HKSAR v. Wong Man Hon and Another

CACC 220/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 220 OF 2005

(ON APPEAL FROM HCCC NO. 274 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Burrell J

Date of Hearing: 15 December 2005

Date of Judgment: 15 December 2005

Date of Reasons for Judgment: 5 January 2006

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R E A S O N S   F O R   J U D G M E N T

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.The applicants (D1 and D2, aged 32 and 35, respectively) were each charged in the 1^st count of an indictment with conspiring together and with Ng Bik-fai, a person known as ‘Sai Jat’ and others unknown, between early February and 11 March 2004, to traffic in cocaine, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap. 134, and section 159A of the Crimes Ordinance, Cap. 200.  On 14 April 2005, (the first day of trial) D1 pleaded guilty before Nguyen J.  Some five days later, on 20 April 2005, D2 also pleaded guilty to the 1^st count but this was amended in her case by the deletion of “cocaine” from the particulars of the offence.  This left an allegation that D2 had conspired with the others to traffic in a dangerous drug.  Her plea of guilty followed the judge’s ruling on the previous day that D2’s interviews were admissible in evidence.

2.On 7 May 2005, D1 received a sentence of 16 years’ imprisonment after the judge had adopted a 24-year starting point and given full credit for his plea.  D2 was sentenced on the same day to 11 years’ imprisonment.  In her case, the starting point which the judge took was 15 years and this was reduced by less than a full third because of her late guilty plea.

3.Each applicant sought leave to appeal against sentence.  At the conclusion of the hearing on 15 December 2005, we dismissed both applications and we now give our reasons for so doing.

The facts

4.The facts of the case were not particularly complicated but it is necessary to go into some detail because they provide the basis on which the judge assessed the appropriate starting point for each applicant and the reason for the difference in the sentences he imposed.  In essence, the prosecution was able to establish that D1 was recruited in February 2004 by a drug trafficking syndicate to import drugs from Bolivia to Hong Kong.   His role was to arrange for a man and a woman to be drugs couriers who would first have to travel from Hong Kong to Bolivia before collecting 3 to 4 kilogrammes of cocaine to bring back to Hong Kong.

5.D1 was told to assess the suitability of Ng Bik-fai (Ng) as a drug courier.  He also telephoned D2 for the same purpose and met Ng and D2 on a number of occasions.  However, when Ng realised that he was being asked to go to South America in connection with dangerous drugs, he reported the matter to the police and gave a detailed account of the intended plan.

6.On 3 March 2004, D1 met Ng, unaware of what Ng had done, and explained that he (Ng) and another person (D2) would be travelling from Hong Kong for the purpose of bringing drugs back to Hong Kong.  Their itinerary would take them to Sao Paulo, Brazil, where they would stay for one night.  After this, they would fly to Santa Cruz, in Bolivia, where a foreigner would pick them up and they would have to stay there for up to 7 days.  The return journey to Hong Kong would be by the same route.  During this meeting, D1 told Ng that when he returned to Hong Kong, he (D1) would give him instructions as to which hotel he should go to in order to meet D1.  Later D2 arrived and D1 introduced her to Ng as the other courier who would travel with him.  D1 then repeated the itinerary to D2 before giving HK$1,000 to Ng for his expenses.

7.Over the next 2 days, 4 and 5 March 2004, Ng and D2 booked return flights from Hong Kong, through Brazil, to Bolivia.  They planned to depart on 10 March 2004 on a trip which was scheduled to take 10 days, returning on 20 March 2004.

8.At a meeting between D1 and Ng at about 7 pm on 5 March 2004, Ng was told that when he and D2 departed from Santa Cruz, a foreigner would give them two suitcases containing dangerous drugs.  They should take these suitcases and leave their own luggage behind.  D1 added that a customs officer at the airport would be bribed so that there would be no check on their luggage.  At 7:30 pm, when D2 arrived, D1 said to her “By then, you should do nothing but to follow ‘Ah Fai’ (Ng)”.

9.On 6 March 2004, D1 again met Ng and D2 when D1 gave HK$38,000 to Ng for the purchase of air tickets and visas.

10.On 7 March 2004, D1 met Ng again and gave him $4,000 for the balance remaining on the air tickets and for clothing to take on the journey.  On this occasion, D1 told Ng that after he had brought the drugs back to Hong Kong, he (Ng) would be staying at a hotel before taking the drugs from Hong Kong to Australia.  D1 said Ng would be given a reward of $100,000, of which $10,000 would be deposited into his daughter’s account on the day of his departure from Hong Kong.  On his return, the balance of $60,000 would be paid to a third person to offset Ng’s gambling debts and the remaining $30,000 would be paid to him.

11.On 8 March 2004, Ng collected the air tickets from the travel agency.  Later that day, D1 met Ng and they went to a foreign exchange outlet.  D1 remitted two sums of US$5,100, each to a South American bank account, using the personal details of Ng.

12.On 10 March 2004, Ng and D2 met in the evening for dinner before going to the airport.  D2 indicated to Ng that D1 had not said anything about what she should do but had just told her to go with Ng to take something back.  D2 asked whether they were going to Brazil.  He told her that they were simply staying one night there and would then go to Bolivia.

13.Later that night, D1 met Ng and D2 at the Hong Kong International Airport.  D1 gave final instructions to them and handed each of them US$1,000 for their expenses.  In addition, he gave US$10,000 to Ng and US$5,000 to D2 for the purchase of the drugs.

14.After Ng and D2 entered the restricted area of the airport, both were arrested.  D2, immediately following her arrest, said only that she had nothing to say.  Later, in a video-recorded interview, she admitted that D1 had told her that she was to travel with Ng as his girlfriend to bring drugs back to Hong Kong and that she had received HK$1,500 as clothing expenses, US$1,000 as money for the trip and US$5,000 towards the cost of the drugs.  She explained that she and Ng were intended to meet a foreigner and that they would bring the drugs back to Hong Kong in a suitcase although D1 had not told her what kind of drugs these would be.

15.D1 was also arrested on 10 March 2004.  He made full admissions about his involvement in the conspiracy to traffic in “3 to 4 kilogrammes of cocaine” from Bolivia to Hong Kong.  His expected reward was about half a kilogramme of cocaine worth between HK$200,000 to HK$300,000. 

16.The street value of cocaine in Hong Kong at that time was about HK$1,000 per gramme.  According to the World Drug Report in 2004 from the United Nations Office on Drugs and Crime, the wholesale price of cocaine in Bolivia in 2002 was US$1,500 per kilogramme.

Sentencing

17.Having outlined the facts of the case along the lines we have given, the judge rightly indicated that the guidelines in R v Lau Tak-ming and Ors [1990] 2 HKLR 370 for sentence in heroin trafficking cases were equally to be applied in cases of cocaine trafficking (see: Attorney General v Pedro Nel Rojas [1994] 1 HKC 342).  In D1’s case, the judge chose to ignore a minor conviction recorded against him.  D2 had no prior police record.

18.D1 was sentenced on the basis of a conspiracy to import 3 or 4 kilogrammes of cocaine into Hong Kong for which he would receive a half kilogramme reward worth between $200,000 and $300,000.  D2, by contrast, did not know the kind of drug to be imported and, in regard to her, the judge said:

“She knew that the envelope given to her contained US$5,000 which she was to give to the man who would give them two suitcases which would contain dangerous drugs.  She must have known that the supplier would be paid by them a substantial amount of money and therefore the arrangement must be for the supplier to supply them with either expensive drugs or a large amount of less expensive drugs.” (Appeal bundle p. 29)

19.The judge also examined the role played by D1 and D2 concluding that whilst D1 was not the “boss” of the organisation behind the conspiracy, he was “more than a courier as he clearly was the recruiter of couriers”.  On this basis the judge took a starting point in D1’s case of 24 years and, as the plea of guilty entered at the start of the trial was the “one mitigating factor”, he was given a full one-third discount.

20.D2’s starting point of 15 years was selected on the basis that “she should not be sentenced on the basis of the cocaine tariff” but she knew she “would be taking part in bringing back to Hong Kong a fairly substantial amount of drugs”.  Normally, as the judge indicated, this would have resulted in a 10-year sentence after plea but he imposed 11 years because of her “late plea”.

D1’s application

21.Mr Surman, on D1’s behalf, submitted that the judge had not taken into account “what may have been the narcotic content” of the cocaine and had erred by giving insufficient weight to the detailed information provided by D1 in his statements to the police.  On the first aspect of this submission, Mr Surman gave illustrations of the less than pure cocaine brought in from South American countries to be found in Pedro Nel Rojas (above) where the purity was about 75 per cent and in R v Garcia [1992] 13 Cr App R (S) where the purity was between 50 to 60 per cent.

22.In reply, Mr David Leung for the respondent submitted that the sums of money which were remitted to a South American bank account together with the sums provided to D1 and D2 in cash gave rise to an inference that a very large quantity of cocaine, well in excess of 3 to 4 kilogrammes, could be purchased, even making allowance for a 100 per cent increase in the 2002 wholesale price in Bolivia by the year 2004.  He also made the point that even if the narcotic content had been half the weight of the cocaine mixture purchased, the amount would still have been in a bracket for which a 24-year starting point was appropriate (see: R v Ho Chi-ming [1995] 2 HKCLR 29).

23.We have no difficulty in accepting Mr Leung’s submissions.  This was a conspiracy which involved a high degree of planning and D1 was well aware that this was so.  On any view, D1 had conspired to import well in excess of 600 grammes of cocaine for which a starting point of 20 years or more was appropriate.  Mr Leung referred us to a number of previous decisions of this court where an international element was involved in the trafficking.  In R v Ho Chi-ming (above), the applicant was found in possession of just over a kilogramme of salts of esters of morphine (heroin) which was intended to be taken to Australia.  In that case, the starting point of 25 years’ imprisonment was approved by this court.

24.Dealing with Mr Surman’s second point, it has been confirmed that D1’s two records of interview failed to provide anything by way of information leading to any further arrests.  In short, therefore, the police gained nothing from the material D1 supplied to them.

D2’s application

25.It was submitted by Mr Percy on D2’s behalf that the 15-year starting point adopted by the judge in the case of D2 was wrong in principle having regard to her limited knowledge of what was involved in the plan and her role as a travelling companion for D1.

26.Mr Percy argued that all D2 had agreed to do was to hand over US$5,000 to a man in Bolivia and, in return, to receive from him a suitcase to take to Hong Kong.  In such circumstances, there was, Mr Percy said, no basis for the judge to have concluded that D2 was aware either that she was bringing back expensive drugs or a large quantity of inexpensive drugs.

27.These submissions were, with respect, somewhat naïve.  D2 was well aware that she was one of two couriers whose purpose in going to Bolivia was to bring dangerous drugs back to Hong Kong.  Such a journey could only be made worthwhile if a sizeable and necessarily valuable quantity of drugs was involved.  To her knowledge, D2 would be exchanging the cash she had been given for a suitcase containing drugs.  She took the chance that the drugs might be cocaine and it is apparent that she had no concern for what type of drugs she brought into Hong Kong.  Although the precise kind of drug to be imported into Hong Kong may not have been spelt out in terms to D2, what was said by Ma CJHC in HKSAR v Yip Wai-yin and Anor [2004] 3 HKC 367 at 374-375 is not without importance in the present context:

“In R v Edward Bilinski (1988) 86 Cr.App.R. 147, it was established that in sentencing for trafficking in dangerous drugs, the Court could take into account as a factor to reduce what otherwise would be the right sentence, the fact that the defendant believed the drugs to be of a less potent type than they actually were. This reasoning has been applied in Hong Kong in a number of cases, among them HKSAR v Li Chi Hung, unreported, CACC 18 of 2002, 15 January 2003, Court of Appeal.

While this is admittedly a factor that is relevant to sentencing, it is in our view important to stress the following :-

(1)     The availability of this factor depends on the Court being provided with evidence supporting the belief on the defendant's part that he was dealing with a different type of drug.  Except where this is accepted by the prosecution, it will be rare that a Court will be satisfied by a bare assertion made in mitigation alone.  The defendant will therefore have to demonstrate his belief on a balance of probabilities, unless this is already clear on the evidence before the Court.  The Court will be required to look at all the circumstances of the case.  For example, the Court may well have to be satisfied of the degree of care exercised by the defendant :- see Bilinski at 149.  Overall, it is important to bear in mind the specific context in which this factor arises, namely, that the defendant is already admittedly a drug trafficker.

(2)     Even where the Court is satisfied, this would only be a factor that goes to a reduction in what otherwise would be the appropriate sentence.  The defendant will not be entitled to be sentenced on the basis, using any appropriate tariff, that the drugs were in fact what he believed them to be :- see HKSAR v Chan Yiu Hong, unreported, CACC 592 of 2002, 18 September 2003, Court of Appeal; R v Gena Ngiam [2002] 1 Cr.App.R.(S) 150 at 152.  In other words, where, for example, a defendant establishes to the satisfaction of the Court that he thought the drugs were Ecstasy when in fact they were Ice, he will not be entitled to be sentenced as though the drugs had been Ecstasy.  He will be sentenced in accordance with the tariff for Ice but given a discount on account of his mistaken (but genuine) belief that the drugs were something else.”

28.On the present facts we are satisfied that the judge was justified in adopting a 15-year starting point having made proper, and perhaps even generous allowance, for the special position in which D2 found herself.

Conclusion

29.For the reasons we have given, the applications made by D1 and D2 were dismissed.

Mr David C Leung, SGC, of the Department of Justice, for the Respondent.

Mr Giles Surman, instructed by Messrs David Y. Y. Fung & Co., assigned by Director of Legal Aid, for the 1^st Applicant (D1).

Mr Duncan Percy, instructed by Messrs Ho & Ip, assigned by Director of Legal Aid, for the 2^nd Applicant (D2).