THE QUEEN v. CHOY CHI TAK

IN THE COURT OF APPEAL

1995, No. 527
(Criminal)

-----------------------

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against the sentences of imprisonment imposed upon him for trafficking in dangerous drugs. He was charged with three offences - two for trafficking in a dangerous drug and one for manufacturing a dangerous drug. He pleaded guilty to the two trafficking counts and was sentenced to 20 years' and 12 years' imprisonment on each concurrent. He pleaded not guilty to the manufacturing count. The prosecution did not proceed with this count and it was left on the court file.

2. According to the agreed summary of facts the applicant was seen by two police officers walking in the street at Kwong Cheong Street, Kowloon on the morning of 27 May 1994. He was holding a plastic bag. The officers were suspicious and approached him. The applicant attempted to run away. He was pursued by the officers and after a struggle he was apprehended. The officers searched the bag and found what they suspected might be dangerous drugs. The applicant did not reply to the questions put to him by the officers.

3. The officers found a management fees receipt on the applicant which related to a flat on the 11/F of Block E, Fung Po Building. Police officers took the applicant to this flat and when they got there the applicant provided the number of the combination lock to the grill of the door. Also the key found on the applicant fitted the door itself.

4. On entering the premises the officers found the dangerous drugs referred to in the 2nd charge and equipment and paraphernalia indicating that a manufacturing process might have been undertaken in the flat.

5. The amount of dangerous drugs found in the plastic bag carried by the applicant which is described in the 1st charge amounted to 1,022.56 grammes of a mixture containing 281.51 grammes of salts of esters of morphine.

6. The quantity of dangerous drugs found in the flat was 2,778.96 grammes of a mixture containing 1,216.59 grammes of salts of esters of morphine.

7. Immediately following the applicant's guilty pleas the prosecution presented another case involving dangerous drugs in which the applicant was a defendant. According to the perfected grounds of appeal which have been lodged by Mr Lavac for the applicant, the applicant gave evidence in that trial against one of his co-accused Mr Chow Siu Kwong. Before us Mr Lavac corrected himself. The applicant only implicated these men. At the conclusion of that trial the applicant was acquitted.

8. Chow had attempted to get the applicant to take the blame for his offence. He offered him $½m and arranged for him subsequently to be beaten up. The applicant eventually decided not to go along with this deception. Notwithstanding this the applicant and Chow were charged with various offences. Chow absconded. We do not think the applicant can get any credit for implicating Chow in his evident. He was only being tried because he had agreed with Chow to take the blame for Chow's offences.

9. Mr Lavac also submitted that the applicant should receive a discount for assisting the police in their inquiries into the involvement of his alleged boss Mr Mak Siu Wing. A letter was produced from the Commander of Police which confirms that the applicant had been of assistance to them in this connection. However at the time of passing sentence Mr Mak had not been apprehended.

10. The trial judge Mr Justice Saied took cognisance of the very large amount of dangerous drugs seized and so far as the two counts were concerned passed concurrent sentences which took into account the totality principle. He used as a starting point 30 years' imprisonment and took off 1/3 for the applicant's early guilty pleas.

11. He did not give credit for the assistance the applicant had rendered the police as he thought that in the circumstances it was premature to do so. Mr Lavac submitted that this was not correct.

12. It is undoubtedly correct that the applicant gave information concerning Mr Mak. He should get some credit for this. Even though the information was not helpful in the event because the police knew about Tak from other sources.

13. We consider that the starting point was too high. In our view it should have been 24 years. Once the amount of 600 grammes is exceeded the amount of dangerous drugs involved is of less importance and the overall involvement of a defendant becomes a more significant factor.

14. He was entitled to the discount of 33%.

15. We also think he was entitled to a further discount for the information on Mak. The total sentence should have been 15 years. The application is allowed. Treating it as the appeal we quash the sentence of 20 years and substitute a sentence for 15 years.