HKSAR v. CHAN SIU KEUNG

CACC 348/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 348 OF 1996

(ON APPEAL FROM HCCC 395 OF 1995)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 27 May 1996, the applicant was convicted after a trial before Deputy Judge Jackson and a jury of two offences, one of trafficking in a dangerous drug and the other manufacturing dangerous drugs. For the trafficking offence, he was sentenced to 21 years imprisonment and for the manufacturing offence, he was sentenced to 23 years imprisonment concurrent. His application for leave to appeal against conviction was dismissed on 28th August 1997. He now seeks leave to appeal against sentence out of time. The drugs involved in these two offences were 7,256.69 grammes of a mixture containing 872.49 grammes of heroin hydrochloride. The trial judge sentenced the Applicant along the guidelines in R. v. Lau Tak-ming [1990] 2 HKLR 370 to 21 years imprisonment for the trafficking offence on account of the quantity of drug and a concurrent sentence of 23 years for the manufacturing offence.

2. The Applicant's first ground of appeal against sentence is the sentence was too high because he only played a minor role in these two offences. He also said that he should not be convicted of the manufacturing offence. The issue of conviction was already determined in his appeal against conviction. Therefore conviction is not material in the present appeal.

3. His other grounds may be summarised as follows:

4. After sentence he and his family had furnished to the ICAC information concerning corruption and conspiracy to traffick in dangerous drugs involving members of the disciplinary forces including customs and excise officers. He had been co-operating with the ICAC and had given to them material of a very crucial nature relating to the offences he alleged the disciplinary forces had committed. Because of this, he is now serving his sentence in Siu Lam Psychiatric Centre for his safety. Further, because the matter had to be kept confidential and he had made commitments to the ICAC, he did not appeal against sentence in his previous appeal. This he said was his reason for the delay. He also mentioned that he had offered himself to be a witness in these cases and in so doing he was exposing himself to risks of harm and was under pressure. He should be considered as a supergrass.

5. What the applicant actually says is that because he had rendered assistance to the authorities his sentence should be reduced. However, any information concerning other offences he might have furnished to the relevant authority was given after he had been sentenced. In R. v. Mak Chan-pui Crim. App. No. 483 of 1992, this court said: "As this court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this court." Thus, so far as these grounds are concerned, the applicant may petition to Chief Executive to seek a reduction in the sentence on those grounds and it is not open to him now to seek leave to appeal against sentence out of time. As to the first ground that the sentence was too high, there is no merit in it. The application for leave to appeal against sentence out of time must be dismissed.