HKSAR v. Tsoi Sin Yee

CACC 27/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 27 OF 2014

(ON APPEAL FROM HCCC NO. 326 OF 2013)

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BETWEEN

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Hon Lunn VP (giving the judgment of the court):

1.The applicant seeks leave to appeal against a sentence of 13 years and 9 months’ imprisonment imposed on her by E. Toh J on 22 January 2014 for unlawfully trafficking in 1.73 kg of methamphetamine hydrochloride (“ice”) on 1 February 2013, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. On arraignment on 7 January 2014, the applicant was convicted by the judge on her own plea of guilty.

THE FACTS

2.The applicant, the 1^st defendant at trial, was indicted, together with Yuen Wai Yui (“the 2^nd defendant”) and Wong Shuk Yu, Kiyo (“3^rd defendant”) with unlawful trafficking in 1.73 kg of ice on 1 February 2013 in the Departure Hall of Hong Kong International Airport.  The indictment contained alternative counts against each of the three defendants, alleging that each of them trafficked unlawfully in the amount of ice found in their personal possession respectively.

3.At about 8 p.m. on 1 February 2013 police officers intercepted the applicant and her co-defendants as they were checking in for a Cathay Pacific flight to Australia and after their boarding passes had been issued.  Having been taken to a Police Report Centre, a search of the applicant’s rucksack revealed the presence of two pairs of jeans, each of which had been altered to accommodate an elongated pouch on the inside of the waistband.  Each pouch was found to contain three plastic bags containing ice.  On being arrested and cautioned the applicant said that she had told her co-defendants to help in taking the dangerous drugs to Australia.

4.In a video record of interview the applicant said that in about October 2012 she had agreed to a proposition put to her by a man to recruit two persons to act as couriers to Australia of either electronic components or dangerous drugs.  For her part, she had recruited her 2 co-defendants.  The applicant purchased three tickets for a guided tour to Australia with monies provided to her and furnished information about the waist size of the three of them.

5.As requested, on 31 January 2013 the three of them travelled to Dongguan where they were provided with three pairs of trousers, altered to provide elongated pouches on the inside of the waistband.  The applicant noted that there was a granular substance contained in those pouches. The three of them travelled from the Mainland and entered Hong Kong at the Shenzhen Bay Crossing at about 5 p.m. on the afternoon of 1 February 2013. The applicant wore the pair of trousers with which she had been provided.  Having arrived in Hong Kong the applicant placed those trousers in her rucksack, as she did those provided to the 3^rd defendant.  The applicant accepted that she had trafficked unlawfully in the total quantity of ice contained in the pouches attached to the three pairs of trousers.

6.The applicant accepted that she had been offered, but had not received, a reward of $30,000 for her role in the unlawful trafficking of the dangerous drugs.  For their part, the 2^nd and 3^rd applicants were to be paid $10,000 each.

Reasons for sentence

7.In her reasons for sentence, the judge noted that the applicant was 23 years of age and possessed a “clear record”.  Also, the judge observed that the applicant had:[1]

“ ..made a full confession and had offered a non-prejudicial statement prior to the first day of trial and, prior to the change of plea of the 3^rd defendant, (and) she had already been given immunity to testify against the 3^rd defendant.”

The role of the applicant

8.Of the role of the applicant, the judge said:[2]

“ In this case, the 1^st defendant’s role is the more serious of all the three defendants. She set out to recruit the 2^nd and 3^rd defendants; and not only that, she lured the 3^rd defendant into the offence by, initially telling her that it was a job to help her do business in Australia.

Not only was she the recruiter, she was the main person of contact between the drug supplier and these two other defendants. She not only intended for them to bring the drugs, from China into Hong Kong but also to take the drugs from Hong Kong to Australia.”

9.Having adverted to the guidelines for sentencing for unlawful trafficking in ice articulated in the judgment of this Court in R v Ching Kwok Hung [3], the judge said that amounts of over 600 grammes called for sentences of over 18 years’ imprisonment.

Starting point

10.The judge stipulated a starting point for sentence of 21 years imprisonment.

Enhancement

11.The judge said that because of the “international element”, which involved the importation of drugs into Hong Kong and their intended exportation to Australia, she enhanced the starting point for sentence by 2 years’ imprisonment.

Discount

12.The judge observed that the applicant “only decided to plead guilty after the 2^nd defendant did” and only after the prosecution had served on her on 14 December 2013, as additional evidence, a non-prejudicial statement made by the 2^nd defendant on 4 December 2013.[4]  The judge said that in that statement, the 2^nd defendant asserted that the applicant had told him that the dangerous drugs were ice.  The judge noted that it was only after those events that the applicant “indicated that she was going to plead guilty and then offered to give a non-prejudicial statement in January this year.  But she still maintained that she only knew it was cannabis was to be taken.” [5]  Nevertheless, the judge said:

“ I therefore have to give some credit to the 1^st defendant in view of this. So I will reduce the sentence by 40 percent. So the sentence of 23 years is reduced by 40 per cent to 13 years and 9 months.”

Grounds of appeal against sentence

13.Mr Bernard Yuen, on behalf of the applicant, submitted that the judge erred in affording the applicant a discount of 40% only from the enhanced starting point of 23 years’ imprisonment.  He contended that the judge ought to have afforded her a discount of 50% to reflect properly, “her assistance to the prosecution, including giving a non-prejudicial statement against a co-accused and her willingness to testify against a co-accused as so required by the prosecution and such assistance resulting in the co-accused pleading guilty.”  Having referred to the judgment of the Court of Final Appeal in Z v HKSAR [6], Mr Yuen invited the Court to have regard to its judgment in HKSAR v Chan Sau Hing & Another [7] to support the proposition that a discount of sentence ought to be afforded to a defendant who was willing to give evidence against a co-defendant.  Also, he drew the Court’s attention to its judgment in HKSAR v Lam Kam Shing [8]. 

A CONSIDERATION OF THE SUBMISSIONS

The Law

14.In the judgment of Li CJ, with whom the other judges agreed, in the Court of Final Appeal in Z v HKSAR the range of discount of sentence applied by the Court of Appeal to defendants who had pleaded guilty and given assistance to the prosecution was addressed:[9]

“The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities.  It has used various percentages of discount for different degrees of assistance.  It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information.  HKSAR v Y [2005] 3 HKC 337 at 340. (Compare its earlier decision in HKSAR v Ng Shek-Yu (CACC 178/2000 unreported, 1 March 2001) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.)  Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one third reduction for pleading guilty).  HKSAR v Lee Yat-Fan (CACC 414/1999 unreported, 30 May 2001).  Where the level of co-operation is such as to place the appellant in the “supergrass” category, a maximum discount of two-thirds has been used.  R v Chan Fu-kui [1986] HKLR 967 at 968, HKSAR v Ng Shek-Yu (at p 3).”

15.In HKSAR v Ng Shek Yu [10] this Court was concerned with an appeal against sentence in which, having pleaded guilty to a charge of conspiracy to traffick unlawfully in heroin, the applicant had implicated his co-conspirator, provided a witness statement and was prepared to give evidence in the latter’s trial.  However, the co-conspirator’s trial was repeatedly adjourned so that, on his own application, the applicant was sentenced without having given evidence at the trial.  This Court determined the discount of sentence afforded to the applicant of 40% to be appropriate.  In order to reflect assistance given to the authorities by the applicant whilst he was in custody, namely reporting to ICAC the fact of an approach which had been made to him not to give truthful evidence against his co-conspirator, this Court reduced the applicant’s sentence so that the overall total discounted sentence was 45%.  That person had been charged with perverting the course of justice and, on his plea of guilty, had been sentenced to 18 months’ imprisonment.

16.In HKSAR v Chan Sau Hing, having pleaded guilty to a charge of conspiracy to defraud, the appellant had given evidence for the prosecution against a co-accused.  However, the judge had refused to afford her any discount in addition to the one-third discount for her plea of guilty, finding her to have been a reluctant witness.  Noting that the respondent accepted that the applicant could be described as ‘up to proof’ of her witness statement and that there was no indication that the appellant had given evidence at variance with the rest of the prosecution case, this Court said that the appellant was entitled to expect a further discount in her sentence and afforded her the same 50% discount afforded to another accomplice who had given evidence for the prosecution.

17.The applicant in HKSAR v Lam Kam Shing sought leave to appeal against sentence out of time for his assistance to the authorities rendered after sentence had been imposed.  The offence of unlawful trafficking in dangerous drugs had been committed on 17 July 2003.  On 16 February 2004, the applicant was sentenced by Deputy High Court Judge M. Poon, as she was then, to 8 years’ imprisonment.  On 5 September 2006, he gave notice of his application for leave to appeal against sentence.

18.Although the judgment was given in Chinese by Tang VP, as he was then, a translation, which the parties have agreed is accurate, has been provided to the Court.  At paragraph 3, it was stated that whilst serving his sentence the applicant “had given evidence against his accomplice resulting in the conviction of his accomplice”.  However, in paragraph 4 it is stated that, “..although the applicant promised to give evidence in court, he did not need to do so in the end because his accomplice pleaded guilty.”  Obviously, there is a contradiction between the two statements.  Perhaps, there was a slip in the use of the term ‘evidence’ in the first place, when what was meant was information in a witness statement.  But, it is not possible to resolve the conundrum.  Nevertheless, the court went on to say “we should concern ourselves with the applicant’s promise of giving evidence, rather than affording a discount less than the usual one the applicant is entitled in view of the guilty plea of the other offender.”  The court went on to reduce the applicant’s sentence so that in the result he was afforded a discount of 50% from the starting point of 12 years’ imprisonment.  Unfortunately, the judgment does not condescend to any description of the relevant facts.  So, it is not known if there were facts peculiar to that case that were relevant to the court taking that approach.

19.We are satisfied that generally a defendant who is not called upon to give evidence in support of the account he has set out in a witness statement is not entitled to the same discount in sentence as a defendant who does testify for the prosecution and is subjected to the scrutiny of cross-examination.  In that context, the judgment of this Court in HKSAR v Herrera Jhorman [11], to which Mr Andrew Li, for the respondent, referred the Court is relevant.  There, this Court described a discount of slightly more than 40% as appropriate when afforded to an applicant who had pleaded guilty, provided a statement to the authorities and indicated his willingness to give evidence.[12]

20.On arraignment on 7 January 2014 the applicant and the 2^nd defendant pleaded guilty, the former to Count 1. The 2^nd defendant pleaded guilty to Count 3, which alleged that on 1 February 2013 he had trafficked unlawfully in 580 grammes of ice, which had been found in his rucksack.  The 3^rd defendant pleaded not guilty and a voir dire was held over four days.  On 10 January 2013, the judge ruled admissible in evidence before the jury various out-of-court statements made by the 3^rd defendant.  On the next hearing day, 13 January 2014, the 3^rd defendant was re-arraigned and pleaded guilty to a count on a re-amended indictment, which alleged that she unlawfully trafficked in 570 grammes of ice on 1 February 2013.  That was the amount of dangerous drugs found in a pair of trousers, which the 3^rd defendant admitted that she had worn to enter Hong Kong but which had been found in the applicant’s rucksack.

Prosecution additional evidence: a statement of the 2^nd defendant

21.On 30 December 2013, the prosecution served on the applicant and the 3^rd defendant additional evidence, which included a non-prejudicial statement made by the 2^nd defendant, dated 3 December 2013.  In that statement, he described how he had been recruited by the applicant to act as a courier of what the applicant had said would sometimes be electronic components and on other occasions [13] dangerous drugs.  He said that on 10 January 2013, he met the 3^rd defendant in Mongkok by arrangement with the applicant.  They were joined by a male whom he saw handing money to the applicant.  In conversation the 3^rd defendant confirmed that she too had been recruited to act as a courier, for a reward of $10,000.  The three of them went to Kuoni Travel Limited, where arrangements were made for them to join a tour to travel to Australia on 1 February 2013.  There, he saw the 3^rd defendant’s full name on her passport.

22.The 2^nd defendant said that, as arranged by the applicant, the three of them travelled to Dongguan on 31 January 2013.  Having spent the night in a hotel, the following morning a man delivered three pairs of trousers.  The 3^rd defendant complained about the fit of the trousers and he noticed an obvious protrusion from her trousers.  Later, in the 3^rd defendant’s absence, the applicant had told him that the substance visible in the pouch on the inside of the waistband of one pair of trousers was ice.[14]  Then, the three of them travelled in a seven-seater vehicle and, having crossed the border into Hong Kong, alighted at Hong Kong International Airport.  Although the applicant and the 3^rd defendant had worn their trousers on that journey, he carried his pair of trousers in his rucksack.  At the airport the two females changed their trousers and each of them packed their pairs of trousers in their respective rucksacks.  At the check-in counter, they were intercepted by police officers and, after the ice had been found concealed in the trousers in his rucksack he was arrested.

Further prosecution additional evidence: a statement of the applicant

23.On 9 January 2013, the prosecution had served on the 3^rd defendant, as additional evidence, a non-prejudicial statement made by the applicant on 2 January 2013.  The judge was correct to describe the applicant as having asserted in that statement that she believed that the drug in which she and her co-defendants were unlawfully trafficking was cannabis.[15]  The applicant said that that is what she had been told on or about 10 January 2013 by the person who recruited her to go to Australia.  He invited her to recruit two other persons to assist in transporting cannabis.[16]  As a result, she recruited the 2^nd and 3^rd defendants.  She told them that they were to take goods to Australia, either electronic parts or cannabis.  They both agreed.  As requested, she obtained information as to the waist size of the two of them.

24.On the evening of 31 January 2013, the three of them travelled to Dongguan and stayed the night in a hotel.  In the morning, a man delivered three pairs of trousers.  They tried on the trousers.  In the absence of the 3^rd defendant, the 2^nd defendant asked her the nature of the white granular particles that were visible inside the waistline of the trousers given to him.  She told him it was cannabis.

25.The three of them travelled by a seven-seater vehicle across the border into Hong Kong and alighted at Hong Kong International Airport.  She and the 3^rd defendant had worn the trousers provided to them, whereas the 2^nd defendant did not.  He packed the trousers that he had been given into his rucksack.  However, at the airport she and the 3^rd defendant changed into other trousers because the trousers that they had been given were uncomfortable.  The applicant said that she packed those trousers in her rucksack.  Then, they checked in.  As they were doing so they were intercepted by police officers.

Reasons for sentence: 2^nd and 3^rd defendants

26.In sentencing the 2^nd defendant, the judge noted that she did so only in respect of the quantity of ice which had been found concealed in the elongated waistband pouch of the pair of jeans found in his rucksack.  Further, the 2^nd defendant accepted that he had been told by the applicant that the dangerous drugs were ice.  Having stipulated a starting point for sentence of 17½ years’ imprisonment, the judge enhanced that sentence by one year’s imprisonment to reflect the aggravating factor of the international element, namely that the 2^nd applicant intended smuggling the ice out of Hong Kong and into Australia.  In affording the 2^nd defendant a discount of 45% from the resulting sentence of 18½ years’ imprisonment, the judge explained:[17]

“ I do take into account what I have said as to his assistance to the authorities in this case and the fact that it was after his non-prejudicial statement that the 1^st defendant pleaded guilty. There is also his offer of assistance which was accepted by the prosecution to give evidence in the trial against the 3^rd defendant. So I think in view of all this, he merits a reduction in sentence of 45 per cent, thus reducing the sentence to 10 years and 2 months.”

27.Earlier, the judge had said:[18]

“ …the 2^nd defendant offered to give a non-prejudicial statement and an offer of assistance to give evidence in November last year and on 4 December he made a non-prejudicial statement. On December 14, the prosecution filed a notice to admit additional evidence which was the non-prejudicial statement of the 2^nd defendant.”

28.It is to be noted, having regard to the chronology of events described earlier in the judgment, that the judge made some small, but not material, mistakes in her description of the chronology of events.

29.In sentencing the 3^rd defendant, the judge did so in respect of the ice found in the pair of trousers found in the applicant’s rucksack, which the applicant had said in an out-of-court statement under caution was the pair of trousers she had worn to travel from the Mainland into Hong Kong.  Of the 3^rd defendant’s admissions under caution, having noted that she admitted that she had been recruited by the applicant to travel to Australia for a reward of $10,000, the judge said:[19]

“ She said that she travelled with the 1^st and 2^nd defendants to China on 31 January and spent a night in a guesthouse there in Dongguan. Then in the morning they were each given a pair of jeans to try on.

She noticed that sewn into the waist band of the jeans were pouches which contained, she said, “lumps of stuff”. She said that she touched them and found that these pouches were granular and she suspected these were dangerous drugs. She and the 1^st defendant each wore a pair of those jeans for the journey from China to the Hong Kong airport.”

30.Although the judge noted that the 3^rd defendant pleaded guilty only after the conclusion of a voir dire, in which the 3^rd defendant’s various admissions had been ruled admissible, the judge said that the context in which the late change of plea was to be viewed was “the lateness of the decision of the Department of Justice that they intended to call the 1^st and 2^nd defendants”.[20]  Having stipulated a starting point for sentence at 17½ years’ imprisonment, enhanced by one year for the aggravating factor of importation of the ice from the Mainland to Hong Kong, the judge reduced the sentence by one and a half years’ imprisonment on the basis that she accepted, that the 3^rd defendant “did not know the exact nature of the drugs, although she knew it was dangerous drugs.”  Notwithstanding that the plea of guilty came, as the judge described it, “a little late” the judge afforded the 3^rd defendant a discount of one-third from that sentence.  Given that the judge had conducted a voir dire over a period of four days and ruled the material admissible, with respect to the judge, there was no justification in affording the 3^rd defendant the full one-third discount of sentence. [21] The plea of guilty was not timely.

Starting Point

31.Having regard to the judge’s undisputed characterisation of the role of the applicant, in particular in light of her determination that not only was the applicant the “recruiter” of her co-defendants but also that she was “the main person of contact between the drug supplier and these two other defendants” and given the fact that the applicant trafficked unlawfully in no less than 1.73 kg of ice the starting point taken for sentence by the judge of 21 years’ imprisonment was low.

32.As Stuart Moore VP said in the judgment of this Court in HKSAR v Ng Shek Yu, in circumstances where a defendant pleads guilty and where he has provided assistance to the authorities without giving evidence against other offenders, “a discount of sentence between 40 to 45% will usually be appropriate.”  In the instant case, the applicant was not required to give evidence for the prosecution against her fellow drug trafficker. There is no merit in Mr Yuen’s submission that there was “no valid basis for the learned judge to adopt a less than 50% discount”.  At issue, is whether or not the judge was correct to discount the sentence of the applicant at the lower end of the 40 to 45% range.

33.The chronology of events is of relevance.  As the judge noted, the applicant provided a non-prejudicial statement and pleaded guilty only after the prosecution had notified the defence, on 30 December 2013, that they proposed to call the 2^nd defendant to give evidence at the trial.  It is clear from the non-prejudicial statement of the 2^nd defendant that he was to give powerful evidence against not only the applicant but also against the 3^rd defendant. As noted earlier, although the 3^rd defendant pleaded not guilty and the trial against her alone proceeded with a voir dire, her plea of guilty was forthcoming not only after the applicant’s non-prejudicial statement was served on the 3^rd defendant on 9 January 2014 but also after the judge ruled those out-of-court statements admissible.  Furthermore, as the judge noted, in her non-prejudicial statement the applicant was adamant that she believed the dangerous drugs to be cannabis.  That was contrary to the non-prejudicial statement of the 2^nd defendant, who asserted that the applicant had told him in terms that the dangerous drug was ice.  On her plea of guilty, the applicant accepted that she trafficked unlawfully in ice.  Clearly, even in her non-prejudicial statement the applicant was not being completely frank with the authorities.

34.We are satisfied that in all those circumstances a discount of 40% from that taken as a starting point for the sentence of the applicant was entirely appropriate.  The sentence of 13 years and 9 months’ imprisonment imposed on the applicant was not manifestly excessive.

Conclusion

35.Accordingly, the application for leave to appeal against sentence is dismissed.

Mr Andrew Li, SPP, of the Department of Justice, for the respondent

Mr Bernard Yuen instructed by by C. Yu & Co, assigned by Director of Legal Aid, for the applicant

[1] Appeal Bundle, page 18 O-P.

[2] Appeal Bundle, page 19 C-E.

[3] R v Ching Kwok Hung [1991] 2 HKLR 125.

[4] Appeal Bundle, page 19 N-T.

[5] Appeal Bundle, page 19 T - 20 B.

[6] Z v HKSAR (2007) 10 HKCFAR 183.

[7] HKSAR v Chan Sau Hing & Another (CACC 211/2001; unreported, 13 November 2002).

[8] HKSAR v Lam Kam Shing (CACC 370/2006; unreported, 7 June 2007).

[9] Z v HKSAR (2007) 10 HKCFAR at page 194 D-G, paragraph 23.

[10] HKSAR v Ng Shek Yu (CACC 178/2000; unreported, 1 March 2001).

[11] HKSAR v Herrera Jhorman [2013] 1 HKC 119.

[12] HKSAR v Herrera Jhorman, paragraph 21.

[13] Additional Evidence, page 684.

[14] Additional Evidence, page 690.

[15] Additional Evidence, page 761 “As I had not seen any physical dangerous drugs, I all along believed that those were cannabis as mentioned by Ah Man.”

[16] Additional Evidence, page 754.

[17] Appeal Bundle, page 20 C-E.

[18] Appeal Bundle, page 19 P-S.

[19] Appeal Bundle, page 22 Q-T.

[20] Appeal Bundle, page 23 G-I.

[21] HKSAR v Kay Sik Hong, Billy [2014] 1 HKLRD 812; at pages 832-3, paragraphs 52-6.