HKSAR v. POON CHUM KONG

CACC No. 228 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 1st April 1999, the Applicant pleaded guilty to trafficking in dangerous drugs. He was sentenced by Deputy Judge Wong to 9 years' imprisonment. He now applies for leave to appeal against his sentence. He was refused legal aid, and he has renewed his application for legal aid before us today.

The facts

2. The trafficking which the Applicant committed had occurred in August 1993. He had been seen going into a room in a monastery in Clear Water Bay Road. When he emerged, he was carrying a shoulder bag which was later found to contain two packets. On analysis, the packets were found to contain 682.58 gms. of a mixture containing 246.28 gms. of salts of esters of morphine (the technical name for heroin). It was said on his behalf that he had been provided with funds to rent a room in which heroin could be stored, and that he had been acting as a courier transporting heroin in accordance with his instructions for a few hundred dollars for each trip. He was said to have become involved in order to raise money to pay off a loan shark who was pressing him hard for the repayment of a debt.

The reason for the delay

3. The reason why so much time elapsed before his trial was because following his arrest he had been granted bail, but he had absconded by the time his trial was due to take place. His cash bail was estreated. It was said that he had gone to the mainland where he worked as a hawker, and that he was re-arrested following his return to Hong Kong. The Applicant has today claimed that he voluntarily surrendered himself to the police, but the undisputed facts are that he only admitted who he was when the police had themselves discovered his identity and had gone to his home to re-arrest him.

The starting point

4. The judge took 12 years' imprisonment as his starting point. No criticism can be made of that. It was in accordance with the tariffs laid down in Lau Tak Ming [1990] 2 HKLR 370, in which it was said that trafficking in between 200 and 400 gms. of hard drugs such as heroin should attract a term of imprisonment of between 12 and 15 years. The judge regarded the fact that the heroin had been stored in a holy place "where people go to cleanse their soul" as an aggravating factor. There may, of course, be occasions when the place where criminal conduct takes place makes the offence more serious, for example where the conduct is seen as outrageous or even provocative by persons who are present. We are not inclined to think that this was an aggravating feature in the present case, but since the judge did not give effect to this view by increasing the starting point which he would otherwise have taken, this feature of the judge's reasoning can safely be put to one side.

The degree of the discount

5. The critical question is whether the judge gave the Applicant a sufficient discount for his plea of guilty. The Applicant's co-defendant had been sentenced to 8 years' imprisonment by another judge in 1994 at the original trial which the Applicant failed to attend. He had pleaded guilty to the same charge as the Applicant eventually pleaded guilty to. Deputy Judge Wong assumed that the previous judge had likewise taken 12 years' imprisonment as his starting point, and had discounted the sentence by one-third to reflect the co-defendant's plea of guilty. Deputy Judge Wong decided that, because the Applicant had not answered to his bail, he should not be given the same one-third discount which his co-defendant had received. Instead, he gave the Applicant a discount of one-quarter only. In reducing the discount, Deputy Judge Wong was acting entirely in accordance with previous decisions of the Court of Appeal in Yiu Tat Choy (CA 613/97) and Choi Wing Wah [1998] 4 HKC 373.

6. One of us was initially concerned about that approach. A person admitted to bail who fails to surrender to custody when called upon to do so commits an offence punishable with imprisonment: see section 9L of the Criminal Procedure Ordinance (Cap. 221). To deny a defendant who absconded the discount for his plea of guilty which he would otherwise have been given could be said to be tantamount to punishing him for committing that offence. He is, in effect, serving an additional sentence for having absconded when he had not been charged with that. It could be said that it was wrong to treat the defendant in a way which has the effect of him receiving an additional sentence of imprisonment for an offence for which he had never been charged.

7. However, any initial misgivings about that approach have now been laid to rest. The reason why the discount is reduced in these circumstances is because the plea of guilty is not tendered at the earliest opportunity. Indeed, the effect of the Applicant absconding was that there had to be a second trial. He was not therefore being punished for absconding. He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary. If one of the justifications for giving a discount for a plea of guilty is the saving of the expense of a contested trial, that was to some extent neutralised in the present case by the expense of an albeit short second trial.

8. Finally, the Applicant claims that he should have been given an additional discount to reflect some assistance he gave to the police prior to his original arrest. He claims that, as a result of information which he then gave, an arrest was made, and that upon that person's subsequent conviction the Applicant received payment. The police have not yet been able to verify those facts, but even if those facts had been correct, we do not think that they would have justified a discount in the Applicant's sentence. The mere fact that a defendant has been a police informer in the past does not of itself justify a reduction in sentence. To justify such a reduction, information has to have been given either after the arrest of the offender or in the context of the offence for which the offender was subsequently arrested. That was not the case here.

Conclusion

9. For these reasons, we do not think that there are grounds of appeal which warrant the grant of legal aid, and in the circumstances this application for leave to appeal must be refused.