HKSAR v. NG KA HIN

CACC 160/2017

[2018] HKCA 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 160 OF 2017

(ON APPEAL FROM HCCC 528 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  On 12 December 2014 the applicant pleaded guilty at Eastern Magistrates Court to a count of unlawfully trafficking in a dangerous drug, namely, 5.98 kilogrammes of a solid containing 4.82 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Following his Committal for Sentence he appeared before Deputy High Court Judge D’ Almada Remedios (“the judge”), as D’ Almada Remedios J then was, on 17 June 2015, and was sentenced to 18 years and 8 months’ imprisonment.

2.  On 29 May 2017 he filed, out of time, a Notice of Application for Leave to Appeal (Form XI) against sentence.  By then the application was approximately 1 year 10 months out of time.

3.  At the hearing of the application we granted the applicant an extension of time and allowed the application for leave to appeal.  We set aside the sentence of the judge and in its place imposed on the applicant a sentence of 14 years’ imprisonment.  We said we would subsequently hand down our reasons for doing so and this we now do.

The background to the offence

4.  The Summary of Facts which was admitted by the applicant and used for the purpose of his sentencing revealed that the applicant was intercepted at the Green Customs Channel of the Arrival Hall at Hong Kong International Airport upon arrival on a flight from Bangladesh on the morning of 6 July 2014.  Following a search of his baggage, a plastic packet containing white powder was found concealed under the lining of his suitcase. 

5.  The white powder was subsequently tested and confirmed to be 5.98 kilogrammes of a solid containing 4.82 kilogrammes of cocaine.  It had a street value estimated at HK$6,273, 020.

6.  The applicant was arrested and taken to Police Headquarters where he participated in a video recorded interview in the course of which he stated that:

(a) he had accepted an offer from an acquaintance, Joe Chan, to smuggle the cocaine from Brazil to Hong Kong in return for a reward of HK$ 70,000, as he was then in debt to the amount of HK$400,000;

(b) he was introduced by Joe Chan to his two bosses, Tony and Jerry, who took his passport away and communicated with him via “WhatsApp” and “Wechat” thereafter.  On one occasion Tony accompanied the applicant to the Bangladesh Consulate to apply for a visa;

(c) he met Tony and Jerry again in late June 2014, at which time he was given the air tickets and hotel vouchers and briefed on what he had to do to bring the cocaine back to Hong Kong;

(d) the applicant arrived in Brazil on 2 July 2014, and Jerry arranged for him to collect from a person there the luggage containing the concealed cocaine;

(e) the applicant then returned to Hong Kong via Dhaka after leaving Brazil on 4 July 2014;

(f) he had not yet received his reward other than US$1,000 pocket money given by Jerry;

(g) he was very remorseful for having committed the offence. 

7.  The Summary of Facts concluded with an admission by the applicant that he had trafficked in the drug seized.

The mitigation

8.  The applicant’s counsel informed the judge that the applicant was aged 25 at the time of offence and had a clear record.  Prior to attending university he had performed well academically, but after being admitted to university, his worries and concerns over his mother’s health, who in 2011 was diagnosed with a brain disease, affected his study and he eventually failed to graduate.  The applicant faced financial stress from his mother’s medical expenses and his own expenses and this tempted him into committing the present offence.  The applicantwas very remorseful, he had disclosed everything to the police and whilst in custody was studying an English course offered by the Open University.

The judge’s Reasons for Sentence 

9.  The judge was informed by the prosecutor that the applicant would testify as a prosecution witness in a trial which would take place in April 2016.  However, as that was almost a year away the judge decided that the appropriate course for her was to proceed with the sentencing of the applicant without taking into account this prospective assistance.

10.  The judge took into account the personal background of the applicant and adopted a starting point of 26 years’ imprisonment which she then enhanced by 2 years’ imprisonment for the international element.  From a final starting point of 28 years’ imprisonment the judge then allowed a one-third reduction for the applicant’s guilty plea and sentenced the applicantto 18 years and 8 months’ imprisonment.

The Perfected Grounds of Appeal

11.  There is only one ground of appeal which is that by virtue of the applicant’s assistance to the prosecution by testifying against Cheung Chi Wong (“Cheung”), who is the person “Tony” who was mentioned by the applicant in his video record of interview, the applicant is entitled to a sentencing discount greater than the one third discount afforded for his plea of guilty. 

12.  The assistance provided by the applicant was placed before the court in an affirmation affirmed on 3 November 2017.  This explained why it was that the applicant was out of time in filing his application for leave to appeal and the basis for his application for leave to appeal his sentence.  The applicant applied for the affirmation and the exhibits produced by it to be adduced as fresh evidence under section 83V of the Criminal Procedure Ordinance, Cap 221.

13.  The applicant’s affirmation set out the assistance rendered by the applicant which consisted of:

(a) the provision of non-prejudicial statements dated 24 February 2015, 18 March 2015 and 1 March 2017;

(b) participation in an identification parade on 6 March 2015 in which he positively identified Cheung;

(c) testifying as a prosecution witness in a preliminary enquiry that was held for HCCC 434/2015 on 7 October 2015; and

(d) testifying as the key prosecution witness in HCCC 434/2015 and 126/2016 (Consolidated) against Cheung which led to him being convicted and sentenced to 30 years’ imprisonment.

14.  Ms Queenie WS Ng, counsel for the applicant, submitted that the applicant had been disturbed by Cheung between March 2015 and June 2015, whilst remanded in Lai Chi Kok Reception Centre.  In this incident Cheung offered to pay him HK$200,000 for not testifying against him and this caused the applicantto worry about his family members’ safety. 

15.  As Cheung was successfully convicted as a result of the applicant’s assistance to the prosecution, it was submitted that the applicant should be given the full 50% discount of his sentence as stated in Z v HKSAR[1]. At the hearing of the application Ms Ng confirmed that she did not seek any discount greater than 50% and that this discount should be made from a starting point of 28 years’ imprisonment. 

The respondent’s submissions

16.  Mr Andrew Cheng, Senior Public Prosecutor, for the respondent, did not object to the applicant’s applications for an extension of time and to adduce new evidence.

17.  Mr Cheng confirmed that the applicant had given the assistance that he claimed and acknowledged that his testimony was instrumental in securing the conviction of Cheung. 

18.  In reference to the applicant’s claim that there had been an attempt to bribe him from giving evidence, he submitted that there was no evidence suggesting that by assisting the authorities the applicant and/or his family members had exposed themselves to any threat of physical harm and that there was no basis to justify awarding the applicant a discount greater than 50%.

19.  However, he made clear at the hearing of the application that he accepted that, by virtue of his assistance, the applicant was entitled to a total sentencing discount of 50%. 

Discussion

20.  The first question that we must determine is whether to grant the applicant the extension of time that he seeks in order to pursue his application for leave to appeal.  

21.  The principles to be applied in determining whether an extension of time should be granted are those enunciated by Silke VP in R v Wong Kai Kong[2]. These principles apply to the situation of an applicant who has provided post-sentence assistance to the authorities as they do to any other applicant who for any other reason is seeking leave to appeal out of time.  In HKSAR v W[3] Stock JA said:

“16. We are satisfied that in these cases, where a reduction in sentence is sought by reason of post-first-instance assistance to the authorities, the fact that time for filing the notice of application has passed is no more conclusive of an application for leave to appeal than it is in the normal case. The first question, always, is whether time should be extended. To that end, the starting principles are those suggested by Silke VP in R v Wong Kai Kong [1990] 1 HKC 279, at p 3:

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17. The application of these principles must necessarily be case-specific, and in a case where there has been substantial assistance to the authorities since sentence at first instance, there can be no doubt but that the public interest requires that credit be given to an applicant who has provided such assistance and that it be known that such assistance is available, and that the general measure of the credit to be gained should be known (even though in some cases the fact and nature of the assistance will necessarily be a matter that has to be kept confidential). These objectives can best be achieved by the courts, and in addition, there are other reasons suggested by Litton JA in Reid for the courts to act rather than the Executive where that can properly be done. So it will inevitably be the fact that in cases within the present category, the merits will play a large part in the decision whether to extend time. Yet that cannot guide the decision to the exclusion of all other factors. The longer the passage of time, the less likely is it that time will be extended unless there be given sound reason for the delay.” (Emphasis added.)

22.  The point made by Stock JA about the length of delay still being a relevant consideration was the subject of recent comment by Macrae JA in HKSAR v Kilima Yusuph Abbas[4]in the context of an application to treat an abandonment as a nullity in order to pursue an application for leave to appeal sentence based upon alleged post-sentence assistance to the authorities.  At paragraph 29 of his judgment Macrae JA emphasized the importance of finality to the criminal process.  As is apparent from his discussion, finality is a key element not just to the efficiency and effectiveness of that process, but also to the justice of that process.

23.  In the present case the delay is approximately 1 year 10 months.  However, it was known at the time of sentence that the applicant would be testifying in an up-coming trial but the judge, quite properly, was not willing to delay the conclusion of the sentencing process by deferring sentence until after the applicant had testified in that trial.  In these circumstances we are satisfied that this is an appropriate case to grant the extension of time the applicant seeks in order to apply for leave to appeal his sentence.

24.  Being so satisfied the next issue is whether there is any merit in the applicant’s ground of appeal.  This is straightforward as there is no dispute as to either the nature or value of the assistance that the applicant has provided.  We are, therefore, satisfied that the applicant is entitled to an additional discount on sentence for the assistance he provided to the prosecution in the trial of Cheung.  

25.  Since no complaint is made in respect of the judge’s starting point of 26 years’ imprisonment and the enhancement of that starting point by 2 years to allow for the international element, we adopt the same final starting point of 28 years’ imprisonment that was adopted by the judge.

26.  As accepted by the respondent the applicant is entitled to have this starting point reduced by 50% for his assistance to the police and to the prosecution.  This results in a final sentence of 14 years’ imprisonment.    

Conclusion

27.  For these reasons we granted the application for an extension of time and allowed the application for leave to appeal.  Treating the hearing of the application as the hearing of the appeal, we allowed the appeal, set aside the sentence of the judge and substituted for it a sentence of 14 years’ imprisonment.