the approval of this passage by Hunter J.A. when delivering the judgment of this court in R. v. Wan Ho-hung (Criminal Appeal No. 342 of 1988). In the former case at p.149 Fuad V.P. also cited the latter part of the following comment of Macdougall J.A. on R. v. Morris (The times, 16th December 1987) when delivering the judgment of this court in Cheung Ming-lim [1989] HKLR 415 at p.417:

"Indeed, the Court of Appeal in England observed in the case of R. V. Morris The Times 16th December 1987, of which we do not have a full report, that sentencing does not proceed by way of binding precedent except in relation to technical matters, and that if a case is cited which is not a guideline case, it should not be followed blindly. Their lordships stated that the court did not encourage the practice of reading the facts of one case in which there was a successful appeal and suggesting that that case acted as a precedent, compelling another court to take a similar course in the case to which it bore apparent similarities."

26. At the time of the applicant's offence there was no discernible uniformity of sentence in respect of conspiracy to traffick in very substantial quantities of dangerous drugs, nor was there any guideline authority relating to such an offence. A relatively light starting point of 20 years after trial had been adopted by the sentencing judge in Tsui Lai-ying in the case of a principal conspirator involved in a "massive drug conspiracy". This sentence was reduced by this court on account of the conspirator's age, but we do not regard this case, very serious though it was, as setting a guide line for all cases of conspiracy to traffick in dangerous drugs nor do we regard the quantity of drugs as the sole criterion of culpability. Moreover this case was concerned with the importation, not the exportation of drugs. Suen Shek's case was also an importation case and this court made it clear that it regarded the sentence of 20 years imprisonment passed on a principal conspirator after trial as being not "a day too long".

27. The three section 7 cases cited by Mr. Plowman can be dismissed without difficulty because, as Mr. Saw for the Crown rightly submitted, they are distinguishable on their facts. They were all cases where drugs were seized in vehicles or domestic premises and they had no international characteristics. The sentences were imposed on the basis of possession of very substantial quantities of drugs far in excess of the maximum quantity covered by the tariff laid down in Chan Chi Ming.

28. Chan Chi Yin admittedly had an international flavour in that the trafficking offences were concerned with the posting of an aggregate of about 16.3 kg. of No. 4 heroin to New York, but this was a relatively crude offence the circumstances of which were clearly distinguishable from those pertaining to the applicant's conspiracy.

29. Accordigly we had no difficulty in concluding that under the particular circumstances the starting point of 25 years imprisonment adopted by the judge was appropriate for a leading conspirator involved in the offence in question.

The Discount

30. The applicant's own leading counsel had asked the Judge to allow the applicant "somewhat more than a 50 per cent discount." In the case of the 25 years starting point adopted by the judge and upheld by this court, a 50 per cent discount would be 12 1/2 years. The judge allowed 12 years which he described as "a very substantial discount". In arriving at this discount he gave consideration to all the mitigating factors in favour of the applicant.

31. Mr. Plowman submitted that the applicant was entitled to a discount of at least 50 per cent. He did not elaborate. His principal argument had been directed at the 25 year starting point. In King the English Court of Appeal gave guidelines regarding the range of discount (one half to two thirds) to be allowed to the large scale informer or "supergrass". It was common ground that the applicant was not in that category. It is clear from the comment on Chan Fu-kui made by Power J.A., delivering the judgment of this court in Ng Hon Kit and Ho Chun Keung (Unreported) (Criminal Appeals Nos. 90 and 91 of 1990) that Chan Fu-kui does not lay down a guideline for a 50 per cent discount in cases where the defendant is not a "supergrass" but has pleaded guilty and given assistance to the police in other cases. Power J.A. observed:

"In R. v. CHAN Fu-kui (1986) H.K.L.R. 967, it was indicated that a reduction of 50% was appropriate 'in an ordinary case where the defendant had pleaded guilty and had given assistance to the prosecution in other cases'. Despite the use of the term 'ordinary' we are satisfied that this authority should not be taken to have established any guideline to be generally followed. Every case of this type must depend very much upon its own circumstances."

32. In our judgment the judge in this case cannot be said to have failed to have regard to all the relevant mitigating factors in favour of the applicant and the substantial discount of 12 years which he allowed (amounting to 48 per cent of the starting point of 25 years) was in all the circumstances substantial and appropriate. We declined to interfere with it.

33. We accordingly refused the applicant's application for leave to appeal against sentence.

Representation:

Gary Plowman instructed by M/S Paul Kwong and Co. for Applicant

D.G. Saw, C.C. for Crown