HKSAR v. PAW CHAM FUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.91
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 13th December 1996, the Applicant pleaded guilty before Saied J. to a charge of trafficking in a mixture containing just over 6.5 kilos of heroin hydrochloride. He was sentenced on 28th January 1997 to 16 years' imprisonment and he now seeks leave to appeal against the length of that term.

2. The prosecution's Summary of Facts prepared by counsel, Mr. Paul Loughran, reads as follows:

"On 19th October 1994 Defendant Paw Cham-fung signed a lease to rent premises from 26th October 1994 to 25th October 1996. These premises were Flat A, 13th floor, Hing Man Building, 46-48 Hing Man Street.

The Defendant thereafter permitted the premises to be used to store dangerous drugs and on 13th February 1995 possessed the mixture and drugs (mentioned in the Chemist's certificate) found on 13th February 1995 in the said premises, for the purpose of dealing therein. The amount of mixture is 10,649.33 grammes and the amount of heroin is 6,552.68 grammes."

3. This was a woefully inadequate summary for a case of such seriousness and with such a long background to which reference will be made later.

4. In mitigation, a variety of matters were placed before the court. These included the Applicant's personal background and his association with a man called Chow. The latter topic was relevant to the way in which the Applicant first became involved in this offence and was designed to show that the Applicant played a minor role in it. Chow was allegedly a major drug dealer who was, at the time that the Applicant met him, on bail for an offence involving approximately 9 kilos of heroin. How he ever came to be on bail for such a serious offence we have not been told. Chow's trial eventually came before Saied J. It can cause little surprise that after the case began, Chow having inexplicably been allowed to remain on bail, he absconded. It is difficult to see why on the material before us the trial did not simply continue in his absence but it did not.

5. Chow's trial, however, involved a second defendant (D2) named Choi. D2 called this Applicant as a witness for the defence. The Applicant gave evidence against Chow in his absence so that it cannot accurately be called evidence against Chow. The Applicant's evidence exculpated D2 and he was eventually acquitted.

6. The Applicant was put forward in mitigation at his own trial as a man who was prepared to give evidence against Chow, if Chow was arrested in the future. It was also indicated that the Applicant had been seen a number of times by officers from various authorities in an attempt, so it was said, to give them assistance.

7. The mitigation also made reference to the background of this Applicant's case which reveals that he first came before Yeung J. and was sentenced to 22 years' imprisonment following a contested trial. The conviction was overturned on appeal because apparently the prosecution had failed to make proper disclosure of material facts.

8. At the start of the re-trial before Saied J., the Applicant again pleaded not guilty, and it was only after the second day of a voir dire, when the prosecution served additional evidence on the defence, that the Applicant pleaded guilty.

9. The prosecution, in the light of what had been advanced to the trial judge in mitigation, indicated that the Applicant had no useful information to provide to the authorities.

10. The first ground of appeal which has been advanced by Mr. William Allan, on behalf of the Applicant today, is that:

"The judge failed to give any proper weight and/or failed to take into account in his Reasons for Sentence and/or give any discount for the Appellant's clear record."

11. This point has no substance whatsoever. In a case of this gravity, and where the eventual plea of guilty came after so much time had been spent contesting the case, which reveals that there was no remorse to be seen behind the plea at all, the discount was in fact a generous one in the circumstances and fully took into account the previous good character of the Applicant.

12. The second ground of appeal is that:

"In passing sentence the Learned Judge failed to give any or any proper weight for the assistance given by the Applicant to the Customs and Excise Department, the ICAC and the police which put the Applicant at risk. Further the judge wrongly denigrated the assistance given in the interests of justice by the Applicant because the judge stated in court that .......... '... to date he not been very helpful'."

13. Again this ground is without the slightest foundation. It is not the willingness of a prisoner to supply information, but it is his ability to give effective and material information which will provide him with some mitigation. This Applicant has provided no information which has proved any use to the authorities at all. In due course, if he provides evidence against Chow, assuming he is re-arrested, that will be a matter for the Executive to take into account.

14. The third and last point raised on this Applicant's behalf is that the judge's starting point of 24 years in respect of this charge was too high. This ground of appeal cites The Queen v. Yu Kwok-lung Cr.App. 31 of 1995 to which the judge made reference when passing sentence.

15. This is a ground of appeal that has no merit at all. The most casual glance at recent authorities, not only in Yu Kwok-lung but The Queen v. Ho Chi-ming Cr.App. 447 of 1994 amongst others, indicates that the 24 year starting point for this sort of case was wholly justified.

16. There being no merit in this application, it is dismissed unhesitatingly.