HKSAR v. LEE WAI KWAN

CACC 221/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 221 OF 2015

(ON APPEAL FROM HCCC NO. 46 OF 2015)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  By reason of the applicant’s assistance given to the authorities following her sentence, the applicant seeks leave to appeal against a total sentence of 14 years and 7 months’ imprisonment imposed on her by Deputy High Court Judge Wilson Chan on 27 March 2015, following the confirmation of her earlier guilty pleas on 23 January 2015 in the Eastern Magistracy to the following two offences:

(a)   Trafficking unlawfully in a dangerous drug on 3 August 2014, namely 1,456 grammes of a crystalline solid containing 1,450 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1); and

(b)   Unlawful possession of a dangerous drug on 4 August 2014, namely 0.15 gramme of a crystalline solid containing 0.15 gramme of “Ice”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (Count 2).

2.  The applicant is represented before us today by Ms Olivia Tsang (who also appeared for the applicant at trial), and the respondent by Ms Teresa Kam SPP.

Facts of the case

3.  The applicant was intercepted at the Customs Arrival Hall of the Lo Wu Control Point at 23:23 hours on 3 August 2014.  A search revealed the presence of “Ice”, the subject-matter of Count 1, contained in 3 plastic bags which were taped to her waist and thighs.  Upon arrest and caution, she said that she would receive $10,000 for carrying the “Ice” to a person called “Kam Shing”[1], who was the person who had attached the “Ice” to her body and who was to help her remove it in Hong Kong.

4.  On the following day (4 August 2014), during a search of the applicant’s home, a plastic bag containing “Ice”, the subject-matter of Count 2, and one inhaling device[2] containing 0.06 gramme of a powder containing methamphetamine were found.  The applicant said under caution that the “Ice” was for her own consumption.

5.  In a subsequent video-recorded interview, the applicant elaborated on what she had said under caution at the scene.[3]  The applicant also accepted that the estimated retail value of the total quantity of the “Ice” (in both Counts 1 and 2) was $620,345.46.

Mitigation

6.  By way of background information, it was submitted on behalf of the applicant that:

(a)   she was 45 years of age, and had been born and educated in Shanghai;

(b)   she was divorced in 2008 and had a 13-year-old son;

(c)   she had been diagnosed as suffering from schizophrenia with suicidal tendencies;

(d)   she committed the offence in Count 1 because of debts she owed to “Kam Shing”, who operated a mahjong parlour which she frequented; and

(e)   she was very remorseful.

7.  Counsel urged the judge to impose concurrent sentences on both counts in accordance with the principle of totality.

Reasons for sentence

8.  In respect of Count 1, the judge had regard to the guidelines set out in HKSAR vTam Yi Chun[4], which suggested a starting point for sentence of 23 years and 3 months’ imprisonment on an arithmetical basis according to the quantity of narcotic involved.  He then enhanced the starting point by 2 years’ imprisonment for the international element involved in bringing more than a kilogramme of “Ice” across the border into Hong Kong.  The resulting sentence after trial thus became 25 years and 3 months’ imprisonment.  The judge then gave the applicant a 42% discount[5] from the head sentence, which comprised a discount of one-third for her guilty plea, as well as a further reduction to reflect the “special circumstances on the papers which justify a lenient view to be taken of the facts”.[6]  Accordingly, the judge passed a sentence of 14 years and 7 months’ imprisonment in respect of Count 1.

9.  As for Count 2, the judge stipulated a starting point for sentence of 6 months’ imprisonment.  Giving the applicant the same 42% discount from the starting point, he sentenced the applicant to 14 weeks’ imprisonment, which sentence he ordered to run wholly concurrently with the sentence on Count 1.  The overall sentence for both counts was, therefore, 14 years and 7 months’ imprisonment.

Applicant’s assistance

10.  As noted earlier, the applicant alleged that she had been used by “Kam Shing” as a courier to smuggle “Ice” into Hong Kong.  The applicant initially participated in a controlled delivery operation; however, “Kam Shing” did not appear.  Thereafter, she successfully identified him in a photographic identification, and gave a total of three non-prejudicial statements.  As a result of the photographic identification, it transpired that the correct name of “Kam Shing” was Cheung Kim Shing (“Cheung”).  This individual had crossed the Lo Wu border into Hong Kong together with the applicant on 3 August 2014.

11.  The first non-prejudicial statement was given by the applicant on 30 January 2015 and resulted in the arrest of Cheung on 27 March 2015, at which time he was serving a sentence of imprisonment for an unrelated offence of unlawful possession of a dangerous drug.  The second non-prejudicial statement was made on 13 May 2015, which led to Cheung being charged with one count of trafficking in a dangerous drug.  A third non-prejudicial statement was given on 16 June 2015.

12.  After Cheung had been indicted on one count of trafficking in a dangerous drug in HCCC 343/2015[7], the applicant testified as a prosecution accomplice witness.  The respondent accepts that the applicant gave evidence in line with her non-prejudicial statements, as a result of which Cheung was unanimously convicted by a jury and, on 15 December 2015, sentenced to 25 years and 3 months’ imprisonment.

13.  The relevant stages of the applicant’s assistance to the authorities, leading to the present application have been helpfully summarised by Ms Kam in the form of a tabulated chronology as follows:

3 August 2014 around 2330 hours	The applicant was intercepted and arrested by Customs at Lo Wu Control Point.
4 August 2014 around 0205 hours	The applicant participated in a controlled delivery at her home in Sham Shui Po but no one came to pick up the drugs.
23 January 2015	The applicant pleaded guilty to both charges in the Magistracy on the return day.
30 January 2015	The applicant gave her first non-prejudicial statement (‘NPS’) to the prosecution implicating Cheung Kim Shing (‘Cheung’)
27 March 2015	The applicant admitted to the Summary of Facts in the High Court.
27 March 2015	Cheung was arrested by Customs for trafficking in dangerous drugs.  He remained silent under caution.
8 April 2015	Customs took a record of interview from Cheung.  He remained silent and refused to participate in a formal identification parade.
13 May 2015	The applicant positively identified Cheung in a photographic identification. She gave a second NPS to Customs confirming that Cheung was the person in the photograph.
4 June 2015	Cheung was charged by Customs with one count of trafficking in a dangerous drug.
16 June 2015	The applicant gave a third NPS to Customs implicating Cheung.
26 June 2015	The applicant was sentenced to 14 years and 7 months’ imprisonment in HCCC 46/2015.
3 July 2015	The applicant applied for leave to appeal against her sentence.
21 August 2015	Cheung pleaded not guilty to the charge and a trial was fixed in the High Court from 8-17 December 2015 (HCCC 343/2015).
8-9 December 2015	The applicant testified against Cheung in HCCC 343/2015 as PW1.
10 December 2015	Cheung chose to testify in his trial.
14 December 2015	Cheung was unanimously convicted by the jury after trial.
15 December 2015	Cheung was sentenced by Deputy Judge Campbell-Moffat SC to 25 years and 3 months’ imprisonment.

Ground of appeal

14.  In her amended Perfected Grounds of Appeal filed on 24 March 2016, Ms Tsang submits that the 42% discount granted by the trial judge reflected the applicant’s assistance up to the time at which he dealt with her, covering her participation in an unsuccessful controlled operation and her provision of information about Cheung, but not her further evidence in court resulting in Cheung’s conviction.  Citing Z v HKSAR[8], Ms Tsang submits that the sentence may be said to be manifestly excessive in the light of the applicant’s further assistance, which should merit a discount of 50% from the starting point.

Respondent’s submissions

15.  Ms Kam, on behalf of the respondent, accepts that the 50% discount sought by the applicant was justified, given the nature and extent of her post-sentence assistance.

16.  Ms Kam further summarised in her skeleton submissions the appropriate range of reductions on sentence that should be given to a defendant who has provided assistance to the authorities as follows:

(a)   For a defendant who has pleaded guilty and provided fruitful assistance to the authorities, but without giving evidence against the person he/she has implicated, a discount of 40% to 45% was appropriate.  Ms Kam submitted that the 42% discount given by the judge on the basis of the applicant’s then assistance was appropriate;

(b)   Where a defendant has pleaded guilty, provided information and then given truthful and material evidence in court, the normal discount should be about 50%; and

(c)   Where the level of co-operation was sufficient to place the defendant in the “supergrass” category, a maximum discount of two-thirds may be given.  Ms Kam submitted that the applicant was not in this category.

Consideration

17.  It is not contended here, nor could it be, that the applicant fell into the “supergrass” category of cooperation.  Rightly, Ms Tsang does not suggest that the discount in the circumstances before us should have been greater than 50% from the appropriate sentence after trial. Equally, Ms Kam rightly accepts that, in the light of the applicant’s post-sentence assistance, which has now resulted in the conviction and sentence of an accomplice witness, the starting point should properly be discounted by 50%.  We agree.

18.  We note that in sentencing Cheung on 15 December 2015, Deputy Judge Campbell-Moffat SC observed that the jury must have found that he had recruited the applicant and that “if it had not been for her assistance, (Cheung) would not have been identified or apprehended”.  As for her evidence in court, the judge held that if it had not been for the applicant, Cheung may very well not have been convicted.

19.  In the circumstances, a 50% discount of the respective starting points for Counts 1 and 2 would result in sentences of 12 years and 7½ months’ imprisonment and 3 months’ imprisonment respectively, which when made wholly concurrent with each other would result in an overall sentence of 12 years and 7½ months’ imprisonment.  We are prepared in the circumstances of the applicant’s fruitful assistance and its extent, as well as her lesser role in the offence than Cheung (as indicated by Deputy Judge Campbell-Moffat SC), to round the sentence down to 12 years and 6 months’ imprisonment.

20.  Accordingly, the application for leave to appeal against sentence is allowed and the sentence reduced to the extent indicated.