HKSAR v. NAM KA CHAI

CACC 81/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 81 OF 2016

(ON APPEAL FROM HCCC 228 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  The applicant seeks leave out of time to appeal against the sentence imposed on him by Deputy High Court Judge Woo (“the judge”) on 24 March 2014 following his plea of guilty on the same day to a sole count of trafficking unlawfully in dangerous drug, namely 892.62 grammes of a powder containing 703.54 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant was jointly charged with Lau Kim Mo (D2) and the particulars of the count alleged that they unlawfully trafficked in these dangerous drugs together with Suen Man Lam (“Suen”). The trafficking was said to have taken place on 21 November 2012, at Room 723, Nam Yat House, Nam Shan Estate, Sham Shui Po, Kowloon, in Hong Kong.

3.  The Notice of Application for Leave to Appeal (Form XI) was filed on 17 March 2016, by which time it was more than 1 year and 10 months out of time.  

4.  On 28 November 2016, the applicant filed a notice of motion applying for leave to adduce new evidence of his post-sentence assistance to the police which he set out in his affirmation dated 13 October 2016.

5.  At the hearing of the application we granted the applicant the extension of time he sought, allowed him to adduce the new evidence he wished to place before us, and, treating the hearing of the application for leave as the hearing of the appeal we allowed the appeal, quashed the sentence of the judge and in its place imposed on the applicant a sentence of imprisonment which permitted his immediate release.  We said we would hand down our reasons for doing so at a later date.  These are our reasons.  

The background to the offence

6.  The Summary of Facts which was admitted by the applicant and used for the purpose of his sentencing, revealed that the applicant lived with his mother and stepfather at Room 723, Nam Yat House, Nam Shan Estate.  Both his mother and stepfather left Hong Kong for Mainland China on 5 September 2012 and 13 November 2012 respectively, leaving the applicant alone at home.  The mother and stepfather returned home at about 0200 hours on 21 November 2012, and found seven black plastic bags on the sitting room table.  They became suspicious and telephoned the applicant and told him to return home.

7.  Shortly afterwards the applicant returned and in response to questions from his mother and stepfather he said that his two friends had left the plastic bags there.  His parents asked him to telephone his friends.  One of those friends, D2, eventually came to the applicant’s home.  After further questioning of D2 and the applicant the parents insisted that the applicant call the police.  He did so but D2 left before they arrived. 

8.  When the police arrived they found that the seven plastic bags contained numerous small plastic packets of ketamine.  On the table the police also found two electronic scales.  On the applicant’s bed, in plain sight, were two more transparent plastic packets of ketamine. 

9.  Including the two packets found on the applicant’s bed there were a total of 142 plastic bags which were subsequently confirmed by a Government Chemist to contain a total of 892.62 grammes of a powder which contained 703.54 grammes of ketamine.  As at November 2012 this quantity of ketamine had a street level value of HK$106,221.

10.  The applicant was then arrested and D2 was arrested on 5 December 2012 at his own home. 

11.  In an interview under caution, the applicant stated that:

(a) he had a habit of using ketamine given to him by his friends.  In the afternoon of 20 November 2012, his friend, whose name was Suen, telephoned him.  Suen said that he would go to the applicant’s home to do something.  The applicant understood that Suen was talking about ketamine;

(b) Suen arrived at the applicant’s home with ketamine.  D2 arrived about half an hour later.  D2 and Suen packaged the ketamine into small packets and weighed them.  Each small packet was valued at about HK$1,000.  The applicant assisted them in packaging the ketamine by handing out small plastic bags when they ran out of bags.  No one else was present.

The mitigation

12.  Defence counsel, Mr Boey Chung, informed the court that the applicant was aged 18 at the time of the offence[1] and had a clear record.

13.  He asserted, on behalf the applicant that it was, in fact, the applicant who had called the police.  To this submission the judge responded that the applicant was compelled by circumstances to call the police to support his plea of innocence.  The judge said “this is very clear from the facts, from the statements given by various witnesses.”  Mr Chung submitted to the judge that the parents could have simply flushed the drugs down the toilet but instead they told the applicant to do the right thing.  “And he listened to them.”  In response to this submission the following exchange took place:

“COURT: He did not listen to them. If he had confessed to the parents, they may have done something else. I don’t know. I don’t know, I mean nobody can tell. But at that time he pleaded his innocence.

MR CHUNG: Yes.

COURT: And that’s why he was compelled to call the police. This is clear as daylight. I mean you don’t say the 1^st defendant was repentant and he knew that it was wrong and that’s why he called the police. That could not be the case. Or are you saying otherwise?

MR CHUNG: No, I am not trying to suggest otherwise. Of course I’ve said that this is not a classic surrender case. But, nevertheless, my Lord, I’m trying to impress on your Lordship is that this young man after his parents discussed the matter with him encouraged him to do the right thing.

COURT: I would have thought that a better plea of mitigation would be because the parents were strict and D1 was compelled by the circumstances to report the matter to the police and the court should be lenient to such a family because of the parents, not because of the child.

MR CHUNG: My Lord, of course that will be my part of my submission.

…

COURT: You see and that would much better plea of mitigation.

MR CHUNG: Yes.

COURT: Than saying that D1 was repentant, he called the police, he surrendered himself or sort of surrender himself.

MR CHUNG: Yes.

…

COURT: Because the facts do not support -- you are trying to plead on his behalf that it was - he should be, sort of, granted some leniency because he knew he was wrong, he reported the matter the police. No. He was compelled to report.

MR CHUNG: But after his parents, my Lord, told him to do right thing. I accept that at the very beginning he did not come clean with his parents. But eventually - eventually, when he was interviewed by the police he accepted his responsibility, he made admissions, he cooperated.

COURT: What can be done? Unless he tells a lie against his parents to say, oh they brought in the drugs, not me. Right? I mean one way or the other...

MR CHUNG: Yes.

COURT: ...and he accepts it. Fine. I mean, that’s a little bit credit to himself. He admitted immediately but not in the way of his own responsibility. He said friends came up with these things, they were packing it. I didn’t touch it, I didn’t know, I couldn’t care less. You see, that’s his position at the time.

MR CHUNG: Yes, but subsequently he changed, my Lord.

…

MR CHUNG: It was upon his own initiative he went to the police station subsequently and made the full confession under caution.

COURT: Yes.”

14.  It was also claimed that the applicant had indicated in the 1^st Pre-Trial Review hearing that he would plead guilty and was willing to give evidence against both D2 and Suen, who was then still at large.  His offer to give evidence against Suen was maintained even after D2 pleaded guilty and this, Mr Chung submitted, showed his remorse and the genuineness of his offer of cooperation.

15.  Mr Chung also submitted to the judge letters written by the applicant, his family members and his school teacher.  He also tendered school reports and a medical report showing his mother was suffering from depression. 

16.  Finally, Mr Chung referred the judge to the Court of Appeal’s decision in Secretary for Justice v Hii Siew Cheng[2] which provided a sentencing tariff of 12-14 years’ imprisonment for 600-1,000 grammes of ketamine. Mr Chung informed the judge that for an amount of 703 grammes a purely mathematical calculation would result in a starting point within this range of 12½ years.

The judge’s Reasons for Sentence

17.  The judge referred to the sentencing guideline in Secretary for Justice v Hii Siew Cheng and adopted a starting point of only 12 years’ imprisonment because of the applicant’s youth.  He then reduced this starting point by one-third to allow for the applicant’s guilty plea.  This resulted in a sentence of 8 years’ imprisonment which he further reduced by 3 months in order, he said, “to reflect his clear record, his young age and his family situation.”  The final sentence imposed on the applicant was, therefore, 7 years and 9 months’ imprisonment.

The Perfected Grounds of Appeal

18.  The grounds relied upon by the applicant for his application for leave to appeal against sentence are:

(i) the judge erred in not treating the applicant’s reporting of the matter to the police as a mitigating factor equivalent to a voluntary surrender to the police and it is a significant mitigating factor for which a discount should have been given;

(ii) the applicant has provided post-sentence assistance to the police.

19.  To support these grounds of appeal, the applicant sought leave to adduce his affirmation to which he exhibited a number of exhibits including, inter alia,materials from the respondent.  Amongst the materials are:

(i) the non-prejudicial statements of the applicant; 

(ii) a letter by counsel in the Department of Justice dated 5 April 2016 confirming that it was the applicant who phoned the police via “999”;

(iii) witness statements by the stepfather and mother of the applicant;

(iv) a statement by WPC 13261 which showed that it was the applicant who reported the matter to the police; and

(v) a letter by counsel in Department of Justice dated 7 July 2016 confirming that the applicant had provided three non-prejudicial statements against Suen and had positively identified Suen in an identification parade. 

20.  In his affirmation the applicant stated that he was not given any discount for his compliance with his parents’ request to report to the police and had it not been his reporting of the matter, the case would not have come to light. 

21.  He also stated that in addition to giving three non-prejudicial statements against Suen and positively identifying Suen on 17 October 2014 in an ID parade, he also agreed to testify against Suen and was listed as a prosecution witness in Suen’s trial.  However, he was informed one day before trial that Suen would plead guilty and when this in fact took place on 16 December 2015 he was not required to testify for the prosecution.  

The application for an extension of time

22.  The applicant stated in his affirmation, dated 16 March 2016, that he made the application out of time:

“… because it’s only after I have been serving my terms of imprisonment for over a year that a (person) involved in the same case was arrested. He was sentenced just recently.”

Here, he was referring to Suen who had only recently been arrested and sentenced, after pleading guilty, in HCCC 97/2015.

23.  Ms Catherine Ko, Senior Assistant Director of Public Prosecutions, for the respondent, acknowledged the post-sentence assistance provided by the applicant in the prosecution of Suen.  Consequently, she did not object to the application for an extension of time in which to apply for leave to appeal against sentence.  In the circumstances we were persuaded that the applicant had satisfactorily explained the delay in appealing his sentence and that it was in the interests of justice to grant the applicant the extension of time he sought.  

The application to adduce fresh evidence on appeal 

24.  Ms Ko acknowledged on behalf of the respondent that the applicant had provided assistance to the authorities in HCCC 97/2015 as stated by the applicantin his affirmation.  In these circumstances we were satisfied that it was in the interests of justice to receive this new evidence on appeal. 

The applicant’s submissions

25.  Regarding Ground 1, counsel for the applicant, Ms Annie Lai, submitted that the applicant’s act of reporting his crime to the police was an act equivalent, or similar to, an act of surrendering to the police, and it was a significant mitigating factor for which a discount of 6 months should have been given. 

26.  Regarding Ground 2, Ms Lai highlighted the assistance given to the authorities by the applicant, including his indication that he was willing to act as a prosecution witness against D2 in the 1^st PTR and his eventual active assistance to the prosecution in Suen’s case.  Ms Lai submitted that the applicant’s “persistent assistance requires full acknowledgement”.

27.  Ms Lai accepted that the normal discount awarded to offenders who offer assistance to the authorities, including agreeing to testify as a prosecution witness but who are not in fact required to testify because, for example, the person against whom they were going to testify pleads guilty, is in the range of 40-45%.  However, she said there were occasions where the courts had awarded a higher discount such as 50%.  In this respect she relied upon the judgment of the Court of Appeal in HKSAR v Tso Kin Hong.[3] A reading of this case confirms that the person assisting the prosecution was not ultimately called upon to testify and that he was awarded a 50% discount.  But, it is equally clear from the judgment that he was given this enhanced discount because, as a result of the assistance he had rendered, he had exposed himself to the risk of retaliation and had to be transferred to the security section of Siu Lam Security Centre for his own protection.

28.  Ms Lai then submitted that by his assistance this applicant had also exposed himself to the risk of harm and would have to live the rest of his life in fear of that risk eventuating.  

29.  For these reasons she submitted that the applicant should be given a discount in the region of 50%-55% for the persistent assistance offered.

The respondent’s submissions

30.  It was accepted by Ms Ko that it was primarily because of the applicant’s assistance and his willingness to testify against Suen that Suen pleaded guilty.  There was other evidence against Suen but there was no doubt that the applicant’s testimony would be a key part of the prosecution case.  Furthermore, the prosecution accepted that Suen was the main culprit in the case.  It was also accepted that the applicant had indicated his willingness to give a non‑prejudicial statement implicating D2 and to give evidence against him if the need had arisen, but that was rendered unnecessary because D2, in due course, pleaded guilty. 

31.  However, Ms Ko submitted that there was no suggestion that the applicant by virtue of his assistance had exposed himself to the risk of harm; and so he could not be said to fall into the category of a “supergrass” and to be entitled to a discount in the region of 50%-55% in accordance with the Court of Appeal’s judgment in Z v HKSAR[4].

32.  It was submitted that the appropriate discount would be around 45% as in the cases HKSAR v Herrera Jhorman[5] and HKSAR v Yau Kwok Yin[6].

33.  Concerning Ground 1, Ms Ko referred to the chronology of events attached to her submissions and submitted that the judge’s view that the applicant was compelled by the circumstances to report to the police was correct.

Discussion

34.  We shall deal with the second ground of appeal first.  The assistance rendered by the applicant commenced from the time he was interviewed on 6 December 2012 and continued up to the time Suen pleaded guilty.  His assistance led to a person, Suen, being successfully prosecuted without the need for a contested trial. Suen’s guilty plea, we have no doubt, was due largely to the fact that the applicant was able and willing to give strong, incriminating evidence against him.  Given that Suen’s plea saved the cost of a trial and that Suen was the main culprit in the drug trafficking activity the assistance rendered by the applicant cannot be undervalued.

35.  The law relating to discounts for assistance to the authorities is well settled.  For assistance falling short of testifying in court and which does not expose the person providing it to the risk of harm the range of discount is 40-45%.  Ms Ko fairly accepts that the applicant’s assistance is worthy of a discount at the upper limit of this range and the only question is whether the applicant is entitled to any discount greater than this.  Ms Lai’s claim to a greater discount is based upon the potential risk of harm that she claims the applicant faces.

36.  The applicant and his co-accused were all young, fairly low level traffickers of ketamine. There is no suggestion that any one of them is of a violent, aggressive temperament or has triad connections which might provide him with the means to exact revenge.  No evidence has been placed before us of threats having been made, of the applicant currently living in fear or of the applicant requesting special security measures for himself in prison.  We are not satisfied that, on the material before us, it can be said that the applicant, by his cooperation with the police and his assistance to the prosecution, has exposed himself to a realistic risk of harm.  

37.  For his assistance to the police and the prosecution we award him a discount of 45% from a starting point of 12 years’ imprisonment. 

38.  This produces a sentence of 6 years 7 months’ imprisonment.  The only question that now arises is whether any further discount should be given in respect of the first ground of appeal.  The judge, effectively, allowed the applicant a three months’ discount to reflect what he called “his family situation”.  It is apparent from the interchange between the judge and Mr Chung that the judge gave credit to the parents for the making of the report to the police and not to the applicant.  The first ground of appeal raises the question of whether he was right to do so.  In answering this question it is helpful to have regard to a chronology of the events occurring from the time of the discovery of the drugs by the parents.  They are as follows:

Date	Event
21 November 2012	The applicant reported the case to the police but denied any knowledge of the drugs when he made the report.
22 November 2012	The applicant refused to answer questions during a video record of interview.
5 December 2012	D2 was arrested.
6 December 2012	In the morning D2 made admissions in a video record of interview. In the afternoon the applicant made admissions in a video record of interview.
23 January 2014	1st Pre-Trial Review.  The applicant indicated he would plead guilty.  D2 was unrepresented.
3 March 2014	2nd Pre-Trial Review.  D2 indicated that he would plead guilty.

39.  In his first non-prejudicial statement the applicant described how events unfolded once D2, Lau Kim Mo, arrived at his home.  He said:

“ My mother asked LAU Kim-mo what those things were. LAU Kim-mo said he did not know. LAU Kim-mo said those things were not his. My mother suggested reporting to the police, and LAU Kim-mo said we should ask who owned those things and suggested disposing of (deletion) those things. At that time, I was scared at that time, and therefore did not speak out the truth. At last, my mother told me to report to the police, and said that she would do it if I did not do it. So I reported to the police by phone. I told the police report centre that there were a few bags of unknown stuff in my home. After I had reported to the police, LAU Kim-mo whispered to me and told me not to inform against him but just make up whatever name I chose. Afterwards, LAU Kim-mo left by himself.

After a while, the police arrived at my home, and asked me whose bags of stuff they were.  I was scared at the time, so I made up a false name and said that they belonged to a CHEUNG Yiu-wai (transliteration).  And LAU Kim-mo told me not to inform against him.  I also said that SUEN Man-lam had something to do with those bags.”

40.  The statements of the stepfather and mother also confirm that it was due to their insistence that the applicant called the police.

41.  There is no doubt that it was the applicant who called the police and that he was calling the police in order to report a crime not yet known to the police.  However, it is equally clear that he was not calling the police to reveal his participation in this crime.  As far as he and his parents were concerned he was reporting a crime that took place in his home with which he was associated, because it was committed by persons he let into his home, but in which he was not involved otherwise.

42.  Because he was never intending to reveal his participation in the crime at the time he reported it to the police, his act of making the report cannot be a mitigating factor.  It is certainly not a voluntary surrender to the police or anything similar to it.  The applicant was simply making a report to the police of his discovery of a crime, albeit one in respect of which he had some knowledge.  There is nothing wrong in the way the judge analysed the facts and there is no basis for affording the applicant any additional discount for his action in phoning the police.

43.  However, the judge in his discretion, allowed the applicant a discount of 3 months and we are not minded to deprive him of that.  This would result in a final sentence of 6 years 4 months’ imprisonment.

44.  After consulting with officers of the Correctional Services Department we were informed that the applicant’s earliest date of release for such a sentence, given that he would be awarded by the Commissioner a one‑third discount for good behaviour whilst in prison, would have been 26 February 2017.  That being the case the appropriate sentence of imprisonment that this court should now impose on the applicant is one which permits his immediate release. 

Conclusion

45.  For these reasons we granted the applicant the extension of time sought in which to apply for leave to appeal against sentence and treating the hearing of this application for leave as the hearing of the appeal, we allowed the appeal, set aside the sentence of the judge and, in its place, imposed on the applicant a sentence of imprisonment that permitted for his immediate release.