HKSAR v. M

CACC 327/2019

[2021] HKCA 1694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 327 OF 2019

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  On 22 October 2019, following his conviction on his own plea to one count of conspiracy to traffic in dangerous drugs (Count 1)  and one count of trafficking in dangerous drugs (Count 2)  before Wong J (the judge), the appellant was sentenced to a total of 12 years and 3 months’ imprisonment. 

2.  With leave from a Single Judge, the appellant appeals against his sentence on the sole ground that he has rendered assistance to the authorities, which was of practical use, and he was therefore entitled to a further discount beyond the discounts he received for his guilty pleas and disclosing the offence in Count 1 to the authorities.[1]

The admitted facts

3.  In the evening of 12 October 2018, the appellant was stopped by police officers when he was entering a flat in Kowloon.  A search of the flat by the police officers recovered 807.50 grammes of ketamine and 5.90 grammes of cocaine as well as other drug paraphernalia.  The appellant was arrested for trafficking in dangerous drugs and cautioned.  He admitted that the drugs belonged to him and that he intended to sell the drugs to others.  

4.  In a subsequent video record of interview, the appellant admitted that he had been recruited by a person, whom he described by his nickname, (who will be referred to as “X”)  to repackage the drugs into bags at the flat and to deliver them to different drivers who would in turn distribute them to buyers.  He stated that he would receive a reward of $1,000 each day for the work he did for X.  He claimed he did not know the identity of the owner of the flat or the drivers to whom he would deliver the drugs.  He also admitted that he had conspired together with X to traffic in dangerous drugs, namely ketamine and cocaine, and at the time of his arrest he was in possession of the drugs seized from the flat for the purpose of trafficking.

The sentence

5.  At the time of sentencing, the appellant was 29 years of age with no previous criminal convictions.  It was submitted on his behalf that he was remorseful and committed the present offence because of financial hardship.  It was also noted that he had personal issues as his father was suffering from ill health.

6.  It was explained that the appellant had provided a non-prejudicial statement to the police but as at the date of sentencing nothing had resulted from the information he had provided. 

7.  After reviewing the facts of the case and the background circumstances of the appellant, the judge adopted a starting point of 15 years’ imprisonment for Count 1 and 13 years and 6 months’ imprisonment for Count 2, taking into account the aggravating factor of trafficking in a cocktail of drugs.  The judge gave a discount of one third to the appellant for his guilty pleas.  In respect of Count 1, the judge gave an overall discount of 38% because the police would not have discovered or known about this offence if he had not confessed to it.  The judge gave no further discount for the assistance the appellant had rendered to the authorities because at that stage it had not been shown to be of practical use. 

8.  This resulted in the appellant being sentenced to 9 years and 3 months’ imprisonment on Count 1 and 9 years’ imprisonment on Count 2.  After applying the totality principle, the judge ordered that 3 years of the sentence on Count 2 was to run consecutively to the sentence on Count 1, resulting in a total sentence of 12 years and 3 months’ imprisonment.

The assistance rendered

9.  A statement has been filed by the investigating police officer, Inspector of Police, Ng Kwan-hung, dated 5 January 2021, to which he attached his affirmation dated 17 August 2020.  In his affirmation, he set out the information provided by the appellant, who disclosed the identity and alleged involvement of three other persons in the drug distribution operation at the flat.  Inspector Ng also provided an appraisal of the information, pointing out that it was not reliable and had not shown to be useful after enquiries had been made. 

10.  Inspector Ng attached to his affirmation the non-prejudicial statement of the appellant dated 27 June 2019 and a letter from the Department of Justice dated 21 October 2019 addressed to the clerk to the judge, informing the judge that the appellant had provided information to the police but it was “not yet clear” whether his assistance was of “any useful value” because various attempts to locate persons identified by the appellant had “not been fruitful”.

11.  The three persons referred to by the appellant will be referred to as X, Y and Z.  As a result of the information provided by the appellant, the police carried out an investigation in respect of each person.  However, because the information was vague and imprecise, the investigations undertaken by the police were unproductive, and otherwise offered no beneficial or practical use to law enforcement.  X was known to police and the subject of two separate criminal investigations.  Y was successfully prosecuted for a drug offence unrelated to the information the appellant had provided, which was very vague.  The information the appellant provided in relation to Z was that the flat was leased in Z’s name but sought to exonerate him from the drug distribution operation at the flat.

12.  Inspector Ng also noted in his affirmation that there were issues as to the appellant’s credibility and reliability because of the inconsistencies between his non-prejudicial statement and what he said earlier in his video recorded interview.  He highlighted in particular that call and message records had been deleted from the appellant’s mobile phone and CCTV footage at the location of the flat on 12 and 13 October 2018 only captured the appellant and not the other three persons he identified.

13.  In a statement from Senior Superintendent of Police, Glenn Darren O’Neill, dated 10 February 2021, he said he examined all the facts and certified that as reported by Inspector Ng, the assistance rendered by the appellant was not of practical use.

The appellant’s submission

14.  Ms Fiona Nam, for the appellant, submits that the information provided by the appellant in his non-prejudicial statement was of practical use despite the fact that it did not result in a successful arrest or prosecution.  She argues the appellant provided information that was of practical use because it led to a criminal investigation, or was, at the very least, very useful criminal intelligence. Her complaint is in essence that the procedure and evaluation of such assistance as laid out in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516 was not followed or applied, and therefore the appellant did not receive a just and fair sentence in the circumstances.

The respondent’s submission

15.  Mr Derek Lau, for the respondent, argues that the information provided by the appellant was determined to be of no practical use because he provided the information late, some 8 months after his arrest, and it was of insufficient detail or otherwise already known by the authorities.  X and Y were known to be involved in the drug trade by the police and Z was readily identified as the lessee of the flat.

Discussion

16.  It is readily acknowledged that the courts accept useful assistance as a mitigating factor which may entitle a defendant to an appropriate reduction from the sentence which he would otherwise have received. In assessing the usefulness of the assistance provided by a defendant, Li CJ in Z v HKSAR (2007)  10 HKCFAR 183 explained that in broad terms factors include the nature and extent of the assistance; and the likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of imprisonment, and dangers to himself and his family after release from prison.[2] He noted that the relevant considerations in judging the nature and extent of the assistance include:[3]

(1)  the degree to which the defendant gave full and frank disclosure;

(2)  the truth and reliability of the information;

(3)  the range and seriousness of the criminal activities disclosed;

(4)  the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities;

(5)  whether the authorities were already in possession of the information and whether the defendant believed this to be the case; and

(6)  the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

17.  The relevant law enforcement agency and the prosecuting authority have the onerous obligation of ensuring that a fair and proper evaluation of the assistance rendered to the authorities has taken place.  It is this evaluation that the courts rely upon in order to determine whether the assistance rendered by a defendant merits a reduction from his sentence.  This was emphasised by this Court in Yeung Hoi Ting in the following passages:

“83. Ultimately, it will be a matter for the law enforcement agencies, as to how they deal with an offender in relation to the provision of information or assistance, and what, if anything, they are able to disclose to the court. However, it needs to be stressed that law enforcement agencies have a very important role to play in this aspect of the sentencing process and must properly discharge their professional duties and obligations in strict adherence to the relevant principles and procedure. The court has a duty to impose on the defendant a just and fair sentence, and it is therefore in the interests of justice that any material which is relevant to sentence is disclosed to it. This necessarily means that law enforcement agencies should endeavour to assist a court in this regard by providing an assessment of the provision of information or assistance, if and when this issue arises in the sentencing process.

…

95. Before setting out the procedure that should be employed when a defendant makes a claim of having assisted the authorities there are two matters that need to be mentioned. The first is how to evaluate the assistance and in this respect we wish to take the opportunity to clarify that the assessment of the information or assistance rendered by a defendant should be evaluated on the basis of whether it is ‘of practical use’. It should not be limited to whether it leads to ‘a tangible result’, such as a successful arrest or prosecution, for as acknowledged by both Macrae V-P[4] and McWalters JA,[5] in their respective judgments in HKSAR v Kilima, this test is far too restrictive in the context of criminal intelligence or investigation. As explained by Macrae V-P, whether a discount in sentence should be awarded for information or assistance given by defendant to the authorities depended on whether the assistance was ‘of practical use’ and that such term clearly encompassed the type of information which ‘could potentially assist or had actually assisted the authorities’, as described by the Court of Final Appeal in Z v HKSAR.[6]

96. In future, we expect that law enforcement agencies will assess any information or assistance rendered by a defendant on the basis of whether it is ‘of practical use’, and not restrict such assessment to whether it led to ‘a tangible result’.

97. The second matter is to emphasise the importance of the role of the prosecutor. In HKSAR v Kilima, McWalters JA noted two matters that he considered should significantly reduce the risk of a dispute by a defendant of the assessment by the authority of the assistance he had provided. The first is the fact that an essential element of the Sivan procedure is that the assessment of the investigation officer is separately examined by a more senior officer independent of the investigation. He considered that the involvement of the senior officer is ‘a significant factor which lends credibility of the assessment of the law enforcement agency of the value of the assistance provided by the defendant’.[7] The second is that prosecuting counsel assumes responsibility for the view taken by the law enforcement agency and therefore would ensure that the information submitted can be appropriately relied upon by the court.”[8]

18.  The test that is commonly used in assessing the usefulness of the information or assistance is whether it is “of practical use” to the authorities.  This test is not limited to where there are tangible results, such as a successful arrest or prosecution, but would include useful information that may be of potential assistance to the authorities because it has the capability of preventing, monitoring or detecting criminal activity.  However, the information has to satisfy the conditions of being credible and reliable otherwise it cannot have the effect of supporting or confirming the accuracy of criminal intelligence on which law enforcement can rely or act upon.  As stated by this Court in HKSAR v Araque Escobar Brigida Maria, unrep., CACC 364/2017, 7 November 2018, the usefulness of assistance will usually depend on a variety of factors, including the nature and significance of the information, the truthfulness, reliability and completeness of the information, the timeliness of the provision of the information, and the ability of the authorities to check and assess the information and act upon it.[9]

Conclusion

19.  The information provided by the appellant was not of a quality that could be gainfully utilised by the authorities in the prevention, detection and prosecution of crime.  It was not capable of leading the authorities to uncover the involvement of others in the offences in question, nor in any other past, present or future offences.  It also did not provide any useful intelligence to the authorities, and to the extent that information was provided, it was already known to them.

20.  We have carefully considered the submissions of the parties and find that the evaluation of the police that the information provided by the appellant to be of no practical use is soundly based, and does not merit a reduction from his sentence.  Accordingly, we dismiss the appeal.