HKSAR v. YAU KWOK YIN

CACC 69/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 69 OF 2016

(ON APPEAL FROM HCCC 187 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1. On 8 May 2015, the applicant pleaded guilty at the Eastern Magistrates’ Court to unlawfully trafficking in a dangerous drug, namely 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride (“Ice”) contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed for sentence to the High Court and on 14 August 2015 he was sentenced by Deputy High Court Judge Wilson Chan (“the judge”) to a total of 18 years and 8 months’ imprisonment. When he committed the trafficking offence the applicant was within the operational period of a 2 months’ suspended sentence of imprisonment that had been imposed on him for the offence of fraud. The judge activated this sentence and ordered that it be served consecutively to the trafficking sentence he imposed on the applicant.

2. On 7 March 2016, the applicant filed a Notice of application for leave to appeal against his sentence out of time (Form XI).

3. At the hearing of the application we granted the application for an extension of time in which to apply for leave to appeal his sentence and allowed his application for leave to appeal.  The application did not concern the judge’s activation of the suspended sentence for the fraud offence and we left that undisturbed.  We set aside the sentence of the judge and, in substitution for it, sentenced the applicant to 15 years 4 months’ imprisonment.  We said we would hand down our reasons for so doing at a later date.  This we now do.

The background to the offence

4. The Summary of Facts that was used for the purpose of sentencing revealed that the applicant came to know a Ms Chan in early August 2014, and recruited her for a ‘travel job’ for which she would be paid $50,000 to $100,000.  Ms Chan agreed to this, and the applicant told her to find a travel agency to book a tour to Japan. 

5. On 19 August 2014, the applicant drove Ms Chan to the Royal View Hotel and instructed her to book a room and take a suitcase from his car into the hotel room.  She did as she was instructed, using money provided by the applicant and subsequently passing the access cards for the hotel room to him. 

6. On 20 August 2014, the applicant drove Ms Chan to the travel agency where she booked the tour to Japan, again using money provided by the applicant. 

7. Ms Chan later received a call on a mobile phone given to her by the applicant.  The caller enquired of Ms Chan when she would arrive in Yuen Long and asked her to go to the car park of the Sun Kong Hotel.  The applicant took Ms Chan to this carpark and on arrival there she received another call from the same person who told her to find a blue private car and then to collect a recycling bag placed on the ground near this car.  Ms Chan located the car and collected the recycling bag.  The applicant took Ms Chan back to the Royal View Hotel and told her to take the recycling bag into the room and extend her stay at the hotel. 

8. On 21 August 2014, the applicant drove Ms Chan to the hotel and told her to collect the suitcase from the hotel room.  Ms Chan opened the suitcase and found it contained many plastic bags containing a hard substance. She left the room with the suitcase and checked out of the hotel.  She was instructed by the applicant to leave the suitcase inside a flat to which the applicant provided the keys.  This flat was located in Cheong Wah Building and to get to this building Ms Chan travelled by taxi whilst the applicant followed in this private car.  Ms Chan left the suitcase in the flat. 

9. Subsequently, Ms Chan was informed that the tour to Japan was cancelled and so the applicant instructed her to book another tour, which she then did.  This tour was due to depart on 28 August 2014.

10. On 28 August 2014, Ms Chan met up with a male to collect the suitcase from the flat in Cheong Wah Building, after which she travelled to the Hong Kong International Airport.  At around 7:10 am, she arrived at the airport with the suitcase.  The applicant approached Ms Chan at the airport and inserted a phone battery and a SIM card into a mobile phone for her.  After he left, she was intercepted by police officers at the counter where she was to check in for her flight. 

11. When the inner compartment of her suitcase was searched the police found 9 plastic bags containing suspected dangerous drugs.  These drugs were later confirmed to be 4.02 kilogrammes of Ice, with an estimated retail value of HK$1,750,860.  Both Ms Chan and the applicant were arrested at the airport.  At a subsequent identification parade, Ms Chan positively identified the applicant as the one who had recruited her to traffic the dangerous drugs to Japan.

The mitigation

12. In mitigation, Mr Mughal, counsel for the applicant, submitted that the applicant was married with a one year-old daughter, and had given up taking drugs in 2013.  He had committed the present offence out of financial difficulty, and had been recruited by a Mr Cheung, who told the applicant that he would be given HK$50,000 for trafficking in drugs.  However, Mr Cheung later told the applicant to find another courier as the applicant had tattoos and would be easily targeted.  This led to the applicant recruiting Ms Chan. 

13. It was submitted that the sentencing guidelines in HKSAR v Tam Yi Chun[1] should be adopted.  Mitigation letters from the applicant and his father were also submitted.  Mr Mughal did not dispute that the applicant’s previous suspended sentence for a fraud conviction was still within the operational period and so was liable to be activated.

The Reasons for Sentence

14. The judge in his Reasons for Sentence noted the applicant’s background and motivation for committing the offence.  However, the judge observed that it was “clear from the Summary of Facts that the defendant has taken a full role in the commission of the present offence”.

15. Taking into account the tariffs set out in HKSAR v Tam Yi Chun, the judge adopted a starting point of 26 years’ imprisonment.  This was then enhanced by 2 years for the international element.  After affording a full one-third discount, the judge imposed on the applicant a final sentence of 18 years and 8 months’ imprisonment.  He also ordered the activation of the 2 month suspended sentence and further ordered that it run consecutively to the trafficking sentence, resulting in a total sentence of 18 years and 10 months’ imprisonment.

Post-arrest events

16. There were three persons arrested in this police investigation. Ms Chan, whom the applicant had recruited, the applicant himself and Mr Cheung whom the applicant maintained was the mastermind of this international drug trafficking operation.  Mr Cheung was subsequently released without being charged due to there being insufficient evidence to enable his prosecution.  Thus, only Ms Chan and the applicant were charged for their roles in respect of this trafficking of drugs to Japan.

17. Ms Chan gave a non-prejudicial statement against the applicant and was sentenced by the same judge who subsequently sentenced this applicant.  The judge adopted the same starting point of 26 years which he similarly enhanced by two years to allow for the international element.  He then turned to the discount to be awarded to her after having regard to her assistance to the police.  Noting that her statement and willingness to testify were crucial to the successful prosecution of the applicant and noting that as a consequence the applicant had pleaded guilty in the magistracy the judge awarded her a total discount of 43% from a total starting point of 28 years.  The final sentence imposed on Ms Chan was 15 years 11 months’ imprisonment. 

18. The person Mr Cheung, whom the applicant implicated as the mastermind of the drug trafficking operation, appeared before Deputy High Court Judge Campbell-Moffat, as she then was, on 27 January 2016 charged on two indictments. 

19. The first indictment in time was in HCCC 427/2015 and it contained two counts of conspiracy to traffic in dangerous drugs.  The first count to which Mr Cheung pleaded not guilty, was ordered to lie on the file and not be proceeded with without the leave of the court.  This count arose from the non‑prejudicial statement of the applicant in which he referred to some 20 occasions in late 2013 when he had delivered cocaine for Mr Cheung.

20. The second count in HCCC 427/2015 related to the incident involving the applicant and Ms Chan and to this count Mr Cheung pleaded guilty. Both Ms Chan and the applicant were listed as prosecution witnesses.  In respect of this count Campbell‑Moffat DHCJ was aware of the two sentences imposed by the judge on Ms Chan and the applicant and adopted an identical starting point and enhancement, namely 26 years enhanced to 28 years, which when discounted by one third became 18 years 8 months’ imprisonment.

21. The second indictment was in HCCC 344/2015 and it contained a single count of trafficking in 164.06 grammes of cocaine and 5.11 grammes of Ice.  In respect of this count Mr Cheung was charged separately, but as acting together with one other, and that other person was 10 years his junior, being only 15 years of age.  Both Mr Cheung and the other accused, who was also before Campbell-Moffat DHCJ, pleaded guilty to this offence.  In respect of this count the Deputy Judge imposed on Mr Cheung a sentence of 8 years 8 months after enhancing her starting point for the fact that Mr Cheung had recruited as his accomplice in his drug trafficking activities a young person of only 15 years of age.

22. The judge then had regard to the totality principle and ordered that four years of this sentence imposed in HCCC 344/2015 be served concurrently with the sentence imposed in HCCC 427/2015.  For the two offences the judge imposed on Mr Cheung a total sentence of 23 years 4 months’ imprisonment.

The grounds of appeal against sentence

23. In his perfected grounds of appeal against sentence, Mr Jon Wong, on behalf of the applicant, submitted that a further reduction should now be given to the applicant as a result of his assistance to the police.  Mr Wong referred to the applicant having made a non-prejudicial statement on 14 July 2015 against Mr Cheung who, he submitted, was the ‘mastermind’ behind the drug trafficking.  Mr Cheung, was re‑arrested on 24 August 2015 and at an identification parade held on 21 September 2015 the applicant positively identified him.  As set out above, on 27 January 2016, Mr Cheung pleaded guilty to the relevant charge and was sentenced accordingly. 

24. Mr Wong submitted that as a result of the chronology of events, the court should extend the time for the applicant to give notice of application for leave to appeal sentence.

25. For the sentencing principles relevant to the situation of a defendant who provided assistance to the authorities Mr Wong referred the court to the principles in the case of Z v HKSAR[2].  As to the total discount to be afforded to the applicant, Mr Wong submitted that Mr Cheung was the mastermind of the offence and his re-arrest and plea of guilty were the result of the non-prejudicial statement given by the applicant.  Without that statement it would not have been possible to prosecute Mr Cheung.  Mr Wong submitted that the applicant should be given a 45% discount in view of the value of his assistance.  Mr Wong did not suggest that by virtue of his assistance the applicant had exposed himself to the risk of harm.  

The respondent’s submissions

26. Ms Lilly Wong SPP, on behalf of the respondent, confirmed that the applicant did provide a non-prejudicial statement relating to Mr Cheung and that Mr Cheung did plead guilty to a charge of conspiracy to traffic in a dangerous drug.  The respondent accepted that the applicant was a key witness for the prosecution in Mr Cheung’s case and that Mr Cheung was the mastermind of this drug trafficking operation.  She confirmed that he had been earlier released due to insufficient evidence and only re-arrested after the applicant had made his statement.

27. Ms Wong did not oppose the application for an extension of time by the respondent, and submitted that the applicant was entitled to a discount of 40% to 45% from the starting point of 28 years to reflect his guilty plea and assistance to the police.  In her written submission she referred to the court Z v HKSAR, HKSAR v Ng Shek Yu[3], HKSAR v Herrera Jhorman[4], and HKSAR v Tsoi Sin Yee[5].

Discussion

28. The application for an extension of time is made under section 83Q(3) of the Criminal Procedure Ordinance, Cap 221.  For the proper exercise of our discretion in respect of this power we are guided by the comments of Stock JA, as he then was, in HKSAR v W [2004] 3 HKC 376 when giving the judgment of the Court of Appeal.  At page 382, paragraphs 16-17 he said:

“ We are satisfied that in these cases, where a reduction in sentence is sought by reason of post-first-instance assistance to the authorities, the fact that time for filing the notice of application has passed is no more conclusive of an application for leave to appeal than it is in the normal case. The first question, always, is whether time should be extended. To that end, the starting principles are those suggested by Silke VP in R v Wong Kai Kong [1990] 1 HKC 279, at p 3 …

  The application of these principles must necessarily be case-specific, and in a case where there has been substantial assistance to the authorities since sentence at first instance, there can be no doubt but that the public interest requires that credit be given to an applicant who has provided such assistance and that it be known that such assistance is available, and that the general measure of the credit to be gained should be known (even though in some cases the fact and nature of the assistance will necessarily be a matter that has to be kept confidential). These objectives can best be achieved by the courts, and in addition, there are other reasons suggested by Litton JA in Reid for the courts to act rather than the Executive where that can properly be done. So it will inevitably be the fact that in cases within the present category, the merits will play a large part in the decision whether to extend time. Yet that cannot guide the decision to the exclusion of all other factors. The longer the passage of time, the less likely is it that time will be extended unless there be given sound reason for the delay.”

29. Although the applicant commenced his assistance to the authorities prior to being sentenced, it did not bear any fruit until after he was sentenced.  Shortly thereafter he initiated these proceedings. The delay overall is quite minimal and able to be satisfactorily explained.  That being so, we are of the view that this is a proper case to grant the applicant the extension of time he needs to apply for leave to appeal his sentence.

30. There is no doubt that the applicant has provided genuine and valuable assistance to the police.  By providing them with a witness statement the prosecution was able to charge a person whom it is accepted was the mastermind of this cross-border drug trafficking operation.  Once this person realised the strength of the prosecution case against him he pleaded guilty to a charge of conspiracy to traffic in dangerous drugs.  This was a person who would otherwise have escaped justice.

31. There is no doubt that it was the applicant’s cooperation which led to Mr Cheung’s plea of guilty and that without it the police investigation would only have resulted, as so frequently happens, in the punishment of the lower level traffickers.  As a result of the applicant’s assistance a much more senior and very active drug trafficker has been removed from circulation and appropriately punished.  Furthermore, the applicant was able to reveal more information about Mr Cheung which led to his prosecution on an additional count of conspiracy to traffic in dangerous drugs.  Although this count was left on the file it has been confirmed by Ms Wong that it played a part in the plea negotiations with Mr Cheung and in his ultimate decision to plead guilty.

32. In these circumstances we are satisfied that the applicant is entitled to a 45% discount from the starting point of 28 years’ imprisonment.

Conclusion

33. For these reasons we allowed the application, set aside the sentence of the judge and in substitution for it sentenced the applicant to 15 years 4 months’ imprisonment.

[1] [2014] 3 HKLRD 691

[2] (2007) 10 HKCFAR 183

[3] CACC 178/2000, unreported, 1 March 2001.

[4] [2013] 1 HKC 119

[5] CACC 27/2014, unreported, 15 July 2014.