HKSAR v. NG TSZ HONG DEOLOSS

CACC 126/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 126 OF 1999

(ON APPEAL FROM DCCC 1400 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 19 February 1999, the Applicant pleaded guilty in the District Court before Deputy Judge Sinclair to one charge of possession and two charges of trafficking in dangerous drugs. He was sentenced to a total of five years' imprisonment against which he now seeks leave to appeal.

2. The first charge related to events on 29 August 1998 when the Applicant was found in possession of a mixture containing 27.31 grammes of heroin hydrochloride at the Fanling Centre Shopping Arcade. The heroin was divided into 17 separate bags. He admitted on arrest that they were for his own consumption. On analysis, the heroin was discovered to be almost pure.

3. Four days later, on 2 September 1998, the events which gave rise to charges 2 and 3 occurred, while the Applicant was on bail for the first offence. The Applicant was stopped on the staircase close to his home premises and found on this occasion to have 12 packets of drugs in his possession. The drugs in charge 3 were found at his home address. The amounts involved mixtures containing 3.66 grammes and 16.54 grammes of heroin hydrochloride respectively.

4. The Applicant pleaded guilty in due course to possession of the heroin in charge 1 and to trafficking in the heroin in charges 2 and 3. The judge imposed a sentence of four years' imprisonment on charge 3 and a concurrent term of two years' imprisonment on charge 2. So far as the offence of possession alleged in charge 1 was concerned, the judge imposed a two-year sentence, with one year to run consecutively to the sentence of four years on charge 3, making five years in all. Those sentences all reflected a one-third discount to take into account the mitigation provided by his pleas and general cooperation. The starting points taken by the judge under the guidelines in The Queen v Lau Tak-ming and Another, [1990] 2 HKLR 370 cannot be criticised.

5. The sole point raised in this application relates to a mitigating factor which has arisen since sentence was passed. The Applicant has outlined this in his affidavits and in his ground of appeal. He submitted that he had provided additional assistance to the authorities which should further reduce his sentence as a reflection of this.

6. At the time when sentence was imposed at the District Court, the Applicant's counsel was able to indicate that the Applicant had provided information to police about the person who had allegedly supplied him with the drugs. In relation to this, the judge said:

"I do not feel that any additional discount can be given to the defendant for his having given the police the name of a man who he says had supplied him with all the drugs. That man, I am told, was arrested but has absconded. I do not know whether he would have been charged or whether the defendant would have testified had he been charged. If, as events prove, the defendant does eventually testify for the prosecution, it will then be a matter for the Executive to decide what, if any, clemency should be afforded the defendant as a consequence of his assistance"

7. The Applicant was originally given legal aid for the purposes of this application and, while he was receiving the benefit of legal advice, two affidavits were prepared and signed by the Applicant. In these, he set out the assistance that he had given before, and more particularly the assistance he had given after, sentence was passed. In his second affidavit, he stated that he had eventually been called to testify against the man he had named as his supplier to whom we shall refer, for the purposes of this application, as "Ah Fai". The Applicant also described an incident in Stanley Prison when he was approached and threatened by three inmates who claimed to be friends of Ah Fai, against whom he was then waiting to testify. As a result of this approach, he was taken into solitary confinement for his own protection until the conclusion of the trial. He also claimed in his affidavit that the prosecution had led evidence of his home address during Ah Fai's trial, so that his family's precise whereabouts became known to Ah Fai and his friends.

8. The transcript reveals, on this last point, that the Applicant is accurate. It was quite unnecessary to have revealed the Applicant's flat number, and no prosecutor should have led that evidence without a very good reason for doing so. In this case there was none at all.

9. The trial of Ah Fai in the District Court took place during October 1999. In the result, Ah Fai was found to have no case to answer. This was because of a major discrepancy between the evidence given by police when compared to the Applicant's account of what had occurred. In such circumstances, the trial judge quite properly and understandably found that the Applicant's testimony, on whom the case against Ah Fai depended, could not be accepted and so Ah Fai was acquitted.

10. The difficulty which had been encountered in the trial of Ah Fai, which makes this application extremely unusual because the Respondent does not accept the Applicant was a witness of truth who is deserving of further credit for his "assistance", had arisen in these circumstances. The Applicant testified that during the afternoon of 29 August 1998, he had telephoned Ah Fai for the purchase of an ounce of white powder. At sometime after 7.00 p.m., Ah Fai telephoned the Applicant asking him to wait at the lift entrance at Ah Fai's address. The Applicant stated that he arrived at the lift entrance at about 8.00 p.m. where he met Ah Fai as arranged and was given the white powder. He went on to say that the transaction lasted about 10 seconds and that he went to a toilet to consume part of the drugs and to pack the remainder for trafficking purposes. He remained, according to his evidence at trial, in the toilet for about half an hour. As he left the toilet, he said he was arrested by police officers. This account was completely consistent with what he had said in his statement given to the police for the purposes of deciding whether or not he would be used as a witness in the trial of Ah Fai.

11. This evidence was not, however, consistent with the evidence given by Detective Sergeant 22837 who had been keeping observation on the doorway of the Applicant's flat from a building opposite, from 3.30 p.m. to 9.05 p.m. on that day. The sergeant testified that between those times nobody came in or out of the flat until 9.05 p.m. when the Applicant himself came out.

12. As it happens, this version of events given by police did not accord with the version of events admitted by the Applicant in the Summary of Facts relating to his pleas of guilty in the District Court because that stated:

"1st Charge

1. On 29.8.98, the Taipo District Intelligence Squad performed an anti-narcotic operation at Cheung Wah Estate, Fanling. Sgt 22837 (PW1) was on observation post whilst DPC 16359 (PW2) and PC 51095 (PW3) laid ambush at G/F, Cheung Lok House, Cheung Wah Estate (the building). At around 1530 hours on the same day, PW1 saw the defendant leaving Room 1815 of the building. PW1 then informed PW2 and PW3 who saw the defendant walking out from the G/F of the building. PW2 and PW3 then followed him. At around 2130 hours on the same day, PW2 and PW3 followed the defendant to the G/F, Fanling Centre, Shopping Arcade outside a public toilet. The defendant stood there acting suspiciously. PW2 and PW3 went forward to intercept him. The defendant was searched and was found to have in his right trouser pocket 2 plastic bags containing white powder and one plastic bag containing 17 packets each of which contained white powder. Upon being questioned, the defendant admitted that those were white powder. PW2 then arrested the defendant." (Emphasis added).

13. It is clear, based upon the police version of events in the trial of Ah Fai, that the Summary of Facts in the Applicant's own case which he had admitted, must have been incorrectly worded. This has to be so when the police version in Ah Fai's case was that no one left the flat between 3.30 and 9.05 p.m. On the police version, the Applicant had not been seen to leave his home address at 3.30 p.m.

14. Mr Albert Wong, on behalf of the Respondent, submitted that even based upon the wrong facts stated in the summary, the arrest of the Applicant at 9.30 p.m. when he was standing outside the toilet looking around suspiciously was wholly inconsistent with the Applicant's testimony that he had stayed inside the toilet for half an hour. In such circumstances, he submitted, there was a sufficient basis for saying that the Applicant should not be treated as a witness of truth against Ah Fai.

15. We do not think Mr Wong's approach can be right. It contradicts the way in which the prosecution conducted its case against Ah Fai. The prosecution was fully aware of what the Applicant had said in his witness statement, and they proposed to use the Applicant himself as a witness of truth based on what he had said in his statement. When the Applicant was called, he gave evidence in complete accordance with what he had said in his statement and with the earlier Summary of Facts.

16. Obviously, we are left in a position of considerable uncertainty about what the true picture really is. If the Applicant, as the Statement of Facts admitted by him in the present case says, did leave his flat at 3.30 p.m. and if, as Detective Sergeant 22837 said at Ah Fai's trial, the Applicant was seen to leave his home at 9.05 p.m., it follows that the Applicant must have gone home at some stage between those hours unnoticed by anyone.

17. Furthermore, the Applicant was speaking about his dealings with Ah Fai at about 8.00 p.m. when, it seems, there was no evidence of surveillance on his movements.

18. The uncertainty is such that we are unable positively to resolve it. However, while the Applicant's evidence at Ah Fai's trial may not have been accepted by the judge for perfectly understandable reasons, it is apparent that his evidence may well have been a genuine attempt to give a true account of his dealings with Ah Fai. Either he or the police may have made factual errors, but there is no reason to believe that the Applicant was not trying to do his best to testify truthfully against Ah Fai.

19. In the circumstances, we feel that justice can only be done by giving additional credit to the Applicant for the cooperation which he has rendered. The way in which we propose to achieve this is to return to the starting points, which have not been criticised, taken by the sentencing judge. The most serious of the offences was charge 3 where the judge had taken a starting point of six years and reduced it to four years. We propose to reduce this term of imprisonment to three years. On charge 2, the starting point of the judge was three years reduced to two years. We propose to reduce this to one and a half years, concurrent to the three years on charge 3. On the first charge, the judge took a starting point of three years and reduced it to two years, making one of those years consecutive. We propose to reduce this sentence to one and a half years, making nine months consecutive.

20. Accordingly, we shall grant leave and, treating the application as the appeal, we reduce the overall sentence of five years to three years and nine months.