HKSAR v. NG SHEK YU

CACC 178/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 178 OF 2000

(ON APPEAL FROM DCCC 1165 OF 1999)

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J U D G M E N T

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Stuart-Moore V-P (giving the judgment of the Court):

1. In January 2000, the Applicant pleaded guilty in the District Court before Judge Day to a charge of conspiracy to traffic in heroin, contrary to Common Law and to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. This was charged under the common law because the dates to which the offence related were between 1 January 1992 and 31 December 1992. The Applicant was sentenced on 26 April 2000 to 43 months' imprisonment against which he now seeks leave to appeal.

2. The facts were straightforward. The ICAC had been involved in an investigation into corruption and drug trafficking. Arising from this, the Applicant was arrested. He admitted having been recruited by the ringleader of a trafficking syndicate which had operated for about ten years. The Applicant's role was to collect heroin in small quantities and then to sell these drugs to addicts in the Yuen Long area. He was paid $20 for each of the straws of heroin he was able to sell. This brought him an income of several hundred dollars each day. An argument with the ringleader of the gang responsible for this activity led the Applicant to cease what he had been doing. He would then have been aged about 20 as he is 28 years old now. The six convictions the Applicant has acquired have all related to the simple possession of dangerous drugs which were in respect of offences which post-dated the conspiracy with which we are presently concerned.

3. The judge took into account the fact that the Applicant had not been caught in the act of trafficking. It was only because he had fully admitted his offence that it was capable of proof at all. In summarising the Applicant's role, the judge said:

"You were the man who supplied addicts with their daily fix, you were the means by which the serious drug dealers reached their market. Without men like you to sell single packets to dependants, the business cannot thrive. You were a small but active and vital part of the drug trade in Yuen Long. You conspired to do just this for six months, profiting yourself and helping others profit on an even greater scale, spreading misery as you went.

The starting point in such circumstances cannot be less than 6 years."

4. No criticism is made of the starting point in this application.

5. The judge then had to decide the discount he should give to the Applicant. The Applicant had implicated his co-conspirator, by the name of Yau Heung-tong (Yau), who was allegedly far more deeply involved than the Applicant in heroin trafficking. The judge, having been told that the Applicant had not only provided a statement against his co-conspirator but was prepared to give evidence against him also, adjourned sentencing twice to enable the Applicant to give evidence against Yau. Unfortunately, that case, which was due to be heard in the Court of First Instance, was repeatedly adjourned.

6. In the result, the judge then acceded to the Applicant's request to have his own case brought to a conclusion. The judge rightly sentenced on the basis of the assistance which the Applicant had given up to the point of sentence. The judge indicated that if, in the future, the Applicant was able to give greater assistance than had been possible by the time of sentence, the Applicant should take the matter further.

7. The judge said, when passing sentence:

"You are not in the so-called 'supergrass' category, which would merit a reduction of 50 per cent, but you have clearly earned more than the one-third reduction that your plea warrants. I shall reduce the starting point by 40 per cent and, in doing so, I specifically state that the extra discount over one-third is to reflect the help that he has given thus far to the ICAC."

8. With this background, Ms Margaret Crabtree, on behalf of the Applicant, has advanced three grounds of appeal. In the first and second of these she submitted that the judge had erred when he said that the maximum discount to be given to a "supergrass" was "50%" and that in any event the Applicant had been given an insufficient discount. She rightly suggested that a supergrass is entitled to a discount of up to two thirds of his sentence based on the starting point taken by a judge. She argued that, as a result of the judge's mistake, the discount accorded to the Applicant had been smaller than it would have been if the judge had correctly addressed his mind to the discount accorded to supergrasses.

9. We do not agree with this contention. It may very well be that the judge was mistaken or, more likely perhaps, this may have been a slip of the tongue, when referring to the extent of the discount to be accorded to a supergrass. The question to be answered, however, is whether a discount of 40% for a defendant who was not a supergrass and who had provided assistance to the authorities without giving evidence against other offenders is appropriate. We have no doubt that it was appropriate. We have on previous occasions stated that in similar circumstances to those which happen to prevail in the present case, a discount of between 40 to 45% will usually be appropriate. These grounds fail.

10. In the third ground, a matter of much greater substance is raised and, in a sense, it is a pity that the application was not confined to this ground. We can say straightaway that it has merit.

11. The Applicant, as we have said, was prepared to provide evidence by going into the witness box against his co-conspirator. However, as time went by, Yau ultimately absconded on bail and the Applicant was unable therefore to give evidence against Yau. This aspect is perhaps no more than Applicant's misfortune but there is a further element to it. Whilst the Applicant was in prison, he was approached by a man called Cheng Ka-po (Cheng). Cheng offered the Applicant $50,000 to persuade him not to give truthful evidence against Yau. The applicant was undeterred in his resolve and he reported the matter to the ICAC. In the result, Cheng was charged with doing an act tending and intended to pervert the course of justice to which he pleaded guilty in due course. Cheng was sentenced to 18 months' imprisonment.

12. All of these events have happened very recently. As the judge had rightly indicated when passing sentence in the present case, if the Applicant provided further assistance to the authorities, that was something which could be taken further before this court.

13. We consider, in the circumstances, that the Applicant is entitled to a further discount as a matter of principle. It may be that, if Yau is arrested and brought to trial, the Applicant will again be entitled to a further discount which will be a matter entirely in the discretion of the Executive.

14. For the purposes of this case, we propose to say that a discount of about 45% taken from the starting point of 6 years adopted by the judge would now be appropriate. We shall grant leave and treat this hearing as the appeal. We shall allow the appeal by reducing by four months the sentence originally imposed. This will leave a sentence to be served of three years and three months. To this extent the appeal succeeds.