HKSAR v. AU CHUN WAH

CACC 62/2024, [2024] HKCA 1136 On Appeal From [2024] HKCFI 871 in the high court of the hong kong special administrative region court of appeal criminal appeal no 62 of 2024 (on appeal from hccc NO 124 of 2023)

BETWEEN

HKSAR Respondent and Au Chun Wah (歐俊華) Applicant Before: Hon Macrae VP in Court Date of Hearing: 6 December 2024 Date of Judgment: 6 December 2024

J U D G M E N T The applicant faced two charges, namely, manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (subsequently Count 1); and trafficking in dangerous drugs, namely 296.6 grammes of a solid containing 197.8 grammes of cocaine, 14.6 grammes of a crystalline solid containing 14.1 grammes of methamphetamine hydrochloride, 2.01 kilogrammes of wooden fragment containing 0.46 gramme of methamphetamine and 795 grammes of plastic fragments containing 0.5 gramme of methamphetamine, contrary to section ‍4(1)(a)and (3) of the same Ordinance (Count 2). He pleaded guilty to both charges before a magistrate and was duly committed to the High Court for sentence. On 6 March 2024, the applicant was sentenced by Barnes J (“the judge”) to 14 years’ imprisonment. On 18 March 2024, the applicant filed a Form XI Notice of Application for Leave to appeal against his sentence. He appears in person in this hearing and simply argues that the sentence is too high. The Summary of Facts On 31 August 2020, police officers, who were conducting an anti-‍narcotics operation, observed a man coming out from a flat in a building in Kwai Chung. The officers intercepted him and gained access to his flat, which consisted of three subdivided rooms. They heard sounds coming from Room 1 of the subdivided unit and accordingly revealed their identity

and requested entry. Upon receiving no response, the police forced their way into the room, where they discovered the applicant. At the time, the applicant was in possession of keys to the room and the flat, HK$1,130 cash and two mobile telephones. Having executed a search warrant, police officers seized from Room 1 the subject matter of Count 2, together with various chemicals and paraphernalia commonly associated with the manufacturing of crack cocaine. The applicant was arrested and admitted under caution that he helped others to “cook” the “coke” and would then pass it to someone else in order to earn money. He also claimed that he possessed some “ice” for his own consumption, using an “ice bottle”. Upon examination of the applicant’s mobile telephones, three videos detailing the manufacturing process of dangerous drugs were retrieved. A further search was conducted in Room 1 on 1 September 2020, where the wooden and plastic fragments containing methamphetamine as particularised were found. The applicant later admitted in a video recorded interview that he had rented Room 1 for 2 years as his residence, and that he had been recruited by a person called “Ka Ho” to process the cocaine for a reward of between HK$3,000 and HK$6,000. He did the processing on about three occasions in August 2020, but was yet to receive his reward. He would collect unprocessed cocaine at a

flowerbed near the building and, after processing, would telephone Ka Ho before placing the product back in the flowerbed. He explained how he boiled and processed the cocaine using the paraphernalia found, and that just before the police arrived he had turned on the electronic pot in order to melt some cocaine. He said he purchased some “ice” for HK$1,500 from a friend for his own consumption. The street values of the drugs seized were: HK$528,162 in respect of the cocaine powder; HK$1,018,640 for the crack cocaine; and HK$9,294 for the methamphetamine hydrochloride. In agreeing to the Summary of Facts, the applicant admitted to manufacturing cocaine and unlawfully trafficking in all of the dangerous drugs seized. Mitigation The applicant was, at the time of sentence, a 55-year-old single man, who lived alone. He was effectively of good character, having a minor conviction for common assault some 40 years ago, for which he was fined $300. He was working as a supervisor in a warehouse at the time of his arrest. It was submitted that the applicant was a “one-man band” who cooked, or cracked, cocaine in his own home, and that both the scale of the operation and the capacity of the equipment was small. It was stressed that the applicant’s role was at the bottom of the hierarchy and that he was akin to a manual worker who simply obeyed instructions. Although mitigation was advanced

that the applicant was a user of methamphetamine hydrochloride himself, it seems to have been accepted by his counsel that this would not affect sentence; presumably because the applicant was not able to claim that a “significant proportion” of the methamphetamine hydrochloride was for his own consumption. Letters from the applicant and his sisters to the judge acknowledged that he had committed the offences out of greed, but that they were out of character and he was extremely remorseful. Reasons for sentence The judge pointed out that manufacturing of dangerous drugs was a much more serious offence than trafficking in dangerous drugs, and that the manufacturing station, whilst not substantial was capable of producing at least 200 ‍grammes (which was the amount seized) of cocaine. She considered that the operation would have continued but for the intervention of the police, and having acknowledged that there was no evidence to suggest the applicant was a mastermind or in a managerial position, the judge adopted a starting point of 15 years’ imprisonment on Count 1. In respect of Count 2, the judge adopted the seven-step approach in HKSAR v Islam S M Majharul, using the cocaine as the base drug to conduct the absurdity test (13 years and 5.8 months), the ratio test (12 years and 3.4 ‍months) and the conversion test (12 years and 7 months); the latter test being the appropriate

one to use. She considered a 12 year and 9 ‍months’ imprisonment starting point appropriate bearing in mind the nature and quantity of dangerous drugs involved and the applicant’s role. After the one-third reduction for guilty plea, resulting in a term of 10 years’ imprisonment in respect of Count 1, and 8 years and 6 ‍months’ imprisonment in respect of Count 2, the judge ordered 4 years of the sentence on Count 2 to run consecutively to the sentence on Count ‍1. The resultant sentence thereby became 14 years’ imprisonment. The respondent’s submission Ms Karinna Lai, on behalf of the respondent, relied on R v Cheung Wai Kwong and Another to submit that the most serious aspect of Count 1 was the fact of manufacturing rather than the quantity seized, and that the starting point should be based on the overall circumstances of the individual case. The judge had properly considered the relevant factors, such as the quantity of dangerous drugs seized, the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or was likely to produce substantial quantities of dangerous drugs, and the role played by the applicant. She submitted that the 15 years’ imprisonment starting point on Count 1 was appropriate. In respect of Count 2, Ms Lai said that the judge had correctly applied the seven-‍step approach and the conversion test and, given

the role played by the applicant, which she described as “a storekeeper of the drugs”, the starting point of 12 years and 9 months’ imprisonment was also appropriate. She submitted that the ordering of 4 years of Count 2 to run consecutively to the sentence of Count 1, resulting in 14 years’ imprisonment, was proper, although she acknowledged before me that the overall notional starting point of 21 years’ imprisonment was “on the high side”. Consideration This case raises the vexed question of what a sentencing court should do when dangerous drugs are found and form the basis of a trafficking charge, but those same drugs are either derived from or associated with a more serious manufacturing operation being carried on in the same place at the same time, which forms the basis of a separate manufacturing charge. This issue has recently been specifically addressed by the Court in HKSAR v Sum Ka Wa at [32]-[35]. In particular, the Court noted, at [32]: “…caution should be exercised lest the imposition of a consecutive sentence, which in itself may be a perfectly acceptable sentence for the individual offence concerned, or a partly consecutive element of that sentence, results in an overall sentence that is too great for the overall criminality of the defendant”. It is true that a much smaller quantity of methamphetamine hydrochloride was also found, which was included in Count 2,

although the judge decided not to treat the fact that two types of dangerous drugs were found as an aggravating factor so as to enhance the starting point for that count. Nevertheless, to what extent “the relatively small amount of ‘ice’ when compared to the quantity of cocaine”, as the judge described it, affects the issue may need to be addressed. In that regard, given the mitigation advanced before the judge, it might be prudent for the applicant or those representing him to ascertain from the prison authorities whether he tested positive for methamphetamines in his body upon remand following his arrest. I have already referred to the fact that an “ice bottle” was found in Room 1, and a photograph taken by a police officer suggests that the bottle had recently been used. For present purposes, I consider it reasonably arguable that the overall sentence of 14 years’ imprisonment, which is indicative of an overall starting point of 21 years’ imprisonment, was manifestly excessive and/or wrong in principle, given the small size of the manufacturing operation, and in light of the Court’s recent comments in Sum Ka Wa. It may also be noted that the applicant is now a 56 year-old man of effectively good character, his previous conviction in 1984 being long “spent” under section 2(1) of the Rehabilitation of Offenders Ordinance, Cap 297. Whilst good character is not generally of any

weight with offences of this nature and gravity, it does support the applicant’s contention, and that of his family members, that this was a recent venture for whatever reason at this stage of his life, which was totally out of character. Accordingly, I give leave to appeal against sentence and further grant the applicant an appeal aid certificate for the purpose of conducting the appeal. (Andrew Macrae) Vice President Ms Karinna Lai SPP (Ag), of the Department of Justice, for the Respondent The Applicant appeared in person