CACC 159/2014








HKSAR Respondent




Before: Hon McWalters JA in Court

Dates of Hearing: 12 August 2014
Date of Judgment: 12 August 2014
Date of Reasons for Judgment: 13 August 2014





1. On 22 April 2014 the applicant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The quantity of drugs in which he admitted trafficking was 35.83 grammes of a solid containing 15.60 grammes of cocaine.

2. On 28 April 2014 the applicant was sentenced by the judge to 3 years and 10 months’ imprisonment. The applicant applies for leaveto appeal his sentence.

The Background to the Offence

3. Information relating to the commission of the offence was contained in a Summary of Facts which the applicant admitted for the purposeof sentencing. That document disclosed that as a result of information they received, police officers conducted an undercover operationinvolving a controlled purchase of drugs from the applicant. They contacted him by telephone by way of SMS messages. In his messagethe applicant offered to sell cocaine to the police officer at $500 per gramme if the cocaine was bought in bulk in the quantityof one “bullet”, which would weigh about 20 grammes and the price per bullet would be $7,990.

4. The police officer agreed to buy two bullets at $17,000 and pay the applicant a commission of $2,800 plus his taxi fare in deliveringthe cocaine to Robinson Road later that evening.

5. When the applicant arrived at Robinson Road that evening, he was arrested by police officers who found the drugs the subject of thecharge hidden in his underpants. The drugs were contained in two packets wrapped in tissue paper. The aggregate street value ofthe drugs seized was estimated to be around HK$39,042.

The Reasons for Sentence

6. The judge directed himself in accordance with the case law relating to the guidelines for trafficking in heroin and cocaine. Henoted that the applicant had a criminal record but no previous convictions for drug offences. His prior convictions were for commonassault in 2006 and a series of offences in 2009 relating to fraud and obtaining property by deception. For these latter offenceshe had received a total sentence 40 months’ imprisonment and it was said on his behalf that when serving this sentence, he hadsuffered from depression.

7. In determining his starting point for sentence the judge noted that the tariff for 10-50 grammes of cocaine narcotic is between 5and 8 years’ imprisonment and using this tariff adopted as his starting point for the 15.60 grammes of narcotic in which the applicanttrafficked, a sentence of 5 years and 6 months’ imprisonment.

8. However, the applicant is a torture claimant and the judge said when such a person commits an offence whilst awaiting the processingof his claim, that can be an aggravating feature for the purpose of sentence if the offence he has committed affects the communityat large and has a significant impact on Hong Kong’s reputation. In so saying he was relying on the Court of Appeal decision inHKSAR v Sandagdorj Altankhuyag & another [2014] 1 HKC 206. He said he was satisfied that trafficking in a dangerous drug is an offence which affects the community at large and the reputationof Hong Kong and, therefore, justified the enhancement of his starting point of 5 years 6 months’ imprisonment. He then increasedthe starting point by 3 months’ to a final starting point for sentence of 5 years and 9 months’ imprisonment. He then discountedthis starting point by one-third to arrive at the sentence of 3 years and 10 months’ imprisonment which he imposed on the applicant.

The Grounds of Appeal

9. In a statement attached to his Form XI the applicant sets out his complaints. They are as follows:

(a) his barrister was not up-to-date with his case and there was prejudice between the judge and the barrister;

(b) this was a case of police entrapment and that should have the affect of reducing his sentence;

(c) the person who gave him up to the police has been released and he feels that he is being used as the scapegoat for the offence;

(d) he is not a drug dealer and this is his first conviction for drug trafficking;

(e) he pleaded guilty at the first opportunity and saved the court’s time;

(f) the judge appears to be biased and this influenced the judge’s sentence in that the judge did not have regard to the intelligencethat was employed by the police that led to contact being made with the applicant;

(g) the judge did not properly deal with the applicant’s mitigation;

(h) the applicant’s past life and suffering from depression which also made him suicidal led him into drug addiction and his associationwith drug dealers; and

(i) the applicant relies upon a decision of this Court in CACC 366 and 487 of 2000.

10. Before me today the applicant supplemented these complaints by referring to the procedural history of his case. After addressingme orally it became clear that his complaints boiled down to the failure by his counsel, contrary to his instructions, to submitthat his culpability for this offence was lessened by the police entrapment. This may have been contributed to by the unfortunatehistory of his case.


11. The starting point the judge adopted was appropriate for this quantity of narcotic but there is an issue relating to his sentencewhich has prompted me to grant leave. It is the question of whether the applicant was entitled to any reduction for what the applicantnow alleges was entrapment.

12. In respect of the entrapment argument I note that no mention is made by the judge of any complaint being made by the applicant’scounsel at the conduct of the police and no attempt was made to mount a stay application based upon entrapment. I can detect nothingin the judge’s analysis of the evidence to indicate he was ever addressed on the issue of entrapment as reducing the culpabilityof the applicant. This lends support to the applicant’s claim that no such submissions on this issue were made by his counsel.

13. The applicant’s complaint, which is essentially one of a denial of a fair hearing through incompetence of counsel, must be placedin the context of the procedural history of this case.

14. He first appeared the District Court on 4 February 2014 and pleaded not guilty and his case was set for trial. He said that it washis then intention to run entrapment as a defence. The legal representation he had on this day was not the same as the legal representationhe had on 22 April 2014. Between February and April Mr Maurice Tracy was appointed by the Director of Legal Aid to represent himand it seems that prior to 22 April he had instructed Mr Tracy that he would plead guilty. However, on 22 April Mr Tracy was illand unable to attend court. Nevertheless, it was decided that the applicant would be arraigned and the Summary of Facts read tohim. The applicant maintained to me that he had not seen the Summary of Facts before this time and had not received any legal advicein respect of it.

15. After this was done the case was adjourned to 28 April but at this time Mr Tracy was still ill and was replaced by Mr Collins. Theapplicant maintains that, contrary to his understanding of what counsel would submit on his behalf, Mr Collins declined to advancea submission that the police entrapment lessened the applicant’s culpability for this offence.

16. The applicant’s complaint, in my view, raises an issue which should be explored further. I, therefore, granted him leave to appealand granted him legal aid. I also made the following directions:

(i) transcript be obtained of the hearings in the District Court on 4 February, 22 April and 28 April 2014 and be included in theappeal bundle;

(ii) the applicant file within 1 month perfected grounds of appeal and an affirmation outlining his complaints in respect of his counsel;and

(iii) affirmations in response be filed by Mr Tracy, Mr Collins and the solicitors representing the applicant.

17. Prior to making these directions I explained to the applicant the concept of legal professional privilege and how it protected theconfidentiality of his conversations with his lawyers and their advice to him. He agreed that in order for the issues he has raisedto be properly explored and addressed he would waive legal professional privilege.

(Ian McWalters)
Justice of Appeal

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The applicant appeared in person