HKSAR v. HO TAK KUEN

CACC 88/2022, [2024] HKCA 778

On appeal from [2021] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 88 OF 2022

(ON APPEAL FROM HCCC NO 143 OF 2019)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court):

1.  The appellant pleaded guilty to one charge of Trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for trafficking in 786.08 grammes of a solid containing 686 grammes of cocaine and was sentenced to 13 years and 6 months’ imprisonment by Barnes J (“the judge”) on 29 April 2019.

2.  The Appellant applied for leave to appeal against sentence out of time on 21 June 2022. We granted leave for him to appeal against his sentence out of time and we allowed his appeal, set aside the original sentence and replaced by a sentence of 12 years and 6 months. These are the reasons.

Facts admitted by the appellant

3.  The Summary of Facts to which the appellant admitted states that the appellant was intercepted when he walked out of the Apex Horizon situated in Kwai Chung. He told the police officers that he lived at Room 3906 (“the Apartment”) and after the police gained entry to the Apartment, a female (“D2”) was found in Bedroom A. Drugs the subject matter of the present charge were found in Bedroom B in various plastic bags together with other paraphernalia consistent with packaging and trafficking. HK$20,560 was found inside Bedroom B whilst HK$720 was found on the appellant’s person. The market value of the cocaine was HK$1,047,845 at the material time.

4.  The appellant remained silent under caution. Enquires with D2 revealed that she was a licencee who was allowed to stay in the Room by a person by the name of Tam Ka-shing (“Tam”). Tam was the tenant of the Apartment but was not there at the time of the police raid.

The judge’s reasons for sentence

5.  In sentencing the appellant, the judge identified that the cocaine involved here, 686 grammes, falls within the 600 to 1,200 grammes band, with a starting point of 20 to 23 years. She stated that on an arithmetic calculation a starting point of 20 years and 3 months was appropriate. She found that the role of the appellant was not a mere courier as he was clearly involved in weighing and packaging the drugs inside his room. However, there was no evidence that he was the mastermind or was involved in large scale trafficking. She also noted that the appellant had three previous drug-related convictions, all were possession of dangerous drugs. However, she stated that she was not minded to enhance the starting point and went on to give a one-third discount in recognition of his timely plea. The resultant sentence was 13 years and 6 months.

Application for leave to appeal out of time and grounds of appeal

6.  The sole ground of appeal is that as the appellant has provided information leading to the arrest of Tam and has given fruitful evidence resulting in Tam’s conviction, he is entitled to a discount further than the one-third discount he received. It was also contended that the appellant was undeterred by Tam’s offer of $300,000 for not testifying against him; and that he was assaulted by an inmate “Man Chai” before he gave evidence in Tam’s trial. Taking into all these factors, a 55% discount was advocated for on his behalf.

7.  The appellant filed application for leave to appeal out of time on 21 June 2022 after he received the summons to give evidence in Tam’s trial. The respondent does not oppose to the out-of-time application but submits that in view of the quality of the evidence he gave at Tam’s trial and what transpired thereat, the appellant should not be entitled to more than 40% discount.

Discussion

8.  No issue was taken by the appellant as to the starting point adopted by the Judge. The sole ground concerns any further discount that he should be afforded for his assistance to the authorities.

9.  The Court of Final Appeal in Z v HKSAR[1]set out the extent of reduction for a defendant who has pleaded guilty and provided assistance to the authorities:

“23. 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. … 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%. ...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.”

10.  As a matter of public policy, useful assistance to the authorities is recognized as a mitigating factor. As it falls upon this Court to resentence the appellant in the light of the purported assistance that he rendered to the authorities, the following factors are relevant to determine whether the assistance merits a discount:[2]

“13. …

(a) The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

(b) The likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody, and danger to himself and his family after his release from prison.”

11.  It is perhaps worth noting that Tam, who rented the Apartment but was not present during the police raid, was subsequently arrested but released during initial police investigation due to insufficient evidence. Between 12 April 2019 and 26 April 2022, seven non-prejudicial statements (“NPS”) were given by the appellant to the police. The relevant contents of the appellant’s NPS can be summarised as follows:

(i)  Tam and Chow Ue had employed the Appellant for diluting and packaging cocaine in the Apartment and delivering the re-packaged cocaine outside to customers. Chow Ue was responsible for bringing cocaine to the Apartment, the Appellant would then dilute and repack it, and then deliver to customers of Tam and Chow Ue accordingly to their instructions. The Appellant would be paid $500 reward for delivering every 24 grammes of cocaine;

(ii)  Tam and his girlfriend D2 rented the Apartment and the Appellant was allowed to move in for trafficking purpose since January 2018. The three of them lived there since;

(iii)  All cocaine seized from the Apartment on the date in question belonged to Tam and Chow Ue;

(iv)  The cocaine seized from his person on that day also belonged to Tam and Chow Ue and he was on his way to deliver to customers as instructed by Chow Ue.

12.  After the appellant had given the “NPS”, the police re-arrested Tam after further enquiries, Tam was charged with two counts of “trafficking in a dangerous drug” and one count of “conspiracy to trafficking in a dangerous drug”. The respondent conceded that the “NPS” given by the appellant were of practical use.

13.  At the trial of Tam, during examination-in-chief, the appellant only testified that Tam was aware of his trafficking activities. Not only that he did not testify that Tam co-owned the drugs with Chow Ue, when asked about the conversations he had with Tam inside the Apartment, he only said that they had casual conversations about their consumption of drugs. Since that evidence revealed the drug taking habit of Tam, the Judge was of the view that this could be prejudicial against Tam and discharged the jury.

14.  A new jury was empanelled. Before the appellant was called to give evidence a second time, in view of the evidence that the appellant had previously given, the prosecution took the suggestion of the Judge and accepted Tam’s offer of pleading to a count of “occupier permitting premises to be used for unlawful trafficking in dangerous drugs”. Tam had always indicated his willingness to plead to a lesser charge of “tenant permitting premises to be used for unlawful storage of dangerous drugs” but that offer was rejected by the prosecution. These two offences are under the same section of the Dangerous Drugs Ordinance and both attract maximum sentences of 15 years’ imprisonment. Tam was eventually sentenced to 4 years and 8 months, having been given the one-third discount for his guilty plea and on account of totality with another case for which he was already serving a sentence of imprisonment.

15.  There is a clear distinction between a defendant who has provided assistance to the authorities without the need to testify due to some supervening event beyond his control and so was “prevented from fulfilling his promise” [3], for example, a guilty plea by the person who he has incriminated, and a defendant who has not just given information but has proceeded to give truthful and material evidence. The usual discount for the former is 40% and the latter is 50%.

16.  Li CJ in Z v HKSAR stressed the importance of an appellant who has not just given evidence but “had proceeded to give truthful and material evidence”. This was reiterated as “where the defendant does testify, that his evidence was a crucial part of the prosecution case” [4]. In HKSAR v Choi Wing Kuen[5], Stuart-Moore VP stated that a discount more than 50% was justified where an appellant had “persisted in his assistance” and agreed to and indeed testify a second time at a retrial.

17.  We read the transcript of proceedings in order to examine the quality of the appellant’s evidence before the jury was discharged. We did not accept bare submission from the Bar table that the answers that the appellant gave in his examination-in-chief was caused by confusion in the way that the questions were asked. He said that when Chow Ue gave him instructions to pack the drugs, Tam and Hung Ka-woon were present. He was then asked specifically to focus on Tam. He then said that Chow Ue taught him how to dilute, weigh and pack the drugs, and to deliver to customers accordingly. To follow up on his previous answer that Tam was present when Chow Ue gave him instructions, he was asked if Tam said anything or made any gestures. He replied in the negative. He was asked whether in his view, Tam knew about the drugs, he replied that Tam knew as his working with the drugs in the room and the living room would be visible to Tam. However, in one of his “NPS” (LKC-5) he stated that every time Tam learned that Chow Ue had brought drugs back to the Apartment, he would watch Chow and him dilute and package the dangerous drug before distributing it to customers. It is obvious that the appellant attempted to downplay the role of Tam from an active participant to that of a passive one. This “diminution” of Tam’s role permeated throughout the evidence of the appellant. When prosecuting counsel tried to ask whether Tam had any conversation with him when he was cooking the drugs, he said no. When he was further asked whether Tam had any conversation with him when he was packaging the drugs, his answer was “just chit-chat”. He further emphatically denied any other conversations between them in relation to the drugs other than about drug-taking as both of them took drugs, i.e. they were drug addicts. Upon a last attempt by prosecuting counsel to ask if there were any drug-related chitchat concerning his acts inside the flat between him and Tam, the answer was “No”.

18.  Having given a total of seven NPS, the appellant could not have any misunderstanding as to what he was expected to testify about. After all, it was also his allegation that he was assaulted for incriminating, and offered money for not testifying against Tam. We found his evidence clearly demonstrated a deliberate effort to incriminate Chow Ue and exonerate Tam on the trafficking and conspiracy charge.

19.  So, is the position of the appellant the same as a defendant who had given practical assistance and was prepared to give evidence against another defendant but was not required to do so because the other defendant pleaded guilty? We do not think so. Whilst it is true that the appellant was not required to give evidence after a second jury was empanelled, his contribution to the abortion of the first trial cannot be overlooked. The appellant’s evidence was plainly less than forthcoming and honest, and verged on reneging of the promise of assistance. This manipulation of the sentencing process can neutralise or negate the assistance he has offered and should be reflected in the further discount, if any, that he should be given[6]. Resiling from testifying in accordance with his “NPS” is reprehensible conduct and should be discouraged. In the present case, had there not been such reprehensible conduct of the appellant, Tam could have faced a much longer sentence should he be convicted. We are of the view that the practical use of the appellant’s assistance was limited, if not cancelled out, by his subsequent testimony.

20.  The appellant claimed that there was an encounter with Tam during their remand and Tam offered him $300,000 for not testifying. We find that to be a bare allegation unsupported by evidence. Enquiries with the Correctional Services Department revealed that the appellant and Tam were assigned to different day and night accommodations in the Lai Chi Kok Reception Centre and there was no record showing Tam had access to where the appellant was remanded in the period that he claimed. In any event, with the finding that the appellant had reneged on his promise of assistance, the claim of his resistance to temptation falls away completely. Had there been such an offer, his recession at his testimony clearly demonstrated he had succumbed.

21.  As to the allegation of personal risk that the appellant had subjected himself to by his assistance to the authorities and a claim that he was sworn at and assaulted by “Man Chai”, we were informed that the assault took place on 22 May 2022, which was a few months before he was required to give evidence on 18 August 2022. The results of the Correctional Services Department enquiries were that the cause of the assault could not be ascertained. To support a claim of personal risk by giving evidence, we would expect concrete evidence such as a recognition by the Correctional Services Department and the police of the need to transfer an appellant to another unit for his own protection as in the case of HKSAR v Cheung Chi Yuen [7]. This was again something lacking in the present case.

22.  We are not prepared to grant 40% discount. We consider a discount of 38% appropriate in the circumstances of the present case.

Conclusion

23.  We grant leave to appeal out of time and the appeal is allowed to the extent we have explained in our reasons above. With a 38% discount from the starting point adopted by the judge, the resultant sentence is 12 years and 6 months’ imprisonment.