HKSAR v. KWAN WAI-HOU

CACC 396/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 396 OF 2003

(ON APPEAL FROM HCCC NO.172 OF 2003 )

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1. The applicant, Kwan Wai-hou was arrested on 22 February 2003 by two patrolling police officers on a charge of trafficking in 69.56 grammes of a crystalline solid containing 67.56 grammes of "ice".

2. He was brought before a magistrate at the Eastern Magistracy on 27 June 2003 and he pleaded guilty to the charge.

3. On 21 August 2003, the applicant appeared before Lugar-Mawson J in the High Court for sentence. The judge adopted a starting point of "around ten years' imprisonment". He was given a full one-third discount for his guilty plea and was sentenced to six years and six months' imprisonment.

4. The applicant now seeks leave to appeal against sentence.

5. The applicant was born in 1975 and is now 29. He has over ten previous convictions most of which related to dangerous drugs. He was convicted of trafficking in a dangerous drug in 1996 and was sentenced to eight years' imprisonment.

6. With his record, the applicant cannot have any valid complain against the starting point of ten years or the reduced sentence of six years and six months' imprisonment. (See AG v Ching Kwok-hung (1991) 2 HKLR 125)

7. Indeed, the applicant is not making any such complain. However, the applicant suggests that he should be given further discount because of the assistance he gave to the ICAC resulting in the arrest and conviction of another person. He also claimed to have provided useful information to the Special Duty Squad of East Kowloon.

8. He said on an earlier hearing that such matters were not brought to the attention of Lugar-Mawson J on the advise of his then lawyer.

9. It transpired that on 13 December 2002, he made allegation to the ICAC to the effect that he had supplied "ice" to an unidentified police officer surnamed Cheng on two occasions and in return Cheng agreed to give him prior warning for any impending police raids. For fear that he would be subject to further demands, he lodged a complaint to the ICAC.

10. The applicant was then granted immunity and with his assistance, a person was arrested and that person subsequently admitted to have impersonated a police officer in order to obtain free or discounted drugs from the applicant.

11. On 24 January 2003, the arrested person pleaded guilty to two counts of fraud and one count of possession of dangerous drugs and was sentenced to a total of six months' imprisonment.

12. A defendant who provides useful information and renders valuable assistance to the authority in order to secure the conviction of other criminals will generally be awarded with further discount of sentence. In extreme cases, the discount can be as much as 50%.

13. However, the information and assistance rendered by the applicant to the ICAC related to offences other than the one to which he pleaded guilty. Not only was he a willing participant in those other offences; he was trying to defeat the administration of justice as he hoped to have prior warning of police raids against his illicit business.

14. By informing on his accomplice, the applicant was also hoping to continue with his illicit drug trafficking activities free from further harassment.

15. Indeed, the applicant carried on his drug trafficking activity, as the presence offence was committed shortly after the person he informed upon was sentenced.

16. We fail to see how, in such circumstances, the applicant is entitled to be given further discount of sentence. If he were to be rewarded for the information and assistance that he gave to the ICAC, the immunity granted to him would have been more than adequate.

17. The decision not to relate the aforesaid information to Lugar-Mawson J was clearly a considered one.

18. Bearing in mind the applicant's background, it would indeed be quite easy for him to provide useful information to the authorities. However, the information provided to the Special Duty Squad, East Kowloon turned out to be completely useless.

19. We are surprised that the applicant still sees fit to raise these matters as the only ground in support of his application for leave to appeal against what is clearly a proper sentence.

20. The application is completely devoid of any merit and is therefore dismissed.