R. v. WONG KANG MAN

IN THE COURT OF APPEAL

1994, No. 526
(Criminal)

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J U D G M E N T

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Liu, J.A. (giving the judgment of the Court):

1. The applicant and his co-accused faced one charge of trafficking in a dangerous drug. He pleaded guilty and was sentenced to 15 years' imprisonment.

2. The facts are straight forward. On 29 November 1993, a team of five police officers were performing an anti-dangerous drug operation in Yuen Long. The applicant was observed by the surveillance team to have accepted a bag of dangerous drugs from his co-accused. They were both caught red-handed.

3. The applicant indicated to the court through his counsel that a pre-trial review was unnecessary because he had decided to plead guilty to the charge. When his co-accused was about to be arraigned, the applicant said in his mitigation that he was prepared to give evidence against him. At that juncture, counsel for the prosecution intervened with the information that the applicant's co-accused was going to plead guilty as well and that the offer of the applicant would be quite redundant.

4. The applicant had arranged with two friends in Shenzhen to have drugs brought into Hong Kong by his co-accused. It was the applicant who paid his co-accused $6,000 as transportation fee. The applicant also admitted that he intended to sell the heroin in Hong Kong for gain. There is no doubt that the applicant played a major role. The judge sentenced the applicant to 15 years' imprisonment and his co-accused to 13 years' imprisonment so as to reflect the difference in culpability between the two. Almost a third discount was given to the applicant as it was given to his co-accused.

5. Counsel for the applicant argues on two grounds before us. First, it is submitted that the judge failed to take into account the applicant's offer to testify against his co-accused. Secondly, it is submitted that there was no proper or sufficient material for the judge to consider the applicant as being more culpable than his co-accused.

6. As to ground one, the circumstances in which both defendants were apprehended made the offer of the applicant to testify against his co-accused, a gesture of no real value. Further discount would not be justified in the circumstances as almost one-third had already been generously discounted by the judge for his guilty plea in a very strong prosecution case. Ground one therefore fails.

7. Turning to ground two, we do not agree with counsel for the applicant that there was no sufficient material before the judge for drawing a distinction in culpability between the applicant and his co-accused. The applicant also fails on this ground.

8. The application for leave to appeal against sentence has, in our view, no merit. The application is therefore refused.