HKSAR v. YIU CHUN WA

CACC167/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 167 OF 2011

(ON APPEAL FROM HCCC NO. 65 OF 2011)

____________________

BETWEEN

____________________

____________________

J U D G M E N T

____________________

Hon Line J (giving the judgment of the Court):

1.  The Applicant was sentenced to 5 years and 3 months’ imprisonment by Wright, J. for trafficking in a total of 207 grammes of ketamine, some of which was found on him, some at his home.

2.  He pleaded guilty and took the benefit of a third discount.  His sentence was further reduced by 3 months to reflect his co‑operation with the police and the fact that he had given them a non‑prejudicial statement naming another man as the owner of the dangerous drugs in question.

3.  No criticism is made of the starting point taken by the judge.  The sole ground of appeal is that he failed to take into account sufficiently the useful assistance that the Applicant had provided.

4.  The assistance which is said to have been useful is set out at paragraph 15 of the Respondent’s written submission.  In summary, the Applicant told the police on arrest that the dangerous drugs on him and at his home belonged to the man with him when the police intercepted him in August of 2010.  He asserted in fact that it was this man who was running the trafficking enterprise.  He repeated the assertion in interview.

5.  In September of 2010 the police asked him for a non‑prejudicial statement to the same effect.  The Applicant refused.  He changed his mind and gave the statement in February of 2011, a week prior to his committal to the High Court for sentence.  He was sentenced in April of 2011.

6.  In July 2011 it was decided that no charge would be laid against the other man. The summary demonstrates to us that the information given was not useful.  The Applicant merely rehearsed in writing his assertions that the other man was the owner of the dangerous drugs and it was he who was running the trafficking enterprise.  The identity of the other man was always known to the police.

7.  The claim was by overwhelming inference unsupported and uncorroborated.  It is no surprise to us that it was not considered sufficient to launch a prosecution. The Applicant was lucky to receive a further 3‑month reduction in his sentence.  It was understandable and proportionate, as at that time the question of proceedings against the other man was still unresolved.  The judge rightly was minded to give no greater discount in those circumstances as it well settled that such must be based on delivery of real assistance, and not on a promise of it or on a general intention to help.

8.  Accordingly, the application for leave to appeal the sentences is dismissed.