HKSAR v. TSANG WAI KEUNG

CACC 49/2015

THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 49 OF 2015

(ON APPEAL FROM HCCC NO. 184 OF 2014)

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JUDGMENT
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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant seeks leave to appeal against the sentence of 18 years’ imprisonment imposed on him by M. Poon J on 30 January 2015, following his conviction, on his plea of guilty, to a single count of unlawfully trafficking in 13.73 kg of cocaine on 30 October 2013.

The facts

2.  The applicant was intercepted by Customs officers at the Arrival Hall of the Hong Kong International Airport on 30 October 2013.  Although he was in possession of two suitcases, he did not have the keys to open the locks of those suitcases. Entry to the suitcases was forced, revealing the presence of the cocaine. It had an estimated market value of $16,594,050.

3.  Having been arrested and cautioned on suspicion of unlawfully trafficking in dangerous drugs the applicant said, “I am wrong, I would never carry goods for others again”.  He added “The goods are drugs”.

4.  A check of the airline booking records revealed that the applicant had travelled with Chim Kwok-keung from Sao Paulo to Hong Kong via Singapore.  About 25 minutes later Chim was intercepted by Customs officers. Although no dangerous drugs were found in his possession, he was in possession of four keys, which fitted and unlocked the two suitcases found in the possession of the applicant.

Mitigation

5.  The most significant features of mitigation advanced on behalf of the applicant were that not only had he pleaded guilty but also he had given assistance to the authorities in relation to Chim.  In particular, he provided them with a non-prejudicial witness statement, as a result which he had been listed as a witness for the prosecution on the back of the indictment in the prosecution of Chim.  However, on arraignment on 26 January 2015 Chim had pleaded guilty, as a result of which the applicant was not required to testify.   Mr  Lee  Kwok  Fu, who appeared for the applicant at trial, drew the attention of the court to the judgment of this Court in HKSAR v Kay Sik Hong, Billy[1]to support his submission that, if the judge was against his primary submission that the applicant ought to be afforded a discount of 50%, the applicant was entitled at least to a discount in the range of 40%-45%.

Reasons for sentence

6.  Having averted to the guidelines for sentence in respect of unlawfully trafficking in cocaine set out in the judgment of this Court in HKSAR v Abdallah[2] the judge said that the 13.73 kg of cocaine in which the applicant trafficked unlawfully fell in the band of 4 to 15 kg for which the Court said that the range of sentence was 26 to 30 years’ imprisonment.  She noted that 13.73 kg of cocaine was at the “top end of the bracket.”  In addition, she noted that this Court had indicated that, where the unlawful trafficking involved 1 kg of cocaine or more and there was involved an international element, an enhancement of sentence of not less than 2 years’ imprisonment was to be expected.  Nevertheless, she said :[3]

“ …given the high starting point, I am not in favour of a straitjacket mathematical approach.”

Starting point

7.  In the result, the judge stipulated a starting point for sentence of 30 years’ imprisonment.

Discount

8.  Having acknowledged that the applicant was entitled to a discount of sentence to reflect his plea of guilty, the judge said that she accepted that the applicant’s “willingness to testify was pivotal to Chim’s guilty plea” [4].  Nevertheless, the judge went on to observe that:[5]

“ ….it is clear that the prosecution could still make out their case against Chim without the defendant’s evidence on both circumstantial evidence as well as Chim’s own cautioned statement.”

9.  In rejecting the submission that the applicant was entitled to a 50% discount of sentence, the judge said that was:[6]

“ not realistic as this is only reserved for the ‘super-grass’ category.”

10.  In the result, the judge stated that she afforded the applicant a discount of sentence of 40% from that taken as the starting point.  Accordingly, she imposed a sentence of 18 years’ imprisonment on the applicant.

Ground of appeal

11.  The single ground of appeal advanced by Mr Philip Ross was that the judge erred in affording the applicant a discount of 40% only.  He submitted that the appropriate discount, given his assistance to the authorities, was 45%.  In his oral submissions, Mr Ross reminded the Court that the offence for which Chim was to stand trial at which the applicant was to be a witness was a most serious offence.  That was relevant to the issue of the quantification of the discount of sentence to be afforded to the applicant.  Further, he submitted that the judge’s decision to afford the applicant a discount of only 40% from the starting point might well have been coloured by the mistake that she made in saying that a discount of 50% is only reserved for the ‘super-grass’ category.

Respondent’s submission

12.  Mr Nicholas Wong, for the respondent, accepted that it was well established that an accused who had provided assistance without testifying in court should be given a discount of between 40% and 45%[7].  He suggested that matters that were relevant to the discount to be afforded to the applicant were that:

(i) the arrest of Chim was not attributed to the assistance given by the applicant; and

(ii) the prosecution had a case against Chim, based on his out-of-court admissions and the circumstantial evidence, without the applicant’s evidence.

13.  However, Mr Wong accepted that it was to be assumed in favour of the applicant that his willingness to testify against Chim was a factor that caused Chim to plead guilty.

A consideration of the submissions

14.  As Mr Ross pointed out in his submissions in the judgment of the Court of Final Appeal delivered by Li CJ in Z v HKSAR the practice of the Court of Appeal in affording a discount of sentence for assistance given by an applicant to the authorities was addressed:[8]

“ The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities.  It has used various percentages of discount for different degrees of assistance.  It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information.  HKSAR v Y [2005] 3 HKC 337 at 340.  (Compare its earlier decision in HKSAR v Ng Shek-Yu (CACC 178/2000 unreported, 1 March 2001) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.)  Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one third reduction for pleading guilty).  HKSAR v Lee Yat-Fan(CACC 414/1999 unreported, 30 May 2001).  Where the level of co-operation is such as to place the appellant in the “supergrass” category, a maximum discount of two-thirds has been used.  R v Chan Fu-kui[1986] HKLR 967 at 968, HKSAR v Ng Shek-Yu (at p 3).”

15.  Mr Ross was correct to point out the judge fell into error stating that a discount of 50% from the starting point for sentence “is only reserved for the ‘super-grass’ category.”  There is no dispute that such a person is entitled to a discount of up to two-thirds of the starting point taken for sentence.  However, we do not accept his contention that played a part in the actual discount the judge afforded the applicant.  The judge was merely rejecting the unfounded submission that the applicant was entitled to a discount of 50%.  The question to be answered is whether a discount of 40% is appropriate.

16.  It is to state the obvious to note that the actual discount afforded to an applicant is necessarily fact sensitive.  It is clear that the appropriate range of discount of sentence, where a defendant has provided assistance to the authorities but without being required to testify, is in the range of 40% to 45%.  In those circumstances, this Court is not much assisted by being referred to judgments of this Court dealing with sentences imposed in the unique factual circumstances of other cases.  It is the factual situation of the applicant that is determining.

17.  In the case of the applicant, Chim had been detained by the authorities without any assistance of the applicant.  He had been found in possession of four keys that fitted an unlocked the previously locked suitcases found in the possession of the applicant.

18.  The strength of the prosecution case is made clear from the written Opening in Chim’s case. The prosecution relied on powerful circumstantial evidence, in particular that Chim was found in possession of keys that fitted the locked suitcases in the possession of the applicant, together with Chim’s admissions.  Those admissions were highly relevant to the circumstantial evidence, notwithstanding the fact that Chim denied knowledge of dangerous drugs in the two suitcases found in the possession of the applicant.

19.  The exercise of opening and re-locking those suitcases with those keys having been carried out in the presence of Chim, Chim was arrested and cautioned in respect of an offence contrary to the Dangerous Drugs Ordinance.  Chim admitted that the keys were for opening the two suitcases in the possession of the applicant, whom he was accompanying.  However, he asserted that he did not know what was inside the suitcases.  He said that he and the applicant were to deliver those suitcases to the car park of the Marco Hotel in Canton Road.

20.  In a video recorded interview conducted of him, Chim said that knowing the applicant was in financial difficulties he had introduced him to a person he called Sing Muk.  The latter arranged for the two of them to travel to Brazil, providing them with airline tickets and making hotel bookings.  He gave each of them US$3,000.  Chim said that Sing Muk had given him $10,000 as a reward for introducing the applicant to Sing Muk.  The three of them travelled to Brazil together.  He believed that Sing Muk had given the applicant “something to bring back”.  Sing Muk had entrusted him with the four keys to the two suitcases found in the possession of the applicant.  However, he said that he did not open the suitcases because “I feared that if I turned the key.  Bang.  Something will pop out and scare me to death.”

21.  The prosecution said that it was its case that Chim was not being frank when he denied knowing or believing the suitcases to contain drugs.  However, clearly they relied on his other admissions in relation to the circumstances in which the two of them had travelled from and then to Hong Kong to invite the jury to infer that Chim knew that there were dangerous drugs in the two suitcases.

22.  Clearly, in all those circumstances the judge was entitled to determine of the evidence against Chim that “it is clear that the prosecution could still make out their case against him without this defendant’s evidence on both circumstantial evidence as well as Chim’s own cautioned statement.”

23.  Needless to say, it is not known why Chim pleaded guilty. But, the judge was entitled to have regard to the strength of the prosecution’s case, absent the evidence of the applicant, in determining the level of discount to which he was entitled for the assistance he had given the authorities.  Today, Mr Ross informed the Court of a matter that was not before the judge, namely that in prospect of the trial it was understood that the applicant had intended to contest the admissibility of his out-of-court statements at his trial.

24.  Nevertheless, we are satisfied that in all the circumstances the judge was entitled to afford the applicant a discount of 40% only from that taken as a starting point for the sentence.  There is no merit in the proposed grounds of appeal.

Conclusion

25.  Accordingly, we refuse the application for leave to appeal against sentence.

[1] HKSAR v Kay Sik Hong, Billy [2014] 1 HKLRD 812, at paragraph 65.

[2] HKSAR v Abdallah [2009] 2 HKLRD 437.

[3] Appeal Bundle, page 80.

[4] Appeal Bundle, page 8 T.

[5] Appeal Bundle, page 9 A-B.

[6] Appeal Bundle, page 9 C.

[7] HKSAR v KAY Sik-hong Billy [2014] 1 HKLRD 812, paragraph 65.

[8] Z v HKSAR (2007) 10 HKCFAR 183, paragraph 23.