R. v. SO YIU PING and Another

IN THE COURT OF APPEAL

1995, No. 462
(Criminal)

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J U D G M E N T

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Yang, C.J.:

1. The two applicants are So Yiu Ping ("So") and Hon Kai Chuen ("Hon"). Each of the applicants was sentenced to concurrent terms of imprisonment of 51/2 years on Count 1 and 131/2 years on Count 2. Both counts are in respect of trafficking in a dangerous drug.

2. Applications for leave to appeal against sentence out of time having been granted. We heard the applications for leave to appeal against sentence. We allowed the applications. Treating the hearing of the applications as hearing of the appeals, we allowed the appeals against sentence.

3. As regards each of the applicants, we reduced the sentence on Count 1 to 2½ years and that on Count 2 to eight years, the two sentences to run concurrently.

4. We now give reasons for our decision.

5. So and Hon were arrested on 8 April 1993 for drug trafficking. They appeared in the High Court on 21 April 1994 on three counts. They pleaded guilty to the two counts now under consideration and a third count was left on the file. So and Hon were thus convicted on their own pleas and sentenced on the 21st April.

6. At about noon on 8 April 1993, So and Hon were stopped by the police as they were about to enter an apartment in Sham Tseng, New Territories. Hon was caught in the act of opening the iron grille to the flat with a key. Another key to the apartment was found on So's person. So was holding a bag containing nine packets of dangerous drug found to be 254.72 grammes of a mixture containing 96.85 grammes of salts of esters of morphine (subject matter of Count 1). Inside the apartment the police found blocks of heroin, i.e. 844.14 grammes of a mixture containing 685.05 grammes of salts of esters of morphine (subject matter of Count 2).

7. It was not disputed that So rented the apartment, and a friend of Hon gave them the dangerous drug for storage inside the apartment. So and Hon later took some of the drug out, and sold it to a man called "Sai Chu" at Yaumati Theatre. Paraphernalia for packing drugs were found in the apartment.

8. On or about 19 May 1994 (after the time had expired for the applicants to lodge an appeal) the applicants' co-conspirators Lam Ching Ko and Chan Chi Keung were arrested. The applicants identified Lam and Chan at an identification parade held on 2 June 1994. Lam and Chan were brought to trial on 27 April 1995 during which both applicants testified against Lam and Chan. As a result of evidence given by the applicants, Lam and Chan were convicted of conspiracy to traffic in dangerous drug and conspiracy to manufacture dangerous drug. Lam was sentenced to 24 years' imprisonment and Chan to 22 years' imprisonment.

9. On 3 July 1995, the applicants sought leave to appeal against sentence. Legal aid was granted to them on 25 August 1995. Then followed correspondence between the Legal Aid Department and the Legal Department as to the assistance given by the applicants to the authorities. On 10 January 1996, the applicants filed their affirmations in support of their applications for extension of time.

10. Though the applications for extension of time were made some 20 months after conviction and sentence, we were satisfied that in the particular circumstances of the case before us, it was proper for us to grant the extension of time asked for.

11. It is common ground that after their arrest, So and Hon provided information to the police about their ringleader and others who had conspired with them in drug trafficking. They had also agreed to give evidence against their co-conspirators. As has been noted, the arrest of two of the co-conspirators, Lam and Chan, took place after the applicants' conviction and sentence.

12. In passing sentence the learned judge gave them a discount because of their "genuine co-operation and helpful co-operation with the police", and also "their willingness to testify in any subsequent trial". The judge went on to say:

"The starting point - had you gone for trial and been found guilty, the sentence on count one would have been nine years and three months, and on count two, it would be twenty years, and that is at the lowest. Bearing in mind your pleas and also what appears to me to be your genuine co-operation and helpful co-operation with the police and your willingness to testify in any subsequent trial, that in my view is worth of a considerable discount. So what I am doing now is I am allowing a discount, something in the region of forty per cent, which means that in respect of the first count, you go to prison for five years and six months, and in respect of the second count, thirteen-and-a-half years. The sentence is of course concurrent."

13. Counsel for the applicants accepted that the starting point adopted by the judge was correct but pointed out that the discount was in fact not forty per cent but slightly over one-third.

14. Counsel further pointed out that another accomplice, Mok Lun, who also testified against Lam and Chan, had earlier pleaded not guilty to trafficking 600 grammes of salts of esters of morphine and was sentenced to imprisonment for 18 years. He appealed and a re-trial was ordered. He pleaded guilty at the re-trial and received a sentence of eight years. Counsel for the Crown stressed that there was no difference in the culpability of Mok Lun and the two applicants. None could be described as a "supergrass".

15. Counsel for the applicants further argued that in becoming police informants and prosecution witnesses they had put themselves and their families at considerable risk of retaliation.

16. In our judgment, the assistance given by the applicants, both before and after their conviction and sentence calls for a generous discount. We are not however persuaded that the sentence on Mok Lun, passed in another case by another judge, should cause us to vary the sentences in the present case so as to reduce or eliminate what might be perceived as a "disparity" of sentences between these men. Nor are we persuaded that the applicants' assistance put them in the category of "supergrass". However, having taken into account what was undoubtedly very useful assistance they had provided, we thought a greater discount should be given to the correct starting point adopted by the sentencing judge. We accordingly came to the decision which we did.