HKSAR v. CHEUNG HOI SANG

CACC309/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 2011

(ON APPEAL FROM DCCC NO. 985 OF 2011)

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BETWEEN

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J U D G M E N T

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Saw J giving the judgment of the court :

1.  The applicant was charged with an offence of doing an act preparatory to or in furtherance of the manufacture of a Dangerous Drug contrary to section 40(1)(c) of the Dangerous Drugs Ordinance Cap. 134.

2.  On 20 January 2011 he pleaded guilty and was sentenced by Judge Longley in the District Court to be imprisoned for 3 years and 4 months.

3.  This is an application for leave to appeal that sentence out of time.

4.  In R v Wong Kai Kong [1990] 1 HKC 279, 280 the Court of Appeal observed of its powers to grant an extension of time within which to file a notice of appeal (in that case against conviction) :

“In considering whether the applicants should be granted the indulgence they seek it is first necessary for us to consider not only the reasons advanced in the grounding affidavits for the failure timeously to make application but also the period of time which has elapsed between the conviction and the application.”

5.  In the instant case the application for leave to appeal sentence, out of time, was filed on 4 August 2011, almost six months after the time for filing had expired.

6.  To properly consider the applicant’s failure to timeously file a notice of appeal it is necessary to revisit the events at or about the time of his arrest and his appearance before Judge Longley.

7.  The facts which gave rise to the applicant’s offence were as follows.

8.  On 8 May 2010 the applicant was apprehended by customs officers in the departure lounge of the Hong Kong International Airport shortly before he was to board a flight for Australia.  He was searched and he was found to have in his possession 8 bags which contained a substance which was later found upon analysis to be methylephedrine.

9.  He was in the company of another male Tam Hok Yi — who was also found to have the same substance in bags strapped to his legs and in his shoes.

10.  The total quality of methylephedrine in the applicant’s case was 3.85 kilograms.

11.  Tam was separately charged and the total quantity of methylephedrine he carried was 3.27 kilograms.

12.  It was an admitted fact that methylephedrine is a precursor chemical used in the manufacture of N, N-dimethylamphetamine hydrochloride — a Dangerous Drug — for the purposes of the Dangerous Drugs Ordinanace Cap. 134. — It was an admitted fact that the applicant and Tam had been paid to deliver the methylephedrine to Australia.  The applicant was to be paid between $50,000 and $60,000.

13.  When the matter came on for hearing before Judge Longley on 19 January 2011 the applicant was represented.

14.  The judge when sentencing observed that there were no guidelines for sentencing for this offence but that the maximum penalty was 15 years’ imprisonment.  Of the matters advanced in mitigation on behalf of the applicant the judge said this “the only substantial mitigation, however, in your case is your plea of guilty, for which you are entitled to the usual discount of one-third”.

15.  The judge took a starting point for sentence of 5 years and imposed a sentence of 3 years 4 months.

16.  The only ground of appeal the applicant wishes to advance is that shortly before he pleaded guilty he had provided to officers of the Customs and Excise Department the name of the person who had recruited him to deliver the methylephedrine to Australia.  This plus his offer to give evidence against this person had led to that person’s arrest and subsequent conviction.

17.  In the course of being interviewed the applicant had told the Customs and Excise officers that the person who had arranged for him to deliver the precursor chemicals to Australia was one named “Hak Chai”.  This information was provided before the applicant was sentenced.  The person he had named was then arrested — but made no admissions. This was the position on 20 January 2011 when the appellant pleaded guilty.  This was not brought to the attention of the judge at the time of sentencing.  However, and this is accepted by the respondent, after the applicant was sentenced he attended an identification parade and positively identified the person he had described as “Hak Chai”.  Subsequently he provided a further statement in which he gave details of “Hak Chai” and his involvement in the applicant’s offence.

18.  In due course “Hak Chai” was charged with conspiring to do an act preparatory to or in furtherance of the manufacture of a dangerous drug.  He was to be tried in the District Court.  The applicant was to give evidence against him for the prosecution.  On the day of the trial the applicant was taken to the District Court for that purpose.  However “Hak Chai” pleaded guilty and was sentenced to be imprisoned for 4 years.

19.  It is accepted by the respondent that the assistance provided by the applicant led to the arrest and charging of “Hak Chai”.  It is also apparent that his subsequent offer to give evidence in the prosecution’s case was a significant factor in the latter’s decision to plead guilty.

20.  Whilst the applicant’s offer to provide assistance was made before he pleaded guilty, the fact was that the information he provided would not have enabled the judge to give to him a great deal of credit.  It was only after “Hak Chai” had been identified by the applicant and he had attended the District Court to give evidence against him that the extent of his assistance could properly be evaluated.

21.  The applicant lodged his application for leave to appeal out of time some 2 weeks after “Hak Chai” was sentenced.

22.  This was therefore an appropriate case in which to grant leave to appeal out of time.

23.  As to the merits of the appeal we are satisfied that the applicant’s assistance was deserving of a further discount from the starting point adopted by the judge. In all of the circumstances we consider that for the assistance plus his plea of guilty a total reduction of 40% from the starting point was appropriate. That would result in a sentence of 3 years’ imprisonment.

24.  We grant him leave to appeal his sentence.  We treat the application for leave as the hearing of the appeal, we allow the appeal and set aside the sentence of 3 years and 4 months’ imprisonment and substitute a sentence of 3 years’ imprisonment.