R. v. CHAN CHI MING

IN THE COURT OF APPEAL

1995, No. 90
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. The applicant Chan Chi-ming pleaded guilty before Deputy Judge Pang in the High Court on two counts of trafficking in dangerous drugs. In relation to the first count he was sentenced to six years' imprisonment and in relation to the second count 15 years concurrent with the first, making a total of 15 years' imprisonment.

2. The offences occurred on 12 May 1993. The police were then keeping observation on a flat on 8/F of No. 13 Fuk Wing Street, Shamshuipo. At 9.35pm the applicant came out of the flat and was intercepted by the police. When searched there was found on him a block of a mixture weighing 469.97 grammes containing 355.62 grammes of salts of esters of morphine. The applicant had a bunch of keys on him which fitted the iron grille and the wooden door to the flat. The quantity found on the applicant constituted the amount charged in the first count. Inside the flat the police found large quantities of heroin and things like cutting additives, plastic bags, a postal scale and a blender: equipment used by drug traffickers. The total quantity of dangerous drugs found in the flat was 2.207kg of a mixture containing 1.996kg of salts of esters of morphine. This constituted the amount charged in the second count.

3. The applicant was aged 29 on conviction and had previous convictions for drug offences. The applicant was represented by counsel at the trial. In mitigation counsel made submissions to the judge to this effect: that he was merely a courier; that he was not the "big boss" and had told the police the name of his "big boss" which was HO Wai-shing; he had received five visits altogether from the Narcotics Bureau whilst he was detained at Lai Chi Kok Remand Centre, and had further given to the police telephone numbers and paging numbers relevant to HO Wai-shing. None of these facts however were verified at the trial and the judge did not ask the prosecutor whether any of these facts were accepted as true.

4. The judge in sentencing the applicant said this:

"In assessing the appropriate sentence, I have also considered that you had given information to assist the officers of the Narcotics Bureau in investigating the present offences."

5. In the circumstances of the case, the judge had gone too far in accepting the statements of counsel. The judge never ascertained whether any so-called assistance given to the police yielded any result. This court has said more than once that where assistance is given to the police that only weighs substantially in the scales if the assistance turned out to be of use to the police in their investigation of crime. The judge regrettably in this case did not verify that fact nor did counsel for the Crown assist in that regard. We have now been told in this court by Ms Crabtree (who did not appear in the court below) that although it is true that the Narcotics Bureau officers did make five visits to the applicant whilst he was detained at Lai Chi Kok Remand Centre the information that he gave led nowhere.

6. In normal circumstances this "assistance" would not have been regarded as substantial mitigation in the applicant's favour. The question we have to decide is whether, in the circumstances of this case, it would be appropriate for this court to visit upon the applicant the consequences of the erroneous approach in the court below. The judge gave to this applicant a discount of 10 years from a starting point of 25 years' imprisonment. Clearly having regard to the very substantial quantity of drugs involved the starting point of 25 years was appropriate. However, a discount of as much as 10 years would normally have been given only to a convicted drug trafficker who had rendered substantial assistance. On the face of the sentence this discount was wrong. However, the facts not having been properly explored in the court below, we feel that the consequences should not be visited upon the applicant now in this court. The applicant can consider himself lucky in this regard.

7. The application for leave to appeal against sentence is dismissed.