HKSAR v. FONG TSIE LUN

HCMA967/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.967 OF 1999

(ON APPEAL FROM TMCC 2487 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 1 September 1999 for conspiracy to traffick in a dangerous drug and sentenced to 18 months' imprisonment. He now appeals that sentence.

2. The facts were that he was arrested with the others during an arrest and search operation conducted by the Independent Commissioner Against Corruption ("ICAC") in Yuen Long. When interviewed under caution, he admitted that a syndicate head in Yuen Long asked for his assistance in selling dangerous drugs to which he agreed. Since February 1998, the appellant and another drug addict were employed to sell heroin in Tuen Mun. The other man was responsible for handling the drug while the appellant was responsible for supervising the drug peddlers. On 10 February 1998, they ceased the business in Tuen Mun when they were driven away from the vicinity by local triads. Apparently, only some 10 straws of heroin were sold during the period.

3. These facts were taken into account by the magistrate when he considered the sentence that he ought to pass. At that time, the appellant undertook to give evidence against Madam Chan, who was the head of the syndicate who had recruited him to sell drugs in the area. The matter came before me on 1 December 1999 and I adjourned it to enable that trial to take place so that the evidence given by the appellant could be probably assessed.

4. That matter came on for trial recently but was unable to proceed because Madam Chan absconded prior to trial and presently the trial is awaiting medical reports upon the other accused. I am informed by Mr Madigan for the prosecution that he accepts that the appellant's name was on the list of witnesses, that he had given a statement to the police containing evidence of use to the prosecution in that matter and that there was every intention to call him to give evidence had the trial proceeded. I am satisfied that he would have given evidence and would have given evidence of value to the prosecution in that trial, leading to the possible conviction of Madam Chan.

5. I am further advised by Mr Madigan that there is another trial in which the appellant may well give evidence which will be of assistance to the prosecution. I am prepared to take both that and the trial which has been presently adjourned, because of the escape of Madam Chan, into account when considering what sentence should be passed on this matter as a result of the appeal.

6. The normal discount given for a plea of guilty is approximately one-third : that encompasses the normal co-operation that one would have expected of a person showing remorse at the time of the plea. Therefore, normally a one-third discount will be given where not only is there a plea of guilty, but a confession has been given to the police and generally the accused in that case has been co-operative with the police from the time of his arrest until the time of prosecution.

7. Further discounts are warranted when assistance is given to the police and the prosecuting authorities in cases involving serious offences where the value of the evidence will be high. I am satisfied that in respect of Madam Chan, this appellant would have been able to give such evidence. Where more than one case is involved, as I am told by Mr Madigan, as is contemplated with this witness, the discount can be further increased.

8. In this case, it seems to me that the magistrate in adopting a starting point of 2 1/2 years' imprisonment arrived at the appropriate starting point given the nature of the offence with which the appellant was charged. It also seems to me that given the assistance which the appellant is presently giving and will give to the authorities and the general circumstances beyond his control which may well result in his having finished his sentence before he is able to complete the undertakings that he has given in respect of the second case, through circumstances which are no fault of his, it is appropriate to give him a further discount.

9. Therefore, I allow the appeal against sentence and imposed in lieu of the sentence imposed by the learned magistrate, a sentence of 13 months' imprisonment.