THE QUEEN v. CHU TSZ HEI

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REASONS FOR JUDGMENT

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Clough, J.A.:

1. These are our reasons for refusing leave on the 15th March 1991 to the applicant Chu Tsz-hei to appeal against the sentence of 20 years imprisonment passed on him on the 9th July 1990 by His Honour Judge Leonard, sitting as a Deputy Judge of the High Court, for the offence of conspiracy to traffic in dangerous drugs contrary to sections 4 and 39 of the Dangerous Drugs Ordinance (Cap. 134). The applicant pleaded guilty to the offence on the 16th May 1990 when arraigned (with two others) at the beginning of the trial and was remanded in custody for sentence at the conclusion of the trial of his two co-accused.

2. The conspiracy to which the applicant pleaded guilty was the same as that to which his co-conspirator Lau Yau-yuen (see Criminal Appeal No. 337 of 1990 heard, but not determined, immediately before the hearing of this application) had pleaded guilty, save that the conspiracy period in the indictment upon which the applicant was arraigned was longer, extending from the 1st December 1987 to the 1st November 1988. The facts admitted by the applicant were that in mid 1988 the applicant had entered into a conspiracy with a group of men, including Lau Yau-yuen, to purchase a yacht in the Philippines and to sail it to Hong Kong for the purpose of loading it with about 40 kg of high purity heroin to be shipped to Australia where it was to be sold and distributed by one of the conspirators. Pursuant to the conspiracy about 43 kg of heroin was procured of which about 18 kg was financed by the applicant. The wholesale value of the 18 kg was about (HK) $1. 5 million and its retail value in Australia about (HK) $21 million.

3. It was also admitted by the applicant that he had been a major organiser of the trafficking syndicate, not only regarding the procuring of the heroin but also in the co-ordinating of the logistical aspects of the plan, arranging crewmen and couriers both in the Philippines and Hong Kong.

4. His plea of guilty had been foreshadowed by his counsel at the pre-trial review in early May 1990 when his counsel had also indicated that the applicant had been willing to give evidence and "possibly to give information". He was interviewed by the police on the 15th May 1990 concerning the conspiracy but the Crown formed the view that his evidence would be of no value to the Crown's case at the pending trial of two of the applicant's co-conspirators. The applicant's counsel informed the sentencing judge that, as matters stood (subject to correction by the Crown), the applicant had not given information that was of any use to the Crown. Thereupon counsel for the Crown very properly informed the court that the applicant had indicated that he could give some information concerning the identity of those who were selling drugs in the estates, but the police were at the time concerned only with the present case and much more serious matters.

5. In mitigation Mr. Macrae, who represented the applicant below and on appeal, began by saying that this certainly approached a case which was so serious that mitigation became almost superfluous. However, after referring to Cheng Yeung [1989] 2 HKLR 258 (which he later acknowledged on the judge's intervention had not been decided at the date of the offence) Mr. Macrae submitted that the offence was not the worst of its kind (not being a case involving manufacturing) and so a starting point should be adopted around the "cut off" point of 20 years. The judge was urged to subtract at the very least "the conventional or appropriate discount for his plea of guilty" which had been indicated at the pre-trial review stage, and:

"on top of that any discount that you deem would be proper and I would concede, my Lord, that it would be small in relation to what offer he has made and what information he has given. "

6. The judge (who had tried the applicant's co-accused) regarded the applicant as clearly one of the leading conspirators. In arriving at a starting point of 25 years imprisonment for the applicant as a leading conspirator (as he had done on the 22nd June 1990 in the case of the applicant's co-conspirators Lau Yau-yuen and Mo Lee-keun) the judge said:

"The offence to which you have pleaded guilty is an extremely serious one. Not only did the conspiracy relate to a very large quantity of No. 4 heroin but also a conspiracy involved the exporting to Australia of drugs which would have had a very serious effect on the population of that country.

 

It is important that the court should make it clear that Hong Kong is not to be used as a base for such activities.

 

There were guidelines in existence at the time of this offence for sentencing for the offence of possession of dangerous drugs for the purpose of unlawful trafficking, but those guidelines did not give any indications as to the proper sentence for an offence of this seriousness involving such a large quantity of drugs. Furthermore those guidelines relate to an offence of possession for the purpose of unlawful trafficking and not for conspiracy.

 

Taking into account all the circumstances of the case, I consider that an appropriate starting-point for sentence in your case is twenty-five years' imprisonment. "

7. As regards mitigation, the judge said he would give the applicant credit for pleading guilty early and indicating at the pre-trial review that he would so plead. He therefore reduced the sentence to 20 years imprisonment. He said nothing about the willingness of the applicant to give evidence or information.

8. On the applicant's behalf Mr. Macrae submitted in this court that the judge had adopted too high a starting point for a single one consignment conspiracy which did not relate to massive quantities of drugs. Mr. Macrae adopted the arguments advanced by Mr. Plowman in the course of Lau Yau Yuen's application in support of a starting point of 20 years. He cited all the cases (and no others) which had been cited by Mr. Plowman.

9. Mr. Macrae also contended that the discount of 5 years was insufficient. He submitted that a 20 per cent discount was "mean" and that credit should have been given for the applicant's willingness to give evidence and for the information he was prepared to give regarding drug trading in the estates.

10. As regards the starting point of 25 years imprisonment adopted by the judge, we have already given our reasons for upholding it in our reasons for refusing Lau Yau-yuen's application. In both cases the applicant's were principal conspirators. They should both have been sentenced from the same starting point for the same offence. There is nothing we can usefully add to what we said in Lau's case.

11. As regards the discount of 5 years, we were not persuaded that it was insufficient or inappropriate to the circumstances of the case. The applicant indicated his intention to plead guilty and co-operate with the police at an early stage, namely in early May 1990 at the pre-trial review in respect of a trial which was due to begin on the 16th May 1990. This earned him a substantial reduction in sentence. But he was arrested about 6 1/2 months earlier on the 21st October 1988. It was not therefore a case where a defendant has co-operated with the police from the time of his arrest or very soon afterwards.

12. We were unable to accept that the applicant should receive a discount for offering to give evidence against his co-conspirators which the Crown found of no value. The situation was not one where a genuine promise to give evidence of value to the Crown, although unfulfilled, had been frustrated through no fault of the promisor by some independent cause such as the absconding of the accused due to be tried on that evidence. The evidence here was valueless. The promise to give it did not therefore have any actual value. Moreover the information regarding drug sellers in the estates was at least 6 1/2 months old (as Mr. Macrae pointed out) and the Crown did not in any event find it of any value.

13. In our opinion the applicant could not therefore expect any addition to the credit he had earned by his indication at the pre-trial review stage that he would co-operate with the police and plead guilty at the trial. For this the judge gave him a discount of 5 years on a 25 year sentence. We accept that a discount of 25 per cent for a plea of guilty is commonly given but there is no fixed and rigid percentage and each case must be dealt with in accordance with its particular circumstances. As Cons V-P observed in Han Man Fai [1989] 1 HKLR 290 at p. 293 F-G:

 

"We do not wish to be drawn into any mathematical discussion. We would only say that judges do appear to us to give discounts, depending of course upon the circumstances of the individual case, which are generally in the region of 25%. "

As Power J. A. commented in Cheung Wai Yuen (Unreported) (Criminal Appeal No. 625 of 1989) in relation to those words:

 

"The words themselves make it plain that the court was not laying down there any mathematical formula for discounts. Each case must depend upon the circumstances of the individual case. "

14. In the present case, having regard to the time when the applicant decided to co-operate with the police and plead guilty, and to the fact that the evidence and information offered by him to the police proved valueless, we were not persuaded that the 5 years discount allowed by the judge was insufficient.

15. Accordingly the application was refused.