HKSAR v. HERRERA JHORMAN

CACC 440/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 440 OF 2011

(ON APPEAL FROM HCCC NO. 78 of 2011)

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J U D G M E N T

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

1. The applicant sought leave to appeal against the sentence of 12½ years’ imprisonment imposed upon him by Tong J on 14 October 2011, following his conviction on his plea of guilty on 11 October 2011 to an indictment containing two counts in respect of the applicant. By count 1, the applicant was convicted of unlawfully trafficking in a dangerous drug on 17 June 2010, namely 831.45 grammes of cocaine, together with his co-accused Gurung Ganga Parsad, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. By count 2, his conviction was in respect of possession of a dangerous drug on the same date, namely 1.05 grammes of cocaine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

Sentence

2. The judge sentenced the applicant to 12½ years’ imprisonment on count 1 and 6 months’ imprisonment on count 3, which sentences he ordered to be served concurrently.

The Facts

3. In the ‘Brief Facts’, which the applicant accepted as the factual basis for the court accepting his pleas of guilty to the counts, the applicant accepted that he had taken possession of a briefcase in the early afternoon of 17 June 2010, whilst he was seated at a table in Café Landmark in the Landmark in Central.  The briefcase had been placed immediately next to the chair on which the applicant sat in the café by a South Asian male, who then left the café.  For his part, the applicant left the café with the briefcase, which he passed to his co-accused, the 2^nd defendant at trial.  Then, the two men walked together to Duddell Street, where the two of them were about to board a motorcar, the doors of which the 2^nd defendant had unlocked with a remote key.  There, they were intercepted by police officers.  The briefcase was found to contain cocaine, the subject of count 1.  The cocaine was contained in packets, 37 of which were in a modified vest and 18 of which were in a specially made thigh-band.  Both men were arrested for unlawfully trafficking in a dangerous drug.

4. When a suspected small quantity of a dangerous drug was found in a folded banknote under the carpet on the driver’s side of the vehicle, the 2^nd defendant admitted that it belonged to him and said that it was for his own consumption (count 2). Having been taken back to a police station the applicant was searched and three small packets were found hidden in his underpants, containing a substance later analysed to be cocaine.  The applicant admitted that it was for his own consumption (count 3).

Reasons for sentence

5. In his reasons for sentence the judge acknowledged that the applicant was a 38-year-old Columbian national, who had no record of criminal convictions in Hong Kong.

Starting point

6. In respect of count 1, the judge stipulated a starting point for sentence of 21 years’ imprisonment.  In doing so, the judge said that notwithstanding the suspicious circumstances, clearly a reference to the fact that the cocaine in the briefcase was contained in a vest and a thigh-band, having regard to the limited ambit of the conduct of the applicant and his co-accused, he declined to treat the commission of the offence as having an international element, for which an enhancement of sentence would have been appropriate.

7. For counts 2 and 3, the judge stipulated 9 months’ imprisonment as the appropriate starting point for the offences of unlawful possession of the respective small amounts of cocaine.

Discount

8. In respect of the appropriate discount to be afforded to the applicant from the starting point taken for sentence, the judge acknowledged that, in addition to pleading guilty, the applicant had provided the prosecution with a “useful statement” which the prosecution was “prepared to rely on” in the prospective trial of the applicant’s co-accused.  Clearly, it was accepted that the prosecution intended to call the applicant as a witness for the prosecution in the trial of his co-accused.  However, in the event that was unnecessary, given that his co-accused then pleaded guilty to counts 1 and 2 on the indictment.

9. The judge stated that he declined to afford the applicant a discount of 50% from that taken as the starting point, which discount was sought on behalf of the applicant by his counsel, Mr Tolliday-Wright.  In doing so, he said that such a discount was “normally reserved for those whose information led to, say, further arrests and by whose evidence the prosecution can succeed in getting certain convictions.”

10. In determining to afford the applicant a discount of “about 40 percent” from the starting point of 21 years’ imprisonment, the judge said that he regarded the prosecution case against the applicant’s co-accused as “rather strong”, even without the prospective evidence outlined in the statement that the applicant provided to the prosecution.  Nevertheless, he acknowledged  that it did not appear that the applicant’s co-accused was “thinking of a guilty plea” prior to being served with a copy of the applicant’s statement and being given notice that the applicant was to be called as a witness in his trial.  In the result, the judge concluded, “...I believe D1’s (the applicant) statement was helpful in the sense that it caused D2 (the applicant’s co-accused) to pause to rethink about his position.  The result is that much of the court’s time is saved.”

Grounds of appeal against sentence

11. In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Edward T C Chan submitted that the judge had erred in affording the applicant a discount from the starting point for sentence of only 40%.  If the applicant’s co-accused had not pleaded guilty, the applicant would have given evidence as envisaged in his statement and, if that had resulted in a conviction of his co-accused, the applicant would have been entitled to a discount of 50% from that taken for the starting point.  The fact that the prospect of the applicant testifying against him had played a part in the co-accused’s decision to plead guilty ought not to deprive the applicant of the benefit that would have enured to him if he had been called upon to testify and the co-accused had been convicted.  Mr Chan suggested that the applicant was entitled to a discount in the range of 45-50%.

12. Furthermore, issue was taken with the judge’s determination that the case against the applicant’s co-accused was “rather strong”.  On the contrary, it was contended that the high point of the prosecution case was that the co-accused had received the briefcase from the applicant, after which the two of them had made their way to the nearby parked car.  The co-accused had made no admissions.

13. Finally, it was submitted that the judge had erred in failing to have regard to the fact that, as a person who was willing to give evidence against a fellow drug trafficker, the applicant’s safety was at risk, which risk was all the greater because he was a foreigner.  In order to secure his safety, it might be necessary to incarcerate the applicant in a high security facility.

A consideration of the submissions

14. Mr Chan was correct to take no issue with the starting point stipulated by the judge in respect of count 1.  The 831.45 grammes of cocaine, the subject of that count, fell within the band of 600 to 1,200 grammes for which a sentence in the range of 20 to 23 years’ imprisonment is appropriate (see HKSAR v Abdallah [2009] 2 HKLRD 437 at 453, paragraph 41).

15. As Ms Kathie Cheung pointed out, in her helpful written submissions, the judgment of Li CJ, with whom all the other judges agreed, in Z v HKSAR (2007) 10 HKCFAR 183 identified and collated the factors relevant to the discount to be afforded to an accused for his assistance to the authorities (page 190 J-191 D, paragraph 13) :

“ In deciding whether the assistance given by the defendant to the authorities merits a discount in a particular case and if so, its extent, a number of factors should be taken into account. Broadly speaking, the most important factors usually include:

(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.

See generally R v King (1986) 82 Cr App R 120, R v Sivan & Others (1988)87 Cr App R 407, R v Many (1990)51 A Crim R 54.”

16. Later in his judgment, Li CJ made reference with approval to the judgments of this Court identifying the specific appropriate discounts from the starting point taken for sentence to be afforded to an accused for his particular assistance to the authorities (page 194 D-H, paragraphs 23 and 24) :

“ 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 p 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 p 968, HKSAR v Ng Shek-Yu (at p 3). [Italics added.]

In the present case, the relevant figure is the usual discount of about 40% as the appellant had provided useful information but had not given evidence.  Its appropriateness has not been questioned in this appeal.”

17. In HKSAR v Ng Shek Yu (CACC 178/2000; unreported 1 March 2001) the judge stated that he afforded the applicant a 40% discount from the starting point taken for sentence to reflect his plea of guilty, to a single count of conspiracy to traffic unlawfully in heroin, and for his assistance to the authorities in providing a statement against his co-conspirator, in support of which he said he was prepared to give evidence.  However, in the event proceedings against the co-accused were so delayed that, at his request, the court proceeded to sentence the applicant, without his having given evidence.  In face of an application on his behalf, that the 40% discount was inadequate, this Court said in the judgment of Stuart-Moore VP said (page 4) :

“ The question to be answered, however, is whether a discount of 40% for a defendant who was not a supergrass and who had provided assistance to the authorities without giving evidence against other offenders is appropriate. We have no doubt that it was appropriate. We have on previous occasions stated that in similar circumstances to those which happen to prevail in the present case, a discount of between 40 to 45% will usually be appropriate.” [Italics added.]

18. In HKSAR v Y [2005] 3 HKC 337, in the judgment of Stuart-Moore Ag CJHC, this Court rejected the assertion that the 40% discount was afforded to an applicant for offering valuable assistance to the authorities, notwithstanding that he had not pleaded guilty at his trial, but had been found guilty after trial (page 340 C-D, paragraph 9) :

“ It is well established that those who enter a timely plea of guilty will receive a one-third discount and it is this which is topped up to 40% in the case of someone who was given valuable assistance.”

19. As Li CJ observed in Z, the greater discount of 50% is afforded to a defendant who has not only pleaded guilty to the offence for which he was charged but also has “proceeded to give truthful and material evidence” in the trial of another.  In HKSAR v Lee Yat Fan (CACC 414/1999; unreported - 30 May 2001) the applicant was sentenced to 15 years’ imprisonment, having been found guilty after trial on two counts of unlawful trafficking in heroin.  Subsequently, he had provided the police with a statement and then given evidence in the trial of another man on counts of robbery and attempted rape.  That man was convicted after trial.  In the judgment of the court, Stuart-Moore VP said (page 4) :

“ In view of the Applicant’s pleas , which were not deserving of any discount, it would be wrong to give to him now what may be regarded as the usual discount of 50% which is given to those who have pleaded guilty and given truthful and material evidence against others on trial. A discount of 50% assumes an original discount of about 33% for the plea of guilty. The remaining 17% is usually given for providing a statement against some other offender and going into the witness box to testify.”

20. The concerns expressed about the applicant’s safety whilst in custody are not supported by any evidence at all.  They are no more than bare speculation.  Today, Mr Chan declined the invitation of the court of an adjournment, if it was necessary, so that evidence could be filed on behalf of the applicant to substantiate the concerns expressed by counsel.  In any event, were those speculative concerns to have any basis in fact, we have no doubt that the Correctional Services Department would afford the applicant appropriate protection.  There is no merit in this submission.

Conclusion

21. Clearly, given that the applicant did not testify in the trial of his co-accused and give “truthful and material evidence” the applicant was not entitled to a discount of 50% from that taken as the starting point.  The discount of slightly more than 40% afforded to the applicant for his pleas of guilty, the statement that he provided to the authorities and for his willingness to give evidence against his co-accused was entirely appropriate.  Accordingly, the application for leave to appeal against sentence is refused.