THE QUEEN v. MOK LUN

IN THE COURT OF APPEAL

1995, No. 477
(Criminal)

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J U D G M E N T

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

1. On 26 April 1995 the applicant pleaded guilty before Gall J to one count of trafficking in 556 grams of heroin. On 22 June, after adjournments during which he gave evidence for the Crown in another trial, he was sentenced to 8 years imprisonment. He now asks for leave to appeal against that sentence.

The facts

2. The facts of the case are unremarkable. On 29 September 1992 he was arrested in the street. When the police searched his residence, they found the drugs in the charge in plastic bags. The applicant is 53 years of age. He is a hardened criminal. He has been to prison for lengthy periods: in 1975 for 5 years; in 1980, 6 years; and in 1986, another 6 years.

3. So far as the instant offence is concerned, there is no dispute that the appropriate starting point is 18 years imprisonment. The judge reduced that sentence to one of 8 years because of the assistance the applicant had given to the prosecuting authorities. He gave evidence of a confession an armed robber had made in prison. Having given that evidence the robber was convicted. The case did not depend upon his evidence but undoubtedly, his evidence assisted. It was a very serious case. During the robbery, 4 policemen attended and the accused disarmed the police at gun point. It is interesting to note that there were two other inmates called who gave evidence for the accused that no confession had been made.

4. But the most important matter relevant to this sentence was the assistance that he gave in a drugs case. He gave the police detailed statements which led to the arrest of two men. At their trial for a drugs conspiracy, he gave evidence for 91/2 days. The information he had given and the evidence in court led to their conviction. It was a huge case. It involved just short of 60 kilograms of drugs. The consequence was that the two accused received 24 years and 22 years respectively.

The application

5. The applicant is one of the few in Hong Kong who can be said to come into the 'supergrass' category. The consequence is that he sought and received a considerable reduction in his sentence - from 18 years to 8 years. But the applicant, through Mr Grounds, says that although the judge has a very wide discretion in deciding what discount should be given, the discount was not sufficient and manifestly so. He points to a number of matters. The facts of the applicant's assistance speak for themselves. But he has given assistance not only in a case involving itself serious violence but also in the drugs case we have mentioned.

6. There is no doubt that those who give assistance of this kind do put their lives and limbs at risk. Indeed, in this case the applicant has already been attacked and injured because of the evidence he gave in the robbery case. He has received threats from those who were convicted in the drugs case. His family is also likely to be put at risk. Those matters ought to be given full weight.

Conclusion

7. Those who give assistance on the level of this applicant must be given every encouragement to do so. The facts in each case are different. One case is often not a guide as to what should be done in another. It suffices in this case for us to say that the discount which was given was inadequate. It was manifestly so. In those circumstances we allow the application. We treat the application as the appeal. We reduce the sentence of 8 years to one of 6 years imprisonment to be served concurrently with the sentence he is now serving.