HKSAR v. Chan Wai Ming, William

CACC 53/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 53 OF 2013

(ON APPEAL FROM HCCC 22 of 2012)

____________

____________

_______________

J U D G M E N T

________________

Hon Macrae J (giving the judgment of the court):

1.On 26 October 2011, the applicant crossed into Hong Kong from the mainland with a quantity of crystalline solid containing 116.52 grammes of methamphetamine hydrochloride.  He subsequently met up with another man at a taxi stand outside the Lok Ma Chau Boundary Control Point.  When police officers approached the two men, the applicant took a plastic bag out of his shoulder bag and threw it into a nearby flowerbed.  It was retrieved by police officers and the two men were taken away for further enquiries and searching; first, to a Customs and Excise office and, subsequently, to the Narcotics Bureau at Police Headquarters.

2.Upon his arrest inside a Customs and Excise office, the applicant made a full admission under caution to the offence of trafficking in a dangerous drug.  He subsequently amplified that admission and gave further details of the offence during a video recorded interview at the Narcotics Bureau.

3.The applicant has a substantial criminal record going back to 1983 involving numerous offences of gambling and possession of a dangerous drug.  However, in 1994 he was also sentenced in the High Court to 5 years’ imprisonment for trafficking in a dangerous drug.

4.On 25 January 2013, upon the applicant’s late plea, Deputy Judge Wright sentenced the applicant to a period of 9 years and three months’ imprisonment.  He achieved that result by adopting a sentence of 10 years and nine months’ imprisonment for the quantity of narcotic concerned and then enhancing that figure by six months for having brought the drugs across the border into Hong Kong, thus arriving at an overall starting point of 11 years and three months’ imprisonment. 

5.From that starting point, the judge reduced the sentence by 2 years for the plea of guilty (which represented a 17.8% discount for plea) making a resultant sentence of 9 years and three months’ imprisonment.  The reason for the reduced discount was that, rather than pleading guilty at the first available opportunity, the applicant had initially pleaded not guilty and contested the admissibility of his admissions in a voir dire.  However, after the judge had ruled the admissions voluntary, the applicant changed his plea to one of guilty.  The voir dire lasted two days and involved the calling of six witnesses (four police officers and two Customs and Excise officers) as well as the applicant himself.  Plainly the judge did not believe the applicant’s evidence and the admissions were ruled to have been made voluntarily.

6.The applicant takes two points in his home-made grounds of appeal.  The first is that, despite his initial decision to contest the case, he should have been accorded a 20 to 25% discount for his late plea. In this regard, Mr Raymond Cheng for the Respondent has helpfully drawn to our attention the case of HKSAR v Leung Cho Yi (unrep) CACC 385/2008 in which Stuart-Moore VP, in another case where a guilty plea had followed a completed voir dire, said at para 9:

“…we consider that in this situation, the discount should usually be in the order of 20% as the plea of guilty will only have been entered after an unsuccessful attempt has been made to exclude the evidence of the confession.” (Emphasis supplied)

7.The situation with which the court was dealing in Leung Cho Yi was slightly different from the circumstances in the present case because the applicant in that case, who was charged with trafficking in both cocaine and ketamine, had only ever admitted in interview to trafficking in ketamine.  After the judge had ruled the applicant’s records of interview to be voluntary, she changed her plea to trafficking in the ketamine component of the charges only and the prosecution dropped the allegation that she was also trafficking in cocaine.  Although it is true that she unsuccessfully contested the admissibility of her confession, the case to which she ultimately pleaded guilty was somewhat different to the case on which she had originally been arraigned.

8.Be that as it may, we do not think it appropriate to specify a hard and fast or particular discount where a defendant has unsuccessfully sought to exclude the evidence of a confession at a voir dire before pleading guilty; and we do not think that the court in Leung Cho Yi was intending to set down a rigid formula for such an eventuality.  Every case is different.  Some voir dires will last no more than a day, others can last more than a week with different implications in respect of public expenditure, as well as court resources in dealing with other trials.  Some arguments as to admissibility engage only the judge’s discretion to exclude where, for example, there has been a technical breach of a rule governing the taking of a cautioned statement: others involve a full-blown attack on the integrity of law enforcement officers.  Some voir dires involve a discrete point of law, the resolution of which is critical to the admissibility of a confession, such as whether an undisputed statement or circumstance can amount to an inducement or oppression: others involve the evaluation of competing facts and issues of credibility.

9.For a number of reasons, the trial judge is in the best position to determine as a matter of sentencing discretion the appropriate discount to be given in a particular case where a plea is entered after an adverse ruling on a voir dire.  He will have a better idea of what was involved in the issue of admissibility and of the significance of the contested evidence in the context of the overall evidence in the case.  We do not think the judge can be criticised for the discount he considered, even though another judge might have accorded the applicant a slightly more generous discount.  These are matters peculiarly within the discretion of the sentencer.

10.The second point taken by the applicant in his grounds of appeal is that the other man arrested with him, whom he described as the “boss” and owner of the drugs, and on whose instructions the applicant claimed to have been acting, was not prosecuted.  Indeed, the judge himself expressed his bafflement at this turn of events.  Nevertheless, however strange this may seem – and the prosecution may have reasoned that they should not proceed against someone who had never been seen in possession of any drugs on the unsupported word of a known drug trafficker - it does not afford the applicant any basis for a reduction of an otherwise proper sentence.

11.Bearing in mind the quantity of methamphetamine hydrochloride concerned and the guidelines appropriate to such quantity, the international element involved in the drugs being introduced over the border into Hong Kong and the entering of a plea of guilty after the applicant had unsuccessfully sought to exclude the evidence of his admissions at a voir dire, we do not think that the ultimate sentence of 9 years and three months’ imprisonment was either manifestly excessive or wrong in principle; particularly when the applicant has a previous conviction for trafficking in the High Court.

12.The application must be refused.

Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

The applicant appeared in person