HKSAR v. LEE YAT FAN

CACC 414/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 1999

(ON APPEAL FROM HCCC NO. 429 OF 1998)

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J U D G M E N T

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Hon Stuart-Moore, VP (giving the judgment of the court) :

1. On 20 July 1999, following a trial before Deputy Judge Wesley Wong and a jury, the Applicant was found guilty on two counts of trafficking in heroin hydrochloride for which he was sentenced to a total of 15 years' imprisonment. He now seeks leave out of time to appeal against his sentence.

2. The Applicant appeared before this court, (differently constituted), on 14 June 2000 on an application for leave to appeal against conviction. This was dismissed on the same day. By affirmation dated 14 August 2000, the Applicant gave notice of his intention to seek leave, approximately a year out of time, to appeal against sentence. His explanation was that he had understood from the day he was sentenced that the total term of imprisonment he had to serve was 12 years. He had, in fact, received a sentence on Count 1 of 12 years' imprisonment. On Count 2, although he had also been sentenced to 12 years, this was ordered to run 3 years after the sentence on Count 1 had commenced, making 15 years in all.

3. The Applicant stated in his affirmation that if he had realized his sentence was 15 years, he would have been prompt in entering his application regarding sentence. The Applicant also affirmed that the first time he realized he had to serve 15 years was on the 13 July 2000 when a principal prison officer at Stanley Prison told him that his sentence had been "rectified as 15 years" and that his earliest release date would be 31 August 2008 instead of two years earlier as he had previously been led to believe.

4. We view with some scepticism the explanation for the Applicant's late application. He was in court when he was sentenced by the trial judge to 15 years, and he was in court when the judgment was given on his application relating to conviction. On both occasions, it was clearly stated that the Applicant's overall sentence was 15 years' imprisonment, whether or not the staff at Stanley Prison may have given the Applicant a different impression.

5. We are bound to say that we feel it is very likely that the Applicant did not seek leave to appeal because he was conscious that, if he did so, the prison's misapprehension about the length of his sentence would be discovered. However, in the particular circumstances of this case, we felt it proper to hear the application out of time de bene esse as to the merits.

6. The sole ground of appeal was straightforward. Mr. Ross, on behalf of the Applicant, who has adopted his written submissions, stated that the sentence now being served by the Applicant amounted to one which could properly be described as manifestly excessive having regard to the assistance given by the Applicant to the police and prosecuting authorities in HCCC 97/2000. Mr. Ross accepted that the sentence of 15 years was otherwise not open to criticism under the guidelines in R v Lau Tak-ming and another [1990] 2 HKLR 370. Whilst the facts of the case are unimportant, the Applicant had been trafficking in mixtures the overall narcotic weight of which amounted to about 443 gms of heroin hydrochloride.

7. We have been informed that HCCC 97/2000 was concerned with two counts of robbery and one count of attempted rape. The first robbery occurred on 25 September 1999 in Pok Fu Lam. The remaining offences were committed in Mid-levels on 27 September 1999. The defendant in that case, Cheung Kwan, was an illegal immigrant who had pleaded not guilty to all the charges. The trial involved a considerable amount of evidence not only from the victims but also from scientific sources and the police. When the defendant was interviewed, he pretended to be unable to speak and he recorded his answers in writing. This action in itself supported the defendant's case that he could not have been the culprit responsible for the offences in the indictment of HCCC 97/2000 because the victims had heard the attacker speaking.

8. It was in this context that the Applicant provided important evidence for the prosecution. He had heard the defendant speaking in Stanley Prison where, for a time, the Applicant had shared a cell with the defendant in HCCC 97/2000. He was prepared not only to tell the police about it but to come forward as a witness to say so. The Applicant made a statement on 27 July 2000 and he testified soon afterwards at the defendant's trial. In essence, his statement revealed how the defendant felt "cheeky", as he put it, at successfully persuading a doctor to certify him as being "dumb". In due course, the defendant was convicted in that trial and he received a sentence of 10 years' imprisonment.

9. Normally, after this length of time, an appeal for clemency to the Executive would be appropriate and this court would not entertain such an application. However, following discussion between counsel, it was accepted that, bearing in mind all the circumstances which may have caused the very long delay before an application for leave to appeal against sentence was lodged, if the court was minded to entertain the application, the Applicant would be entitled to a discount of about 20%.

10. In view of the assistance given to the authorities which was to an extent peripheral to the main issues in the trial of the defendant in HCCC 97/2000, we accept that the Applicant deserves a substantial discount. His evidence cancelled the effect of the doctor who was or may have been called to say that the defendant in that case was unable to speak. We consider that in view of the Applicant's pleas, which were not deserving of any discount, it would be wrong to give to him now what may be regarded as the usual discount of 50% which is given to those who have pleaded guilty and given truthful and material evidence against others on trial. A discount of 50% assumes an original discount of about 33% for the plea of guilty. The remaining 17% is usually given for providing a statement against some other offender and going into the witness box to testify. Counsel did not seek to argue against this proposition.

11. In all the circumstances, we feel able to grant leave to appeal out of time. The Applicant's sentence can, we feel, be reduced by 20%. Taking this from the sentence of 15 years, the Applicant's sentence would be reduced to 12 years' imprisonment. This, by coincidence rather than by design, would leave the Applicant having to serve the sentence he had at one stage erroneously been told by the prison authorities he had to serve.

12. Treating the hearing as the appeal, we shall substitute a sentence of 12 years' imprisonment by making the sentences on both counts run wholly concurrently. The appeal succeeds to this extent.