HKSAR v. Lau Kwok Ching and Another

CACC000489/1999

CACC 489/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 489 OF 1999

(ON APPEAL FROM HCCC 346/1996)

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Coram: Hon Stuart-Moore VP, Mayo VP and Wong JA in Court

Date of Hearing: 25 May 2000

Date of Judgment: 25 May 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicants who are brothers both seek leave to appeal against sentences of imprisonment imposed upon them. Both men are presently serving sentences of 20 years imprisonment in relation to another drug trafficking case.

2. A1 was charged with the first count in the present case. It read:

"First Count (against 1st accused only)

STATEMENT OF OFFENCE

Possession of a dangerous drug for the purpose of unlawful trafficking, contrary to section 7(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

LAU Kwok-ching, on the 24th day of December 1987 at Tin Wan Pier, Aberdeen, in Hong Kong, together with NG Kam-hing, CHOI Shu-kuen and YIP Kwai, had in his possession a dangerous drug, namely 70.774 kilogrammes of a mixture containing 65.029 kilogrammes of salts of esters of morphine and 34.096 kilogrammes of a mixture containing 30.468 kilogrammes of esters of morphine, for the purpose of unlawful trafficking therein."

Both applicants were charged with the second count which was in these terms:

"Second Count (against both accused)

STATEMENT OF OFFENCE

Doing an act or acts tending and intended to pervert the course of public justice, contrary to Common Law.

PARTICULARS OF OFFENCE

LAU Kwok-ching and LAU Kwok-hung, between the 24th day of December, 1987 and September, 1988 in Hong Kong, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that they:-

(a) caused WONG Siu-ling to visit and warn NG Kam-hing and CHOI Shu-kuen who were in police custody, not to reveal to the authorities what they knew concerning the heroin seized at Tin Wan Pier on 24th December, 1987 then being investigated by the Narcotics Bureau;

(b) paid a sum of money to TSANG Chun-wai (at that time a public servant, namely a Senior Inspector of the then Royal Hong Kong Police Force attached to the Narcotics Bureau) in return for TSANG's assistance to LAU Kwok-ching in respect of the Narcotics Bureau's investigation into LAU Kwok-ching's suspected involvement at Tin Wan Pier on 24th December, 1987;

(c) caused WONG Siu-ling to assist LAU Kwok-hung in gaining entry to Stanley Prison on 17th September, 1988 thereby enabling LAU Kwok-hung to visit NG Kam-hing and request NG Kam-hing not to co-operate with the authorities or to implicate LAU Kwok-ching."

3. After what the sentencing Judge Madam Justice Beeson described as myriad applications to delay the proceedings the applicants eventually pleaded guilty to these counts and the Judge sentenced A1 to 27 years imprisonment on the first count and 6 years on the second. She ordered that the sentences should be consecutive and that 10 years on count 1 and the total sentence on count 2 should be served consecutively to the sentence presently being served by A1.

4. She sentenced A2 to 6 years imprisonment on count 2 which she ordered should be served consecutively to the sentence he is serving.

5. The Judge gave full details of the factual background to both these counts. A summary will suffice for present purposes.

6. It will be noted from the particulars of these offences that they were committed in 1987 and 1988.

7. A1 gave instructions to his fellow accused to assist him in taking delivery of a very large consignment of heroin. There was agreement and a reward of $20,000 would be payable. The drugs were being shipped in a vessel which would arrive in the early hours of the morning at Aberdeen. A1 did not travel in the van which was to be used to take delivery. He drove separately in his own motorcar.

8. The police having information available for them set a trap. While the dangerous drugs were being loaded on the van the police officers surprised the men. To cut a long story short they caught Mr Ng who is referred to in the particulars but A1 succeeded in evading the police when driving away in his car.

9. He had reason to believe that the police had particulars of the registration number of his car. This was of relevance to the agreed facts on the second count.

10. Almost immediately after his escape A1 through an intermediary gave instructions to a solicitor's clerk to gain access to Mr Ng to persuade him not to say anything to the police.

11. While the police were interviewing Mr Ng in the afternoon of 24th December 1999 they were interrupted by a barrister and a solicitor's clerk who claimed that they represented Mr Ng and wished to interview him immediately. This request was acceded to. When the police interview was continued Mr Ng declined to answer any of the questions put to him.

12. The second part of the particulars relating to the second count dealing with the attempts made by both applicants to surmount the problem concerning A1's car.

13. At a meeting attended by both applicants and a senior inspector of police there were discussions as to how this problem might be resolved. It was agreed that A1 should himself approach the police and inform them that he had a short time before the relevant date sold his car to someone else and that registration of the transfer had not been effected. A1 did as was agreed and as a result of this he was unconditionally released by the police.

14. A payment of $100,000 was made to the police officer who was subsequently convicted of having under his control pecuniary resources disproportionate to his official emoluments.

15. The third part of the count related to a prison visit made by A2 to Mr Ng at Stanley Prison when he masqueraded as a law clerk. This visit was made to Stanley Prison after Mr Ng had been sentenced to 30 years imprisonment. The object of this exercise being to enable him to have unsupervised access to Mr Ng. During the visit A2 said that Mr Ng "need not worry and that he would look after his family." Apparently Mr Ng interpreted this statement as a warning not to disclose anything or he and his family would suffer untoward consequences. When passing sentence the Judge commented that she regarded both offences to be in the "worst case band".

16. While she was aware that the CHAN Chi-ming guidelines should be adhered to as the first offence charged was committed before 1990 she considered 30 years to be an appropriate starting point. This was the sentence which O'Connor J had imposed upon Mr Ng. She considered that A1's involvement had been more serious than Mr Ng's.

17. She was not prepared to give A1 more than 3 years for his late plea on account of his attempts to put off the evil day and his apparent lack of any remorse.

18. On passing sentence on the second count the Judge said:

"In respect of the 2nd charge, I've considered the basic principles relating to the charge of perverting the course of public justice. In particular, I've considered the principles set out in the case of R v LAM Hon-kwan and MOK Man-kwai, which is a Court of Appeal case 525 [1984], which just sets out the basic principles.

I consider that this is the worst type of case, or it comes into the band of the worst type of case. I've also considered the case of R v TIN Sau-kwong, CA621 [1996], which was reported briefly at [1997] HKLY 338. Here both defendants were prepared to make use of corrupt policemen. They were prepared to infiltrate Correctional Services in a false guise and abuse their procedures.

They were prepared to suborn potential witnesses, and I note that there was continuing pressure on the witnesses until they realised that these defendants were in prison, and they felt able then to go to the ICAC and report the true facts about this particular case. Again, the pleas, as I've stated, do not betoken remorse.

There was a cynical abuse of the court process, and I find that demands now for the benefits of what is a discretionary discount are unjustified. I take as a starting point seven years' imprisonment for this offence. I do discount by one year for the plea, and I order that in the case of the 1st defendant he serve six years consecutive to the sentence on charge 1 and to the sentence he is currently serving."

19. A1's first perfected ground of appeal is that:

"1. The sentences imposed are manifestly excessive in all the circumstances in that:

1.1 The Learned Judge failed to give a proper discount for the plea of guilty.

1.2 The Learned Judge failed to properly consider the totality principle when ordering that counts one and two are consecutive and 10 years of count one and 6 years of count two run consecutive to the current sentence of 20 years."

20. It has to be borne in mind that an enormous quantity of dangerous drugs were involved in the case and that A1's role could in no way be described as being a minor role. Clearly the Judge was fully entitled to regard it in the "worst case band".

21. The Judge did fully consider the totality principle. In doing so she took cognizance of the fact that A1 had committed three very serious offences. Although the total of 36 years imprisonment represents condign punishment we do not consider that it can be said that inevitably the sentences were manifestly excessive.

22. The question of the amount of discount given for the pleas presents rather more difficulty. In this case the Judge has given reasons why she was not prepared to give the usual 1/3 discount. Amongst other things she referred to the myriad applications and the absence of any true remorse. However with respect she appears to have overlooked one of the important reasons for giving a discount. This is the amount of court time which is saved if pleas of guilty are entered. Unless a worthwhile deduction is made to sentences imposed there would be insufficient incentive for defendants to plead guilty to offences. On the first count the amount of deduction was 10%. We do not consider this was sufficient. In our view A1 should have been given 20%. This means that the sentence on the first count should have been 24 years. On the second count the Judge only gave a discount of 1 year. Had a discount of 20% being given the sentence would have been approximately 5 years 6 months. As this involves a matter of principle we consider ourselves to be justified in reducing the sentence on this count by 6 months.

23. The second perfected ground of appeal is that:-

"2. The sentences imposed are wrong in principle in that:-

2.1 The Learned Judge only gave a 'token discount of 3 years' from the maximum on the first charge.

2.2. The Learned Judge wrongly considered the second charge to be the worst kind of case.

2.3 The Learned Judge wrongly took into consideration the way the appellant had conducted his defence in making applications to stay proceedings.

2.4 In basing the sentence the Learned Judge used facts and information which did not appear in the Summary of Facts agreed by prosecution and defence prior to mitigation."

24. We have already dealt with the discount given.

25. As to the matter raised in 2.2 we consider that the Judge was right for the reasons she gave for treating the offence as being one of the worst kind of cases. In this connection it may be helpful to consider the observations made by Lawton LJ at p. 267 of R v Ambler [1976] Crim. LR 266:

"... it is to be borne in mind when Judges are asking themselves whether they should pass the maximum sentence, they should not use their imaginations to conjure up unlikely worst possible kinds of case. What they should consider is the worst type of offence which comes before the court and ask themselves whether the particular case which they are dealing with comes within the broad band of that type."

26. The complaints made in 2.3 and 2.4 related to the discount which was given which we have already dealt with.

27. A2 has one perfected ground of appeal:

"1. The sentences of 6 years to be served consecutively to the sentence of 20 years already being served is manifestly excessive in all the circumstances in that:-

1.1 There was no or no sufficient discount to properly reflect the plea of guilty.

1.2 There was no basis to in this was 'the worst type of case'

1.3 The judge did not properly consider the totality principle when ordering the sentence to run consecutively."

28. So far as 1.1 and 1.2 are concerned the observations we have made in relation to A1's ground of appeal are equally applicable here. The sentence of 6 years should be reduced to a sentence of 51/2 years.

29. There is not however merit in the complaint that the Judge was wrong to order that the sentence should be served consecutively to the sentence he is now serving. This was an entirely separate offence. The length of the sentence was not such as to require the Judge to reduce the total amount of time to be served by A2.

30. In conclusion the application is successful. We treat the application as the appeal and we quash all three sentences imposed. We substitute therefore on count 1 for A1 a sentence of 24 years imprisonment and on count 2 for both applicants we substitute sentences of 5 1/2 years. We would further order that 7 years of sentence on the first count will be consecutive to the sentence A1 is presently serving and 5 1/2 years of sentences served by both applicants will be served consecutively to the sentences they are serving. The end result being A1 will serve 32 1/2 years and A2 will serve 25 1/2 years.

Representation:

Mr P S Chapman, SADPP & Miss Anthea Pang, SGC, of the Department of Justice, for the respondent

Mr Clive Grossman, SC & Mr Ian Polson, instructed by Yuen & Partners, for the applicants