HKSAR v. CHAN MAN CHAU AND ANOTHER

CACC 503/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 503 OF 1999

(ON APPEAL FROM HCCC 135/1999)

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. The 2nd applicant Wong King-chuen and the 1st applicant Chan Man-chau were jointly charged with trafficking in a dangerous drug. The amount involved was approximately 12.58 kilogrammes of heroin hydrochloride and 156.69 kilogrammes of ice. The 2nd applicant pleaded guilty. The 1st applicant pleaded not guilty. The 2nd applicant gave evidence for the 1st applicant at his trial. The 1st applicant was convicted after trial and was sentenced to 26 years imprisonment.

2. The 2nd applicant was sentenced to 20 years imprisonment. The 2nd applicant now seeks leave to appeal against sentence.

3. The facts as admitted by the 2nd applicant were these. On the morning of 15 October 1998, police officers saw the two applicants arrive in a car at the water-front outside the Cheung Sha Wan Fish Market and wait outside the car. Sometime later, a small boat arrived and a man from the boat came ashore delivering to the two applicants four carton boxes and five nylon bags of substances. The two applicants loaded them into their car. Police officers subsequently intercepted the car and found the 2nd applicant in the seat next to the 1st applicant who was the driver. The boxes and nylon bags were found to contain what was subsequently proved to be the dangerous drugs specified in the charge.

4. In sentencing the 2nd applicant, the trial Judge, Deputy Judge Longley stated that he adopted 27 years as the starting point. He reduced the starting point by 1 year because it would be the first time the 2nd applicant was sent to prison. He then gave the 2nd applicant 6 years discount for his plea of guilty, arriving at the sentence of 20 years imprisonment.

5. The Judge explained why he did not give the 2nd applicant full one-third discount for his plea in these words:

6. Clearly from what the Judge said, he was reducing the normal discount for plea because the 2nd applicant gave evidence for the 1st applicant which evidence appeared to have been rejected by the jury.

7. On the first ground of appeal, Mr Wong Po-wing, counsel for the 2nd applicant submits that the Judge should not have penalised the 2nd applicant by reducing his discount for giving evidence for his co-defendant even though his evidence was rejected by the jury.

8. Mr Vincent Wong, counsel for the respondent submits that it was up to the Judge to exercise his discretion relating to the degree of remorse shown by the 2nd applicant and what discount for the plea should be given.

9. In our view, the purpose of discount for plea was to give the defendant credit for showing remorse and saving court time in proceedings against him. Whether he gave evidence for his co-defendant should have no effect on the credit he would have been given. Even if he does give evidence which eventually is not believed and the trial of the co-defendant has been thereby unnecessarily prolonged, much to the dislike of the trial judge, still there is no justification to penalise him for giving evidence. If the 2nd applicant had pleaded not guilty, but he did not give evidence in his own defence, instead he had chosen to give evidence for the 1st applicant and his evidence was rejected, could a longer sentence be imposed on him because of him giving evidence for the 1st applicant? The answer must be "No". If it were the opposite, a defendant who pleaded guilty and gave evidence for his co-defendant but was not believed, would be in a worse position than if he had pleaded not guilty. As Liu JA said in R v Yu Hong-kit CACC 323/1995, the fundamental concept is that "no man should be discouraged from testifying in a court of law". The authorities referred to in the respondent's argument do not indicate anything contrary to this principle.

10. In the case of R v Lawless [1998] 2 Cr App R (S) p. 176 it was held that it was wrong not to allow a defendant who had pleaded guilty a discount for his plea on the ground that he had given evidence for a co- defendant who was convicted. Thomas LJ said at p. 177:

11. As Power Ag CJ said in R v Lun Nai-kin (unreported) CACC 652/1996, the appropriate discount for a plea is one-third and although the question of discount is a matter for the discretion of the trial judge, the exercise of this discretion must be on some rational basis. We see no reason why the approach in the case of Lawless should not be followed. The fact that the 2nd applicant's evidence had been disbelieved is not inconsistent with the 2nd applicant being remorseful.

12. Mr Vincent Wong for the respondent further refers to R v Wu Pak-kun and another CA 1985/456. In that case District Judge Souyave did not give to a defendant who had pleaded guilty a discount in sentence similar to that given to other defendants who pleaded not guilty. The Judge found the defendant had no option but to plead guilty and he had given perjured evidence for his co-defendants at their trial. The Judge considered the defendant was therefore not remorseful and by giving evidence at the trial the defendant had wasted time and money. The Court of Appeal said the Judge's approach could not be criticised.

13. Based on this case, Mr Wong submits that the Judge was right in exercising his discretion not to give the usual one-third discount to the applicant who had prolonged the trial by giving evidence not accepted by the jury and that demonstrated that he had no remorse.

14. We do not think the case of Wu is applicable to the present case. That was a case before the now generally accepted principle of giving one-third discount in sentence to a defendant who had pleaded guilty had been established. That rule was necessitated to encourage those who are remorseful to come forth and plead to the charge thereby saving the time and expenses of a trial and to make clear to them the benefit normally would be derived from him taking such a course of action. Over the years since the Wu case there has been changes of circumstances with the result that an approach different from the approach of District Judge Souyave in the Wu case should now be adopted.

15. We conclude that the Judge was wrong in giving less than one-third discount to the 2nd applicant for his plea because he gave evidence for his co-defendant which evidence was disbelieved.

16. The 2nd complaint of the 2nd applicant is the 27 years starting point is too high, having regard to the minor role he played in the enterprise. Mr Wong Po-wing referred to cases with similar quantity of drugs where a lower starting point had been adopted. Suffice to say, every case depends on its own circumstances and it has been said time and again that it would serve no useful purpose by making comparison of this nature. Having regard to the enormous quantity of ice 156.69 kilograms and the very substantial quantity of heroin 12.58 kilograms, even on the basis that the 2nd applicant was not the main culprit in this trafficking enterprise, 27 years as a starting point is not manifestly excessive. This ground must fail.

17. The third ground of appeal is that the Judge did not give the 2nd applicant some discount for his assistance to the police. The assistance, the 2nd applicant said he had given to the police was he was willing to give evidence against his drug boss Cheung Ming if and when the latter was arrested and that he had given information in this regard to the police.

18. From the transcript, the Judge was told that the only information given by the 2nd applicant to the police was the name Cheung Ming and a mobile telephone number and these were mentioned in the 2nd applicant's cautioned statement. The name Cheung Ming was unknown to the police. The police had checked the mobile telephone number but with no fruitful result. The 2nd applicant had not given any witness statement to the police. Thus, it was a mere promise to give evidence and no useful information on which the police could act had been given by him. In R v Leung So-lee (unreported) CACC 724/1996 a case referred to by Mr Vincent Wong for the respondent, Mayo JA (as he then was) said in relation to the discount for a defendant who had pleaded guilty and provided information to the police:

19. The circumstances of the present case do not justify giving the 2nd applicant further discount in this regard. The Judge was right in this respect. This ground fails.

20. We consider that the Judge was too generous in giving 1 year discount because this was the 2nd applicant's first term of imprisonment. That should not have been given in a crime as serious as the present one. We therefore conclude that the starting point should be one of 27 years. From this, the discount of one-third is to be made. The proper sentence after plea in the circumstances of the 2nd applicant's case should be one of 18 years.

21. Since we have arrived at the reasons we have given, it is not necessary for us to deal with the final ground regarding the duty of defence counsel in advising a defendant as to giving evidence for a co-defendant.

22. We grant the application for leave to appeal against sentence. We treat this hearing of the application as the appeal hearing. We allow the appeal and reduce the sentence of 20 years imprisonment to one of 18 years imprisonment.