HKSAR v. LAU PUI YAN, MIMI

CACC 101/2015

CRIMINAL APPEAL NO. 101 OF 2015

(ON APPEAL FROM HCCC NO. 254 OF 2014)

________________________

________________________

____________________

J U D G M E N T
____________________

1.  The applicant was convicted on her own plea on 12 March 2015 of one count of trafficking in a dangerous drug, namely, 124.94 grammes of a crystalline solid containing 112.46 grammes of methamphetamine hydrochloride, commonly known as “Ice”. On the same day, she was sentenced to 5 years and 4 months’ imprisonment by Deputy Judge Wilson Chan (“the judge”) in the High Court.

2.  By a Notice of Application for Leave to Appeal filed on 18 March 2015, the applicant applied for leave to appeal against sentence.

Facts admitted by the applicant

3.  At around 10:15 pm on 17 February 2014, police officers intercepted the applicant outside Ning Wah House, Lok Wah North Estate, Ngau Tau Kok in Kowloon.  Upon a search of the applicant’s handbag, six packets containing a total of 124.94 grammes of a crystalline solid containing 112.46 grammes of “Ice” were found.  The police also seized from the applicant’s person a mobile telephone and HK$960.90 in cash.

4.  The applicant was duly arrested.  Under caution, she admitted delivering the drug for a reward of HK$1,000.  In a subsequent video-recorded interview, the applicant further admitted under caution that:

(i) the substance found on her was “Ice”;

(ii) a person called “Ah B” had asked her to fetch an orange plastic bag from the bushes outside Tat Fung House at 8:00 pm and take it to a person called “Leung Jai”;

(iii) she was promised a payment of HK$1,000;

(iv) she was arrested before she could find “Leung Jai”; and

(v) the mobile telephone seized from her, and which she had used to contact “Leung Jai”, had been given to her by “Ah B”.

Mitigation

5.  In mitigation, it was submitted on the applicant’s behalf that:

(a) the applicant was 31 years of age and a single parent;

(b) she was unemployed at the time of arrest; and

(c) she committed the offence because she needed money to buy provisions for her son, and to pay for his school fees.

Reasons for sentence

6.  Having considered the sentencing guidelines for “Ice” set out in the Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, the judge correctly identified the applicable range of sentence for trafficking in 70 to 300 grammes of narcotic as 10 to 14 years’ imprisonment.  Given the quantity concerned, namely 112.46 grammes of narcotic, the judge adopted a starting point of 10 years and 8 months’ imprisonment. For the applicant’s plea of guilty and the other special circumstances in the case, he adopted a discount of 50% from the starting point.  Accordingly, the applicant was sentenced to 5 years and 4 months’ imprisonment.

Ground in support of the application

7.  It is the applicant’s contention that when passing the final sentence of 5 years and 4 months’ imprisonment, which represented a 50% reduction in sentence, that reduction should not have included the customary one-third discount for plea.^[1]

Respondent’s Submissions

8.  Ms Leung, for the respondent submits that no issue can be (or, indeed, is) taken by the applicant with the starting point adopted by the judge.  The sole ground of appeal is whether the usual one-third discount for guilty plea should or should not have been included in the 50% discount accorded her by the judge.

9.  Ms Leung accepts that the applicant has given assistance to the authorities, which can properly be described as valuable, although the applicant has not been required to given any evidence.

10.  In HKSAR v Y [2005] 3 HKC 337, the Court of Appeal stated at paragraph 9 that:

     “It is well established that those who enter a timely plea of guilty will receive a one-third discount and it is this which is topped up to 40 percent in the case of someone who has given valuable assistance.”

11.  In Z v HKSAR (2007) 10 HKCFAR 183, the Court of Final Appeal identified the factors relevant to the discount to be afforded to an accused for his assistance to the authorities:

     “13. In deciding whether the assistance given by the defendant to the authorities merits a discount in a particular case and if so, its extent, a number of factors should be taken into account. Broadly speaking, the most important factors usually include:

(a) The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

(b) The likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody, and danger to himself and his family after his release from prison.”

12.  The extent of reduction afforded to an accused for his assistance to authorities was discussed by the Court, at paragraphs 23 and 24 of its judgment, as follows:

     “23. 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 p. 340. (Compare its earlier decision in HKSAR v Ng ShekYu (unrep., CACC No 178 of 2000, [2001] HKEC 243) 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 YatFan (unrep., CACC No 414 of 1999, [2001] HKEC 662). 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).

     24. In the present case, the relevant figure is the usual discount of about 40% as the appellant had provided useful information but had not given evidence.  Its appropriateness has not been questioned in this appeal. …”

13.  In HKSAR v Herrera Jhorman [2013] 1 HKC 119, where the applicant had pleaded guilty, provided a statement to the authorities, and been willing to give evidence against his co-accused, although ultimately that proved unnecessary when his co-accused pleaded guilty, the Court upheld a discount of “slightly more than 40%” as appropriate.

14.  It is trite law, and made explicitly clear by the Court of Final Appeal at para 23 of Z (supra), that the usual one-third discount is included in the overall discount which would be allowed for the guilty plea and any assistance provided to the law enforcement authority.  It is clear from the judge’s reasons for sentence that he clearly bore in mind the applicant’s plea of guilty as well as the useful assistance she had given, when granting her a 50% discount from the appropriate starting point.

15.  Ms Leung submits that, given the nature and extent of assistance provided by her, and in the light of the above authorities, the overall 50% discount given to the applicant was a very generous one.

Consideration

16.  It is clear from the way that the judge expressed himself in his reasons for sentence that the discount for the applicant’s plea of guilty was included in the 50% discount from the starting point.[2] Had it not been so included, the judge would have given a wholly unrealistic and excessive discount for her assistance, which would have resulted in a manifestly inadequate sentence.

17.  Further, given the limited, albeit valuable, assistance she gave, the overall discount of 50% was on the authorities a very generous one indeed.  Such a percentage discount is normally reserved for those who not only plead guilty but are also required to give evidence, which the applicant did not.

Conclusion

18.  In the circumstances, there are no arguable grounds of appeal to warrant the grant of leave to appeal against sentence, and this application must, therefore, be refused.

19.  The applicant is duly advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Home-made grounds attached to Form XI

[2] Appeal Bundle, page 16B-D