HKSAR v. TSUI KWOK KIN

CACC 41/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 41 OF 2008

(ON APPEAL FROM HCCC NO. 249 OF 2007)

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J U D G M E N T

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McMahon J (giving judgment of the court) :

1.  The applicant, to whom we shall refer as “D7”, was originally one of eight co-defendants jointly charged with one count of conspiracy to traffic in dangerous drugs.  We will not refer to either the particular facts of the offence or the various pathways by way of plea, trial, retrial and appeal by which various of the defendants came to receive their existing sentences, which in the case of D7 is one of 5 years 4 months’ imprisonment.  That history is sufficiently set out in HKSAR v. Wong Kwok Leung, (unreported), CACC389/2005 and HKSAR v. Chan Wing Tim, (unreported), CACC41/2008.

2.  In June 2008, a co-defendant of D7, who was D6 at the original trial and who had received an identical sentence to D7 of 5 years 4 months’ imprisonment reflecting the identical roles they had played in the conspiracy, succeeded on an appeal to this court (differently constituted) in having his sentence reduced to 4 years 8 months’ imprisonment : see HKSAR v. Chan Wing Tim (supra).  It was brought to our attention by Mr David Leung for the respondent during the course of hearing the applications regarding sentence of other co-defendants of D6 and D7, i.e. D1 and D2, on 21 November 2008 (see HKSAR v. Wong Kwok Leung, (unreported), CACC389/2005) that D7 had made no application concerning his sentence following the earlier reduction of D6’s sentence.  Mr Leung on 21 November very fairly indicated that should D7 make an application out of time concerning his sentence it would not be opposed.

3.  Accordingly we had D7 brought before us this morning.  The circumstances were explained to him and he indicated he wished to seek leave to appeal his sentence out of time.

4.  We ordered that his application be consolidated with CACC41/2008 and we made that order (which is due for further hearing on 17 December 2008 regarding D3) but because D7’s sentence will have been almost fully served by that time, we proceeded with his application this morning.

5.  The involvement of D6 and D7 in the conspiracy was identical to that of another co-defendant, D4.  It was for that reason that the court in Chan Wing Tim reduced the sentence imposed on D6 to 4 years and 8 months’ imprisonment.  That achieved parity with the sentence imposed on D4.

6.  The same reasoning applies to D7.  His role and involvement in the offence cannot be distinguished from that of either D4 or D6.

7.  Accordingly, on the undertaking of D7 to file a formal application pursuant to Form XI of the Criminal Procedure Ordinance, Cap. 221 for leave to appeal his sentence out of time, we allow his application, treat this hearing as the appeal, allow the appeal and order that his sentence of 5 years 4 months’ imprisonment be reduced to one of 4 years 8 months’ imprisonment.  We understand that results in his immediate release.