THE QUEEN v. HEUNG CHI KEUNG AND OTHERS

Headnote

The applicants were an Correctional Services officer and two prisoners and the conspiracy was to traffic in dangerous drugs by bringing them into Stanley Prison. All applicants pleaded guilty. The Prison Officer was sentenced to four years on the conspiracy charge and six months on the charge of accepting an advantage contrary to the Bribery Ordinance. The other applicants were sentenced to three years on the bribery charge.

The Court was satisfied as regards to the Correctional Services Officer that a sentence in the vicinity of five years was called for and the starting point of four and a half years was by no means too high. The court was satisfied that the trial judge had not given weight to the fact that the Prison Officer and the second applicant gave evidence, leading to the conviction of a female involved in the conspiracy who was the wife of another prisoner.

Court held that in the case of the Correctional Services Officer, the discount should be eighteen and not six months and varied his sentence to one of three years. In the case of the second applicant, for the same reasons, the sentences were varied to one of two years and six months.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicants were charged with conspiracy to traffic in dangerous drugs. The 1st applicant, a Correctional Services Officer, was also charged with accepting an advantage contrary to the Bribery Ordinance. All applicants pleaded guilty to the charges on 8th May 1990 and were sentenced on 11th of that month. The 1st applicant, to whom I shall refer hereafter as the Prison Officer, was sentenced to four years' imprisonment on the Ist charge and six months consecutive on the 2nd charge. Both of the other applicants were sentenced to imprisonment for three years.

3. The facts reveal that the Prison Officer had reached the rank of Assistant Officer Class II in the Correctional Services Department. He was posted to Stanley Prison where he was responsible for the supervision of prisoners in Hall F, among whom were the 2nd applicant, the 3rd applicant and a prisoner named MAN Chuen-min. The facts state that due to frequent contacts, the Prison Officer and the 2nd applicant became friends. On 2nd September 1989, Man Chuen-min and the 3rd applicant discussed using the 2nd applicant's influence to ask the Prison Officer to smuggle three bags of dangerous drugs into the prison. The 2nd applicant was approached and agreed to this plan and then spoke with the Prison Officer. He lied to him claiming that he had been threatened and that he had to have the three bags to give to the person who had threatened him. The Prison Officer agreed to assist him and gave him his home telephone number. This was passed by the 2nd applicant to Man who passed it on to the 3rd applicant. He told this to his wife when she visited him in prison and she agreed to help. She was later charged with the offence of conspiracy and at her trial the Prison Officer and the 2nd applicant gave evidence which led to her conviction. Using the telephone, she contacted the Prison Officer and later met him, giving him three bags of dangerous drugs which he brought for $600. On the morning of 8th September, the Prison Officer smuggled these into Stanley Prison and gave them to the 2nd applicant. One of them was discovered during a security check on 9th September.

4. The I.C.A.C. was called in to investigate and the applicants all admitted their involvement when interviewed. During the investigation it was found out that a deposit of $2,000 had been made into the Prison Officer's bank account on 9th December, one day after he had smuggled the dangerous drugs into the Stanley Prison. On being further interviewed he admitted that this money had been paid into his account but said that it was a personal loan from the 2nd Applicant.

5. We are bound by the admitted facts. We cannot, however but remark that if this was a personal loan, then it was clearly one that came about because of the Prison Officer's friendship with the 2nd applicant, a friendship which he nurtured by agreeing to assist the 2nd applicant by smuggling drugs into the prison for him.

6. When sentencing the Prison Officer, the trial judge said:

"It is a very serious offence and breach of trust for a person who is supposed to be keeping order in a prison to do this."

After reference to YEUNG Kwok-fai & another v. The Queen Crim. App. 784 of 1980, he fixed the starting point for the conspiracy offence at four and a half years. We do not consider that that case was close enough in its facts to have been given any real guidance in the fixing of the starting point for the type of conspiracy charged here. Having fixed four and a half years as the starting point, the trial judge allowed six months for the plea of guilty. He then imposed a further sentence of six months consecutive for the charge of accepting an advantage.

7. Mr. Hampton who appears for the Prison Officer has referred us to two cases which are certainly more apposite in their facts to the one before us. These are R. v. LEUNG Wei-ngok Crim.App. No.394 of 1988, and R. v. WONG Pui-ho Crim. App. No.44 of 1989. Mr. Hampton suggests that these cases indicate a starting point of either four years or three years and nine months after trial.

8. We think it appropriate to indicate that the refusal by this Court to interfere with sentence on an appeal against sentence should not be taken as an indication that the sentence imposed indicates a term which can thereafter be regarded as the upper level for such offences. Such appeals, in the normal run of cases, can be taken as doing no more than indicating that the sentence imposed was not such as called for a reduction.

9. We are satisfied that cases such as the present one call for a sentence in the vicinity of five years depending upon the circumstances. The four and a half years starting point used by the Deputy Judge was, therefore, by no means too high.

10. Mr. Hampton argues that the sentence that was finally imposed was too high as it failed to take into account, among other things, the small amount of drugs involved. He did not, it is true, pursue this line of attack but conceded that the real gravity of the offence lay in the fact that this was a conspiracy to smuggle drugs into a prison. He did, however, suggest that more weight should have been given to the fact that the role of the Prison Officer was simply that of a courier. This in our view does not correctly state the extent of his complexity. It is correctly stated by saying that he was a conspirator who agreed that his role in the conspiracy should be that of a courier and who then acted as such.

11. Mr. Hampton further argues that insufficient weight was given to the fact that the applicant, being a former prison officer, would be subjected to particular hardship by being confined in prison. It is difficult to give this matter weight in terms of months or years and the importance of it will vary in each case. It is correct that it must be borne in mind as part of the overall background when sentencing and we have no doubt that it was in the mind of the trial judge.

12. Mr. Hampton has also suggested that no weight was given to the fact that the Prison Officer had obtained no personal gain. As we have already indicated, his friendship with the 2nd applicant, nurtured by his agreement to smuggle drugs, did, on the admitted facts, lead to personal gain in the form of a loan of $2,000.

13. We come now to the matters which we consider to be of real weight in this appeal. The 1st applicant not only pleaded guilty but also gave evidence against the wife of a serving prisoner which played a significant part in her conviction. The trial judge makes no mention of the latter matter in his Reasons for Sentence. We are satisfied that we must proceed on the basis that he gave no weight thereto. We refer to The Queen v. NG Hon-kit and The Queen v. HO Chun-keung Crim.App. Nos.90 and 91 of 1990 which stated:

"In Reg. v. CHAN Fu-Kui [1986] HKLR 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."

14. The circumstances of NG Hon-kit's case were that two chemists in a drug syndicate had cooperated with the police by revealing the names of the syndicate leaders; had given evidence against one member of the syndicate; had been unable, although willing so to do, to give evidence against the ring-leaders because they had absconded while on bail; and were serving their sentences in circumstances of segregation because there were real fears for their safety in prison. While we do not consider that the circumstances in the present case call for a reduction as substantial as that given in NG Hon-kit's case, we are, nonetheless, satisfied that the trial judge failed to give an adequate discount for the plea of guilty and the giving of evidence. We are satisfied in the case of the Prison Officer, the proper discount should have been eighteen and not six months and that his sentence of four years should, therefore, be varied to one of three years. We do not consider that we should interfere with the sentence of six months consecutive on the charge of accepting an advantage. This was a very serious offence of its kind given that the advantage flowed from a prisoner to a prison officer.

15. We turn to the 2nd applicant. It would appear that the trial judge must have considered that the appropriate starting point was three and a half years and to have given a discount of six months for the plea of guilty. We are satisfied, applying the reasoning set out above, that the trial judge erred and that the reduction should have been one of twelve months and that his sentence of three years should, therefore, be varied to one of two years and six months.

16. No such considerations apply in the case of the 3rd applicant and his application for leave to appeal against sentence is therefore dismissed.

17. The applications for leave to appeal of the first and second applicants will be allowed. The hearing of the applications will be treated as the hearing of the appeals and the sentences will be varied as indicated above.