HKSAR v. KAI CHI CHUNG and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.259
(Criminal)

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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 1st applicant (A1) in this matter was the 1st defendant and the 2nd applicant (A2) was the 4th defendant in an indictment for trafficking in a dangerous drug which alleged that they, with two others, on 7th August 1996, at the junction of Dundas Street and Portland Street, Mongkok, unlawfully trafficked in 50.37 grammes of a crystalline solid containing 45.41 grammes of methamphetamine hydrochloride. A1 pleaded guilty to that count and A2 pleaded not guilty. A1 was sentenced to imprisonment for six years and he now seeks leave to appeal against that sentence. A2 was sentenced to imprisonment for nine years. He now seeks leave to appeal against both conviction and sentence out of time.

2. A2 originally appealed against his conviction but he withdrew that appeal and appears today seeking to be allowed to abandon that withdrawal. After he had withdrawn his appeal he made an allegation that the instructing clerk of his solicitors had manufactured his defence. This was a serious allegation. This court formed the impression, which it now appears was mistaken, that it was being put forward upon the basis that he had a real defence which might have established his innocence but which was not advanced because his solicitors clerk manufactured a sham defence which led to his conviction. It was upon this basis that we directed that affidavits were to be filed by his counsel and the solicitor's clerk commenting upon the allegation. At the hearing of the appeal the applicant gave evidence to substantiate his complaint. When so doing he freely admitted he was guilty of the offence. It then became apparent that he was not complaining of his conviction occasioned by a sham defence but was, in fact, complaining that he had not been told by his solicitors clerk that he did not have any real chance of success, and that if he had been told he would have taken that advice, would have pleaded guilty and would have been entitled to the same one third discount that was given to his fellow defendant. His concern is that his failure to plead has caused him to lose that discount.

3. As he had admitted guilt, we did not consider that we were called upon further to pursue the application for leave to withdraw his abandonment of his appeal against conviction.

4. He is now asking us, when considering sentence, to take into account the circumstances which he says obtained when he pleaded not guilty. The fact of the matter is that he pleaded not guilty when he knew full well that he was guilty and did so in an attempt, to use his own words, to "obtain acquittal and restoring reputation". Given those circumstances he is not entitled to benefit of any sort from a suggestion that he was not properly advised by the solicitor's clerk. We wish to make it plain that we make no finding as to the truth of that complaint.

5. We refuse his leave to withdraw his abandonment of his appeal against conviction.

6. We turn now to the question of sentence.

7. Both of the applicants are represented by Mr. Whitehouse. The grounds really are two: (i) that there was failure by the judge to make "allowance for the fact that the offence was committed at the instigation of the police and accordingly the offence would not have taken place apart from the initiative of the police officer concerned" and (ii) that the starting point of 9 years imprisonment was too high.

8. We deal firstly with the second ground. There is no merit in it whatsoever. The starting point was an entirely proper one in accordance with the guidelines that have been laid down by this court.

9. We turn then to deal with the suggestion that the offences were instigated by police officers. The question is: "Was there entrapment?" The proper test is set out in R. v. Birtles [1969] 9 Cr.App.R.(S) at 342. What a sentencing court must ask itself is whether there was any real likelihood that the appellant was encouraged to commit an offence, which he would not otherwise have committed. In the present case we say without hesitation that there was no such likelihood. When the police officer posed as a customer hoping to purchase drugs he was setting a legitimate trap. There was, we are satisfied, no element of entrapment in the present case such as would attract any discount from the proper sentence.

10. There is no merit in this application.

11. Finally we observe that an appellate court must be careful that it does nothing which would discourage the police from setting legitimate traps to apprehend offenders who are intend upon committing offences. This is particularly so in the case of those who are selling dangerous drugs.

12. The application for leave to appeal against sentence of A1 is refused. A2's application for leave to appeal against sentence out of time is also refused.