HKSAR v. CHIU HO CHUNG

CACC 263/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 263 OF 2000

(ON APPEAL FROM HCCC 198/1996)

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J U D G M E N T

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

1. This is an application for leave to appeal out of time against sentence. The applicant was sentenced in the High Court on 23 August 1996 to a term of 15 years' imprisonment pursuant to pleading guilty before Saied J to trafficking in a large quantity of heroin. His notice of application was filed in July 2000, and in it he says that in the course of the four years since his incarceration for this offence, he has come to realize when comparing his fate with those of others whom he has met in prison and who were convicted of trafficking offences involving similar quantities, that the starting point adopted by the trial judge in his case was higher than that in comparable cases. He feels aggrieved therefore, and wishes to make this application.

2. The facts of his case can be shortly stated. On 15 February 1996, he was seen driving his vehicle into a carpark. He parked it next to another vehicle also owned by him, and he then transferred drugs from one vehicle to the other, ready to take the transferred drugs out for delivery. In the vehicle he had driven were found 12 blocks of heroin, and in the already parked vehicle another 8 blocks. He was arrested by the police at the scene and readily admitted his culpability, telling the police that he was a courier. His home was visited, and whilst there he attempted to stab himself.

3. He pleaded guilty at an early stage to the charge which alleged trafficking in 6,991.02 grammes of a mixture containing 4,938.95 grammes of heroin. He was then aged 36 years, and a man of no previous convictions.

4. His mitigation comprised two significant limbs: first, his own plea of guilty and second, other information placed before the court of some weight, regarding assistance which he had given to the authorities. The judge took a starting point of 30 years' imprisonment on account of the very large quantity of drugs, citing the case of R. v. Tsui Chi-pong CACC 663/1995 (unreported) where the Court of Appeal upheld a 30 year starting point for a similar quantity of drugs. The judge reduced that by one third to give credit for the plea of guilty, and by a further five years for the other mitigating factors, namely, his assistance and his previous good character, resulting in a sentence of 15 years' imprisonment.

5. The applicant does not complain about the percentage reduction given in relation to these mitigating factors but, as we say, he complains about the starting point.

6. Putting aside for the moment the question of time and dealing with the sentence purely on its merits, the question we must ask is whether the sentence was manifestly excessive. When one examines sentences passed over the years in cases since Lau Tak-ming involving very large quantities, they do indicate that the starting point adopted in this particular case appears on its face to be very high, though reference to sentences passed on other occasions is of limited use where those other cases do not provide guidelines or tariffs. As Nazareth V-P said in HKSAR v. Yau Po-hung CACC 245/1998:

"For very large quantities defined in Lau Tak-ming as over 600 grammes the court left the starting point at over 20 years. Accordingly, the courts have a large measure of discretion. It does not seem to us that it would be appropriate or indeed that it is possible to suggest any particular term as appropriate to quantities similar to those in this case."

7. Looking at this case, the quantity was large indeed. That said there existed, other than this large quantity, a grave matter in itself, no aggravating factors, and we are of the view that the starting point of 30 years was manifestly excessive.

8. In our judgment a more appropriate starting point would have been one of 25 years. The judge gave a discount of one third for the applicant's plea, and that was appropriate. He further gave discount for the fact that the applicant had rendered assistance to the authorities. That was described as useful assistance about a syndicate and a willingness to give testimony. Taking that assistance into account (the possibility of future testimony having been acknowledged to be irrelevant at that stage) and the applicant's previous good character, the judge gave a total 50% discount. Where testimony has not yet been given, and no arrest made, the discount of 50% was over-generous. It was therefore of some importance for us to ascertain from the respondent the nature of the assistance given - since that is not clear from the papers before us - whether that assistance led to arrests and so on. The respondent was in no position to provide us with that information. Counsel should have been in a position to assist. In the circumstances, we must proceed on whatever basis is most favourable to the applicant, and accordingly apply the same percentage reduction as was applied by the trial judge. In the circumstances, therefore, we would say that the appropriate sentence in this case would have been one of 12 1/2 years' imprisonment.

9. The applicant was sentenced in 1996, so he comes to this court on appeal some four years plus out of time. He advances as an explanation the fact that it is only in the course of the years that have since passed that he has come to appreciate how out of line his sentence was when compared with sentences imposed on others convicted of trafficking in similar quantities. It might be said that the applicant should have been advised at the time to appeal. But the judge had made reference to a case in which a starting point of 30 years had been upheld in a case involving a similar quantity. There is a limit, as we say, to the use that can be made of other cases and we note that in the case to which the trial judge referred, the applicant was a hardened drug trafficker, having been previously sentenced to a term of 10 years' imprisonment for trafficking in dangerous drugs. In so far as the judge wished to take notice of sentences in other cases, he did not, for example, refer to and, his attention was presumably not drawn to an earlier case, R. v. Szeto Tsz-kwong CACC No. 798/1995 in which 25 years was taken as a starting point for a much higher quantity still. It may in the circumstances be that the applicant was left with the false impression, particularly given the judge's reference to another case, that 30 years was about the tariff for the quantity of drugs involved in his case.

10. In the event and for the reasons we have stated, we think it right to give the applicant leave to appeal sentence out of time. We allow the appeal, and we substitute for the sentence imposed a sentence of 12 1/2 years' imprisonment.

11. We wish before leaving this case to comment on the absence of any written submissions by the respondent. A view seems to have taken root with some counsel who appear for the respondent in applications for leave to appeal against conviction or sentence which are to be presented by applicants in person, that there is no need for the respondent to provide the court with any assistance in writing before the hearing. That approach can only be predicated on some assumption that because the applicant is in person, the application must be unmeritorious and that there is nothing that can possibly assist the court. Both assumptions are false. The present case is a good example. The court was left entirely unaware until this morning of the stance that was to be taken by the respondent. It ought to have been obvious, in our view, that the starting point was particularly high and that some research was required to ascertain whether there was something in the point taken by the applicant. Whichever way that research fell, the result should have been placed before the court. Whilst other cases are often of limited use, in this particular case a look at the authority upon which the trial judge relied showed particular aggravating features, and a look at other decisions involving these quantities would have shown how out of line this particular sentence was. In the event it was left entirely for this court to find and examine the cases. The court had no written submissions from the respondent hinting at relevant trends, or commenting on the appropriateness or otherwise of the approach of the trial judge. Nor was there any submission in advance which told the court anything about the assistance which the applicant gave to the authorities to which the trial judge referred in his sentencing comments. Even at the hearing itself, counsel was completely unable to provide any assistance. This is not acceptable. We perceive it to be the duty of the prosecution to place before the court in every case such submission in advance as may be of assistance in that case. It may very well be that there will be cases in which the submissions will necessarily be very brief, for the facts and the grounds of appeal will call for nothing more. What is necessary will depend on the case. But we have experienced too many cases in which submissions would have been of use but none have been provided.