HKSAR v. YU YEM KIN

CACC168/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 168 OF 1997

(ON APPEAL FROM HCCC 379 OF 1995)

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J U D G M E N T

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

1. The applicant in this matter seeks leave to appeal against an overall sentence of 15 years. That sentence came to be imposed after a somewhat involved series of trials. These started with the trial in High Court Case No.111 of 1993 which involved three counts of conspiracy.

2. The conspiracy revolved around the manufacture and distribution of the drug "Ice" which was being manufactured in China. It also involved the notorious "Ice Queen". The result of that trial, before Mr. Justice Chan and a jury, was that the applicant was convicted on each of the conspiracy counts and was sentenced to 8 years' imprisonment on the first, 8 years' imprisonment on the second, with 2 years consecutive bringing the total to 10 years, and then to 16 years' imprisonment on the third, with 6 years consecutive, bringing the overall total to 16 years. A confiscation order was also made in the sum of $12,000,000.00 with, in default of payment, 6 years' imprisonment.

3. The applicant appealed against those convictions. He was successful in relation to count 3 and a retrial was ordered. He then sought leave to appeal to the Privy Council but that was refused.

4. He was re-arraigned before Pang J. on the third count, pleaded guilty and was sentenced to imprisonment for 10 years of which 5 years was also ordered to be concurrent to the other sentences making a total of 15 years. It is against that overall total of 15 years that he now appeals. He complains that despite his plea, he only received a credit of one year. He also complains that he has since he was dealt with by Pang J. given valuable evidence for the prosecution in two matters. One was a conspiracy trial and other was an application in which the notorious "Ice Queen's" property was confiscated.

5. What we must ask ourselves is whether the overall sentence of 15 years was, in circumstances as we now know them, a proper sentence. Chan J. calculated the overall sentence of 16 years by making 3/8 of the sentence on the third count consecutive. We are satisfied that the same factor should be applied to the sentence of 10 years which Pang J. imposed on that count. The sentence of 10 years cannot be criticized, it having been reduced because of plea and substantial co-operation, which the applicant had, at that time, given to the authorities. He had not, at that time, given any evidence. His later cooperation involved the giving of evidence. If we apply the 3/8 factor, then we arrive at the sentence of 14 years, and not the 15-year sentence which was imposed.

6. We must now take into account the further substantial further cooperation of the applicant which involved giving evidence. Convictions did not result from the conspiracy trial but the applicant did not, in any way, resile from his proof of evidence. Further, substantial confiscation orders were made after he gave evidence in that application.

7. When assessing the credit to be given for this further assistance, we have to say immediately that we do not consider that he has placed himself in the category of a supergrass. We are, however, as Mr. Ross has urged, satisfied that powerful criminal forces exist which may well seek to revenge themselves upon him when he is released. Mr. Ross asks us to treat this as a substantial factor and, upon consideration, we are satisfied that we should do so.

8. We also give weight to the valuable evidence he has given. We are satisfied that a further reduction in the order of 25% would be appropriate which would reduce the sentence overall to one of 10 years. The appropriate result can best be achieved by ordering that the 10 year sentence which Pang J. imposed be ordered to be concurrent with the 10 year sentence on counts 1 and 2 making an overall sentence of 10 years.

9. The application is allowed. The hearing is treated as the hearing of the appeal and the sentence is reduced as indicated.