R. v. YIP KEE-CHUN

IN THE COURT OF APPEAL

1994, No.91

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced two counts. The first count was a count of trafficking in dangerous drugs which charged that he, Li Kam-tong ("the 2nd accused") and a lady called Brenda Lau Mei-ching ("the third accused") on 12th February 1993, outside Shop 24A, Shopping Plaza, Hyatt Regency Hotel Hong Kong unlawfully trafficked in a dangerous drug, namely 337.61 grammes of a mixture containing 134.10 grammes of salts of esters of morphine. The other count was also one of trafficking which particularized that he on 12th February at Flat 3, 14th floor, Block E, Rivera Garden, Shatin trafficked in 6,254.04 grammes of a mixture containing 3,718.06 grammes of salts of esters of morphine. He pleaded guilty to both of those counts.

2. The facts which were admitted revealed that on 12th February he was being kept under observation by officers of the Narcotics Bureau. He parked his car and went to the Hyatt Hotel where he met the 2nd and 3rd accused. After conversation he handed a Manila envelop to the 3rd accused, the lady who, having inspected its contents, placed it in her handbag. He and the 2nd accused then left the hotel and the 2nd accused was seen to hand over a wad of banknotes to him. He was shortly after apprehended when his car was stopped by traffic congestion and as a result of investigations it was revealed that he had rented two flats at the site indicated in the second charge. When these were searched, in one of them the drugs the subject of the second charge were found. It is to be noted that with the drugs were found a postal scale, a blender, plastic spatulas, bowls and cups and that the applicant's palm print was found on the blender.

3. The trial judge when sentencing said:

"The very large quantity involved in the third count puts your case in the most serious category of drug offences for sentencing purposes. Had you been convicted after a trial, that offence would have attracted a sentence exceeding 20 years' imprisonment.

For the purpose of this sentence, I will state that after trial I would have imposed a term of 21 years' imprisonment on count 3 and 9 years on count 1. However, you have pleaded guilty and your plea of guilty was indicated by letter to the prosecution quite recently. You have also agreed to be a witness for the prosecution against the 3rd and 2nd defendants on count 1.

You have given a detailed statement to this effect and, further, you have provided information and detail concerning the person you described as your boss who as yet has not been arrested

I accept that you have demonstrated genuine remorse and have been and will continue to be co-operative. Your willingness to give evidence for the Crown in this trial relates to the first count only. However, I consider the proper approach is to decide what discount that merits and will apply that discount to both charges, particularly bearing in mind the information you have provided about another involved.

I have taken into the account the fact that you engaged yourself in this illegal trade to help finance family medical bills. Even though your plea of guilty has been fairly late in the day I have decided, because of the other mitigating factors, to give you a one third discount on sentence."

He then sentenced the applicant to six years' imprisonment on the first charge and to fourteen years' imprisonment on the second charge with those sentences to be served concurrently.

4. The one-third discount which the judge gave was the discount that would normally be given upon a plea of guilty although the judge seems to have taken the view that as the plea was a somewhat belated one the applicant was not really entitled to the full one-third. However that may be, the judge does not seem to have given any discount in relation to the co-operation, which he clearly accepted had been genuinely given, and to the offer to give evidence which he also accepted was genuine. Be that as it may today we are in possession of a number of further facts which are clearly in the applicant's favour. He was in custody for about a year before he pleaded guilty to the two counts of trafficking on 21st February 1994. At some stage in the second half of that year it seems he decided to co-operate with the police and by 5th February 1994, he had given a statement concerning the trafficking activities of his boss Ching Yau-kam. Two days later he amplified that statement. Immediately after his own plea he gave evidence against the co-accused Lau Mei-ching which led to her conviction. In November 1994, he gave further statements about the syndicate to which Ching Yau-kam belonged and identified Ching and other members of that syndicate. He then, having been transferred to the psychiatric centre in Siu Lam, complained that his girl friend was being kept under observation by criminal elements suggesting that she was in danger because of his co-operation with the police. In November 1995, one of the men whom he had implicated, Shing Siu-ming, was arrested and in January 1996, the other man Ching Yau-kam was arrested. He continued to co-operate and gave further statements and in December 1996 he gave evidence at the trial of Ching. Ching faced three charges of conspiracy but in the outcome he was acquitted. However that may be, the police officer who was present in court during that trial stated that Yip's evidence was truthful and forthright in relation to Ching and that, without his testimony, there would have been no case against Ching. There can be no doubt that he is entitled to credit for his co-operation and for the evidence which he has given. We are satisfied that he cannot properly be regarded as a supergrass but that substantial credit must be given for valuable co-operation and the giving of evidence. We start, as did the judge, at 21 years for the more serious of the two charges. No suggestion has been made that that was not a proper starting point. We are satisfied, given the above, that the proper sentence to impose on that charge after discount is one of ten years and not the fourteen years imposed by the judge. The sentence on the other charge we reduce from six years to four years. We order that the sentences be concurrent, making an overall sentence of ten years.

5. The appeal is allowed and the sentences will be varied as indicated..