R. v. KWAN KWOK CHUEN

1994, Nos. 165, 166 & 167
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Yam, J. (Delivering the judgment of the Court) :

1. The applicant in these three cases in the District Court pleaded guilty to six charges involving one count of trafficking in a dangerous drug, four counts of possession of a dangerous drug and one count of possession of apparatus fit and intended for the smoking of a dangerous drug. In respect of the count of trafficking, he was sentenced to four years' imprisonment. In respect of the four separate counts of possession of a dangerous drug, he was sentenced to six months to two years' imprisonment, and for the last count, he was also sentenced to six months' imprisonment. All sentences were ordered to run concurrently.

2. In respect of the trafficking charge, the trial judge, H.H. Judge Lugar-Mawson took a sentence of six years' imprisonment as the starting point which he said was at the generous end of the Lau Tak-ming tariff. He gave the defendant a discount on that sentence of one year "to reflect the pleas and co-operation and a further discount of one year to reflect the help of the information he had given to the Narcotics Bureau." It is against this four years' imprisonment sentence that the applicant applied for leave to appeal.

3. When the applicant was sentenced on 25th March 1994, the only information available to the trial judge was that the applicant had given valuable information to the Narcotics Bureau resulting in five different seizures of heroin for the total amount of 25.9kg of No.4 heroin. Subsequent to the date of sentence, which was of course unknown to the trial judge, five persons were convicted in the High Court and were sentenced to terms of imprisonment ranging from 14 to 21 years. We gave leave to the applicant to adduce additional evidence before this Court to that effect, with no objection from the Crown.

4. We granted leave to the applicant to appeal and allowed the appeal in that we reduced the sentence of four years in respect of the trafficking charge to one of three years and ordered that all sentences be served concurrently. We did so for the following reasons.

5. The starting point of six years taken by the trial judge was on the low side. According to R. v. Lau Tak-ming [1990]2 HKLR 370, the tariff for 10 to 50g of heroin should be between five and eight years. Accordingly, for possession of 38.53g of heroin for the purpose of trafficking, the proper starting point for sentence was 7 years' imprisonment.

6. In respect of whether some of the sentences should run consecutively instead of concurrently to the trafficking charge, Mr Cross for the Crown pointed out that the three offences in the second case occurred while the applicant was on bail in respect of the first case. Further, the third offence occurred while the applicant was on bail in respect of the second case. We agree with him that the two years' sentence should run consecutively to the seven years' sentence, thus making a total of nine years.

7. However, we find that the reduction of only two years given by the learned trial judge was inadequate. The information given by the applicant was very valuable. A total quantity of 25.9kg of heroin was seized and kept off the streets of Hong Kong. Five persons were convicted and given very lengthy sentences. The applicant had offered to give evidence but he was not called upon by the Crown to do so. In A.G. v. Wong Kwok-wai [1991]2 HKLR 384 at p.387, Silke, V.-P. said :-

"Co-operation with and information to the arresting authorities is also to be encouraged and frank admissions of guilt, which are not resiled from, go to strengthen the mitigating value of a plea made at first opportunity. To be entitled to an increased discount for information given, that information must be of some use."

8. In the circumstances of this case, we are of the opinion that the applicant came within the category of supergrass and should have been given a very substantial discount in sentence. Otherwise, there would be little encouragement to offenders to volunteer to give useful information to the authorities.

9. Accordingly, taking into account the applicant's plea of guilt, we consider that the applicant should be given a 2/3rd discount in the circumstances of this case. The nine years' imprisonment should therefore be reduced to three years. In order to simplify the matter, we reduce the sentence on the trafficking charge of four years' imprisonment to one of three years, leaving the other sentences to run concurrently with it.