THE QUEEN v. HO CHUN KEUNG

Headnote

The Court was satisfied that other than in exceptional circumstances, a court when considering the discount to be given to an offender who has cooperated with the authorities and who has promised to give evidence against other offenders, should confine itself to what has occurred up to the date of the hearing and should not give credit for a promise to give evidence. Genuine cooperation and the giving of reliable information may be worthy of credit but they must be divorced from an unfulfilled promise to give evidence. When such a promise is given, the hearing of the appeal should, if it is practicable, be postponed until after the trial of the other offenders. The court was satisfied that R. v. CHAN Foo-kui should not be taken as to establish a guideline that "a reduction of 50% was appropriate in an ordinary case where a defendant had pleaded guilty and had given assistance to the prosecution in other cases".

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JUDGMENT

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Power, J.A.:

1. The 1st applicant, NG Hon-kit, pleaded guilty to two counts of possession of dangerous drugs for the purpose of unlawful trafficking and one count of manufacturing of dangerous drugs. The 2nd applicant, HO Chun-keung, pleaded guilty to three counts of possession of dangerous drugs for the purpose of unlawful trafficking and one count of manufacturing of dangerous drug. The 1st applicant was sentenced to 11 years and six months and 4 years and 6 months on the possession counts and 13 years and 6 months on the manufacturing count. The sentences were ordered to be concurrent. The 2nd applicant was sentenced to 10 years, 11 years and 6 months and 4 years and 6 months on the possession counts and 13 years and 6 months on the manufacturing count. All sentences were ordered to be concurrent.

2. The facts surrounding the charges were as follows. At about 9.15a.m. on the 21st of May 1988 the 1st applicant was seen walking out of the Kam Po Building. He was intercepted by police officers and a black travel bag he was carrying was seized. This was found to contain 10 bags of dangerous drugs weighing 4533.09 grammes of a mixture containing 265.64 grammes of salts of esters of morphine (Count 1). A bundle of keys was found in the 1st applicant's left trousers pocket and he was then escorted to Flat B on the 4th floor of the building and one of the keys was used to open these premises. A search was conducted and 332.89 grammes of a mixture containing 283.15 grammes of salts of esters of morphine was found (Count 2). The premises were also found to contain chemicals and paraphernalia relevant to the manufacturing of dangerous drugs and a Government Chemist stated that she was of the opinion that the chemicals and equipment were those commonly associated with the manufacturing of No.3 heroin from No.4 heroin and that such a process had taken place in the premises.

3. The 2nd applicant was stopped at 10.25a.m. on the 5th of May 1988 and inside a bag which he was carrying was found $11,516.10 in cash and 2,306.63 grammes of a mixture containing 128.30 grammes of salts of esters of morphine (Count 1). The applicant then took the police to Flat D on the rooftop of the Yau Moon Mansion and the premises were opened with a key which had also been found on his person. Chemicals and equipment were found inside the premises which a Government Chemist said were commonly associated with the manufacture of No.3 heroin from No.4 heroin, and he said that this process could have been carried out inside the premises (Count 2). Also found in the premises were 13,290.66 kilos of a mixture containing 735.95 grammes of salts of esters of morphine (Count 3). Later on that day in premises at Room 4, Flat A, 2/F, Luen Wo Building, 9-11 Tin Chong Street, which opened with a key taken from the applicant, 484.31 grammes of a mixture containing 29.41 grammes of salts of esters of morphine was found (count 4).

4. Inquiries revealed that both of the applicants were chemists working for the same syndicate but that up to the time of their arrest each had been wholly unaware of the other's existence. On the 3rd of October 1988 the 2nd applicant made a 35 page statement to the police officers revealing the names of the alleged heads of the syndicate and other information concerning its operation. On the same day the 2nd applicant made a 16 page statement giving similar information. On the 7th of October 1988 the two applicants appeared before Duffy J. and pleaded guilty to all charges. Between the time of that plea and the appearance before Ryan J. on the 6th of February 1990 when the applicants were sentenced they appeared before several judges and on each occasion maintained their pleas of guilty.

5. On the 28th of February 1989 the three alleged syndicate heads were arrested. They were, for some reason for which no satisfactory explanation has ever been given, released upon police bail whereupon they absconded. This episode standing unexplained as it does occasion us the gravest concern. We express the hope that it has been fully investigated by the appropriate authorities.

6. On the 10th of March 1989 the applicants attended an identification parade at which they identified a person known as Hung Chai who had, they said, been a courier for the syndicate. The three alleged syndicate heads were not on that parade as they had already absconded.

7. On the 16th of January 1990 the applicants gave evidence against Hung Chai at a trial before Ryan J and a jury. The applicants, the Crown concede, gave evidence in accordance with their proof and did not resile therefrom under cross-examination. Hung Chai was, in the outcome, acquitted by a majority verdict. The evidence against him consisted of the uncorroborated evidence of accomplices, namely the applicants, and the trial judge gave a proper accomplice warning to the jury.

8. Ryan J., having been the trial judge, was also the sentencing judge and at that time he said:

"That defendant was acquitted by the jury and they thereby made a statement in their verdict that they did not accept the evidence of the 2 defendants when they named that man as part of the syndicate. In my view, very little credit can therefore be given in reducing the sentence relating to this aspect of the mitigation."

While he went on to say that he was giving them credit for identifying the three heads of syndicate, he clearly gave them very little credit for appearing and giving evidence.

9. Mr. McCoy, who appears for the applicants, has referred us to cases which dealt with the persons convicted of the manufacture of No.3 heroin and he suggested that these indicate that an appropriate starting point would have been 15 years. He submits that, as there was no evidence of the amounts of dangerous drugs being manufactured, the court should not put the applicants' offences at the top of the scale. We do not agree with this approach. Each of the applicants was clearly involved in a substantial manufacturing operation. The amount of dangerous drugs seized at the time of their arrest indicates this. It is true that there is no evidence as to the turnover of either operation but this evidence, if it were available and if the quantities found were very great, would do no more than, aggravate an already very serious offence. Its seriousness lies in the fact that a plant capable of processing substantial quantities of dangerous drugs and been set up and was, in each case, being used by the applicant for the manufacture of No.3 heroin from No.4 heroin. The gravamen of the charge lies in the existence of the plant and in its capacity to manufacture dangerous drugs. We note also that we are dealing here with the manufacture of No.3 heroin from No.4 heroin, a facet of trafficking which is relatively new. We think the trial judge was quite right to regard this as a very serious offence and to adopt a starting point of 18 years when sentencing therefor.

10. Mr. McCoy's next three grounds of appeal can be taken together. They are:

11. Mr. McCoy urges us to bear in mind that the applicants gave the names of the three alleged syndicate heads, that this led to their arrest and that the applicants' stated intention of giving evidence against them, the good faith of which they demonstrated by giving evidence against Hung Chai, was not able to be carried into effect because the three arrested persons absconded while on police bail. He further urges that the action of the three in absconding is a significant indication that the information given by the applicants was true.

12. It was Mr. McCoy's argument that the judge failed to give adequate credit to the applicants both with regard to these matters and for their evidence, in which they came up to proof, at the trial of Hung Chai.

13. Mr. McCoy submits that they were entitled, as regards that evidence even though that defendant was acquitted, to substantial credit. It does seem that the trial judge was less than generous to the applicants when he said that the verdict indicated that the jury did not accept their evidence. It would have been fairer, and more accurate, to have said that it indicated either that the jury did not accept their evidence or that the jury, although they may have thought that the applicants were entitled to a substantial degree of credit, nonetheless, needing the accomplice warning, felt it dangerous to convict. It is the argument of Mr. McCoy that, if a person gives evidence for the Crown, lives up to his proof of evidence and does not resile therefrom in cross-examination, he is entitled to be given a real measure of credit therefor even though the trial results in an acquittal. He concedes that the case would be different if the witness prevaricated while giving evidence or failed to come up to proof but submits that this was not the case here.

14. The trial judge gave an overall discount of 25%.

15. It is our view that, other than in exceptional cases, a court, when considering the discount to be given to an offender who has cooperated with the authorities and who has promised to give evidence against other offenders, should confine itself to what has occurred up to the date of the hearing and should not give credit for a promise to give evidence. Credit should be given for what an applicant has actually done and not for what he promises to do. Genuine cooperation and the giving of reliable information may be worthy of credit but they must be divorced from an unfulfilled promise to give evidence. Where such a promise is given, the hearing of the appeal should, if it is practicable, be postponed until after the trial of the other offender.

16. The present case is, in our view, an exceptional one. We are satisfied that credit must be given not only for the cooperation with the authorities, which included giving information that led to the arrest of the three alleged syndicate heads and another member of the syndicate, and the giving of evidence against the latter, but also for the undertaking to give evidence against the alleged heads. we consider it proper to give some weight to the last consideration both because the applicants demonstrated their good faith, as regards the giving of evidence, by actually giving evidence against the other syndicate member and because their undertaking to give further evidence was frustrated, through no fault of theirs, when the three absconded while on police bail.

17. Giving proper weight to the matters set out above and accepting that the applicants for their own safety have presently to be segregated from other prisoners and have a real fear of reprisal against themselves and their families by the syndicate, we are satisfied that the discount given, while substantial, was not sufficient.

18. In R. v. CHAN Fu-Kui (1986) H.K.L.R. 967, it was indicated that a reduction of 50% was appropriate "in an ordinary case where the defendant had pleaded guilty and had given assistance to the prosecution in other cases." Despite the use of the term "ordinary" we are satisfied that this authority should not be taken to have established any guideline to be generally followed. Every case of this type must depend very much upon its own circumstances. We are satisfied that a reduction in the region of 40% would have been appropriate in the unique circumstances of the present case and we therefore grant the application, treat the hearing of the application as the hearing of the appeal and order that the sentences be reduced as follows:

1st Applicant NG Hon-Kit:

Count 1 - 11 years & 6 months reduced to 9 years.

Count 2 - 4 years & 6 months reduced to 3 years & 6 months.

Count 3 - 13 years & 6 months reduced to 11 years.

2nd Applicant HO Chun-keung:

Count 1 - 10 years reduced to 8 years.

Count 2 - 13 years & 6 months reduced to 11 years.

Count 3 - 11 years & 6 months reduced to 9 years.

Count 4 - 4 years & 6 months reduced to 3 years 6 months.

Sentences concurrent.