HKSAR v. T

CACC 397/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 397 OF 2006

(ON APPEAL FROM HCCC No. 249 & 274 of 2005)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.  On 8 March 2005, the applicant, a Singaporean, came to Hong Kong with L and stayed at Room 1290 of the Harbour Plaza Metropolis Hotel (“the hotel”) in Wanchai.

2.  On 14 March 2005 at 1250 hours, the applicant and another Singaporean, T left Room 1290 of the hotel. T took a taxi to go to the Regal Kowloon Hotel (“the Regal Hotel”) and was arrested by customs officers.

3.  In Room 636 of the Regal Hotel which T occupied, customs officers found 40 cans inside a black case, each containing ketamine powder. In one of the cans, which bore the applicant’s fingerprint, there was 0.49 kilogrammes of a power containing 0.42 kilogrammes of ketamine.

4.  The applicant was arrested at the shopping arcade of the hotel on the same day and was taken to Room 1290 for a search. Custom officers found cash of about $710,000 ($690,000 in Hong Kong currency and $20,000 in other currencies), a sum equivalent to the mean market price of 3.006 kilogrammes of ketamine in March 2005.

5.  The applicant admitted that he was asked by L to come to Hong Kong with the money to buy ketamine for the purpose of re-sale.

6.  In May 2006, the applicant pleaded guilty to a charge of conspiracy to traffic in a dangerous drug and a charge of trafficking in a dangerous drug before Beeson J in the High Court.

7.  On the basis that the conspiracy charge involved just over 3 kilogrammes of ketamine and the trafficking charge involved just under ½ of a kilogramme, the judge adopted the respective starting points of 12 years and 6 years. The judge reduced the starting points by one-third to 8 years and 4 years respectively and further ordered them to be served concurrently. The total sentence imposed on the applicant is 8 years’ imprisonment.

8.  Almost three years later, in March 2009, the applicant sought an extension of time to apply for leave to appeal against sentence. In support of the application, the applicant also sought leave to adduce fresh evidence, in the form of his affirmation setting out the background of the case and the circumstances leading to his application for leave to appeal against sentence out of time.

Grounds of Appeal

9.  Mr Jonathan A-weng takes no issue with the sentences imposed by the judge. The only ground advanced in support of the application is that the applicant had provided information to the authorities and should therefore be entitled to a further reduction of sentence.

10.  In his affirmation dated 6 March 2009, the applicant claims that he obtained the information by eavesdropping on conversations of other inmates on outside underworld activities. The applicant further claims that the information he provided had led to the arrest, in July 2008, of two suspects, who were found to have trafficked in the respective quantities of about 150 grammes and 20 grammes of ketamine.

11.  Mr Eddie Sean, for the respondent, does not object to the application. He confirms that the applicant did provide information to the Customs and Excise Department leading to the successful prosecution of two traffickers involving respectively 11.62 grammes and 149.73 grammes of ketamine. Mr Sean suggests that a total discount of sentence of 40% is appropriate. Mr Sean further informs the court that with such further discount of sentence the applicant will be released in about three months’ time.

Discussion

12.  Although a defendant was sentenced on the materials before the court at the time of the sentence, the sentencing process did not stop until the appellate court finally dealt with it.

13.  On the other hand, for the sake of finality, events that occur after sentence should not normally lead to the re-opening of sentence otherwise cases may keep coming back to the court because of new or changed circumstances, thus creating an extra burden on the already strained judicial resources, and possibly undermining the solemnity and respectability of sentence imposed by the court.

14.  In R v Mak Chan Pui (CACC 483/1992, unreported), the applicant, having pleaded guilty in 1992 and then abandoned his application, sought to revive his application for leave to appeal against sentence in 1995 on basis that he had given evidence against a mastermind in 1994.  Mortimer JA adopted a robust approach and said that:

“As this Court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition to [the Executive] and not to seek further leave to appeal to this Court. This course is still open to this applicant. There are no grounds upon which this Court ought to allow this application which is refused.”

15.  Another equally robust but disparate approach was taken Re CW Reid [1994] 2 HKLR 14 when Litton JA (as he then was) said at p 24:

“The responsibility for the proper punishment of offenders rests with the courts. This is done by the application of guidelines and principles to the facts of the particular case: guidelines and principles, which the courts themselves have evolved over the years. When the court gives a defendant a discount of 50% of the sentence for the assistance he has rendered to the police in the prosecution of other offenders, or even a two-thirds discount for the super-grass – see, for instance, the observations of Roberts, CJ in R v Chan Fu-kui [1986] HKLR 967 at 968E to F – it articulates its reasons in open court, applying well-considered policy reasons to the treatment of offenders. As a matter of principle it seems to me that the practice of leaving it to the executive to deal with the proper discount…can only be justified if there is no other course the courts themselves can properly take, since the remission of sentence…is done behind closed bureaucratic doors and is the exercise of a purely executive function.

16.  Stock JA in HKSAR v W [2004] 3 HKC 376, a case relied on by Mr A-weng in his written submission, having reviewed a number of decisions, concluded that it is within the court’s discretion to decide if an extension of time for leave to appeal against sentence should be granted for assisting the authorities since sentence at first instance. Stock JA further opined that “the longer the passage of time, the less likely it is that time will be extended unless there be given sound reason for the delay”.

17.  Almost three years ago in 2006, the applicant was sentenced to 8 years’ imprisonment which was, as accepted by Mr A-weng, a proper sentence. The applicant asks for a reduction purely on the basis that he had provided useful information to the authorities.

18.  The applicant had provided neither the time when he obtained the relevant information nor the time when he provided the information to the Customs and Excise Department. He seemed to suggest that he always tried to eavesdrop on conversations between inmates and was able to surreptitiously gather information from them throughout his period of incarceration.

19.  The applicant said at para 11 of his affirmation:

“Nonetheless, there is no doubt that I had to work rather harder than the average informer at making some necessary connections and befriending various dubious characters from whom I slowly learnt that underworld activities on the outside are sometimes communicated to certain characters still incarcerated. Through much time and effort, I have therefore been able to extract pieces of information from which I can piece together and eventually provided to the Department.”

20.  The applicant suggested that he had given information to the authorities on many occasions, although only two of them led to successful operations.

21.  It appears that the applicant will continue doing what he had been doing, always gathering information to supply to the authorities with a view to gain sentence reduction.

22.  People should of course be encouraged to co-operate with the authorities and any useful information from prisoners on crime prevention and detection can be a factor likely to lead to a reduction of sentence.

23.  We are concerned, however, that it has been almost three years since the applicant was sentenced for the drug trafficking offences before he sought an extension of time to appeal against sentence. The applicant did not specify when he gathered the information or the time when he provided it to the authorities.

24.  According to the Customs and Excise Department, the applicant had provided information on eight occasions between 15 March 2005 and 8 August 2008.The applicant only applied for an extension of time to appeal in March 2009 and had not explained the delay of over 9 months.

25.  Further, the fact that the applicant intends to continue doing what he had been doing means that there can be repeated similar applications in the future.

26.  The applicant’s case can be left to the Executive who can deal with it less formally and possibly more effectively. The applicant can, of course, pursue the matter by petitioning the Chief Executive and that such petition will likely be referred to the Long-term Prison Sentences Review Board with both its President and Vice-President being High Court Judges. We have no doubt that the matter, if raised by the applicant, will be properly attended to.

27.  But for the fact that, with the maximum discount of 40% as conceded by Mr Sean, the applicant will be released in about three months’ time, we would not have been persuaded to entertain the application for an extension of time to apply for leave to appeal against sentence.

28.  It is because of that factor alone that we would grant the application and allow the applicant’s appeal by reducing his sentence on the charge of conspiracy to traffic in a dangerous drug to 7 years and 2 months, and that on the charge of trafficking in a dangerous drug to 3 years and 8 months. We also order the sentences to be served concurrently. The total sentence on the applicant is reduced from 8 years to 7 years and 2 months.