HKSAR v. W

CACC 527/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 527 OF 2003

(ON APPEAL FROM HCCC 23 OF 2003)

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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):

Introduction

1. The applicant pleaded guilty to trafficking in 0.14 kilogrammes of heroin hydrochloride and was sentenced on 17 March 2003 by Deputy Judge McMahon, as he then was, to a term of six years and eight months' imprisonment. This is an application for leave to appeal against that sentence. The sole ground of the application is that after sentence in the Court of First Instance, the applicant has rendered assistance to the authorities; in particular, by giving evidence at the trial of a man whose name he supplied to the authorities as the person who provided him with the drugs which he was carrying over the border at Lo Wu.

The relevant facts

2. The material facts and dates are these. The applicant's possession and act of trafficking of the drugs in question was to carry them across the border at Lo Wu into Hong Kong, and he was arrested at the border. In the course of mitigation on 17 March 2003, counsel for the applicant told the sentencing judge that:

"... the person who recruited the accused to carry the drug, I understand from the accused that if he ever comes before the court and faces trial, the accused is willing to give evidence against him. Of course, it has been explained to the accused that it is a promise unfulfilled, so it is not really an effective mitigating factor as such at the moment. However, I'm instructed to draw the court's attention to this matter.

COURT: Well, if in due course, things turn out that way, perhaps you could approach the executive...

MR WONG: That's right, that has been explained to him and he appreciates that." (Appeal Bundle, p. 3).

3. In his sentencing remarks the judge, quite rightly at that stage, said:

"The only mitigation able to be advanced on the part of the defendant is his plea of guilty. In my view, his promise to give evidence against the person who he said he had brought the drugs to Hong Kong for, is no more than, at present, a promise, and I do not take it into account for the purposes of mitigation." (p. 4 Appeal Bundle).

4. Within two or three days of sentence the applicant spoke to police officers and supplied useful information which led to the arrest of the person concerned, and as soon as 8 April 2003 that person was identified by the applicant at an identification parade, and in early November 2003, the applicant gave evidence against him at his trial and he was duly convicted. The applicant filed his notice of application for leave to appeal against sentence on 5 December 2003, that is, some eight months after time had expired but within a month of giving evidence at the trial of the other man. At all stages after sentence in March 2003, the applicant was unrepresented. He adds in his explanation for the delay that he was ignorant of the law and was not at that stage able to afford a lawyer.

The issue

5. The problem that arises is not that of the merit of the appeal itself, but the fact that the applicant filed his notice of application for leave to appeal some eight months after the time prescribed for lodging the notice of application had expired. Mr Madigan's written submission contended that in the light of established authority, the only proper recourse for the applicant was to approach the Executive, and it may well be, looking at the passages in mitigation to which we have been referred, that that was also the advice which, by the date of sentence, the applicant had been given by his legal advisor. Mr Mitchell-Heggs, counsel now appearing for the applicant, says in reply that there is authority which contradicts the cases upon which Mr Madigan relied.

Analysis

6. The authorities to which we have been taken appear to present disparate approaches by the court: the first, a line which says that once time for appealing has passed, the remedy for a person in the position of this applicant is to go to the Executive; the second, a line that appears to take a more robust approach, giving leave to appeal out of time where the merits of the proposed appeal itself are strong, regardless of any reasons for delay.

7. There is an obvious attraction in a robust approach, since:

"The responsibility for the proper punishment of offenders rests with the courts. This is done by the application of guidelines and principles to the facts of the particular case: guidelines and principles which the courts themselves have evolved over the years. When the court gives a defendant a discount of 50% of the sentence for the assistance he has rendered to the police in the prosecution of other offenders, or even a two-thirds reduction for the super-grass - see, for instance, the observations of Roberts, C.J. in R. v. Chan Fu-kui [1986]HKLR 967 at 968E to F - it articulates its reasons in open court, applying well-considered policy reasons to the treatment of offenders. As a matter of principle it seems to me that the practice of leaving it to the executive to deal with the proper discount under Article XV of the Letters Patent can only be justified if there is no other course the courts themselves can properly take, since the remission of sentence under Article XV is done behind closed bureaucratic doors and is the exercise of a purely executive function."

per Litton JA (as he then was) in In re C.W. Reid [1994] 2 HKLR 14, 24.

8. Yet Litton JA was not thereby seeking to suggest that courts may arrogate to themselves jurisdiction in relation to sentencing when on the proper application of relevant principle, the sentencing process has finished. What he was saying, in terms - in the context of a case in which the sentencing judge, knowing that evidence was to be given by the defendant, had very unusually intimated what discount the Executive might thereafter accord - was that leaving it to the Executive was a course only acceptable "if there is no other course the courts themselves can properly take". The courts do not properly take a course if they have no jurisdiction or where they assume jurisdiction by a wrongful exercise of discretion.

9. Litton JA also made reference to the decision in R v Sze Tak-hung [1991] 1 HKLR 109 where it was said, at page 113A, that the sentencing process did not stop with the courts below but continued "until finally dealt with by this Court...." and he said, again by reference to that decision, that:

"... and at p.112A the Acting Chief Justice observed that it is not uncommon for this court to take account of circumstances that had occurred since sentence was passed. A relevant circumstance might well be the fact that, since sentence was passed, the defendant has testified in other proceedings, or given assistance in other ways in the pursuit or conviction of other offenders. If this be an appropriate route for a defendant to take then recourse to Article XV, even in those cases where postponement of sentencing was not feasible, should be very rare indeed."

See In re C.W. Reid [1994] 2 HKLR 14, 24.

10. In the two cases since Reid to which we have been referred (and we dare say there may be others) this court, although without reference to Reid, has adopted an approach that weighted the merits decisively against the time factor. In HKSAR v Pun Ching-to and another, Cr App No. 52 of 2001, 5 February 2003, unreported, the applicants had pleaded guilty in November 2000 and were late in their applications for leave. The judgment does not tell us how late, although since the appeal hearing was in February 2003, we can assume that the delay was quite significant. What the court there said, at page 2, was this:

" Both Applicants were late in filing their applications. However, bearing in mind that the principal nature of these applications is related to their cooperation with the authorities after sentence had been passed upon them, the delay in filing their applications is a matter of little significance. It is obvious that this court would have been unable to assess with any degree of finality the assistance the Applicants have provided until comparatively recently. In this light, we propose to grant leave out of time to hear these applications."

11. In HKSAR v Lai Kwan-ming, Cr App No. 583 of 2002, 25 April 2003, unreported, the applicant had pleaded guilty in August 2002 and filed his notice of application that November, so that he was only two months out of time, and the court there relied upon and cited the passage from Pun Ching-to to which we have just referred.

12. Neither in Pun nor in Lai was there cited the cases upon which Mr Madigan relied in support of his original proposition that, given the delay, the avenue of recourse for the applicant was not the courts but the Executive.

13. The first decision of this latter category was R v Mak Chan-pui, Cr App No. 483 of 1992, an unreported decision of this court delivered on 7 March 1996, well after Reid. The applicant in that case pleaded guilty in 1992 and had abandoned his application, but by a letter dated December 1995 (three years later, that is) he asked the court's leave to treat the abandonment as a nullity. He too wished to derive benefit as a result of testimony given (in 1994) against a mastermind. What Mortimer JA (as he then was) said, at pages 2-3, was that:

"As this Court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this Court. That course is still open to this applicant. There are no grounds upon which this Court ought to allow this application which is refused."

14. This approach was echoed in HKSAR v Chan Siu-keung, Cr App No. 348 of 1996, 9 February 1999, unreported. Chan had been convicted after trial in May 1996 and sought leave to appeal against sentence out of time, and after sentence provided material assistance to the ICAC. What the court there said, at page 3, was that:

"... any information concerning other offences he might have furnished to the relevant authority was given after he had been sentenced. In R. v. Mak Chan-pui Crim. App. No. 483 of 1992, this court said: 'As this court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this court.' Thus, so far as these grounds are concerned, the applicant may petition to Chief Executive to seek a reduction in the sentence on those grounds and it is not open to him now to seek leave to appeal against sentence out of time."

We do not know the date of his application for leave, but we can take it from the dates of which we are aware that the time lapse was very considerable.

15. We do not quite understand why it was said in Chan Siu-keung that it was not open to that applicant to seek leave to appeal out of time. It is always open to an applicant to seek an extension of the time required for filing of the notice of application: see section 83Q(3) of the Criminal Procedure Ordinance, Cap 221. The question always is whether such an application for an extension of time should or should not succeed. To the considerations which should be applied to such an application, especially in cases of the present kind, we will shortly turn, but if an extension of time is given for the filing of the notice then it will follow, assuming the notice has been filed, that the sentencing process has not finally been dealt with by the courts, so that credit for the conduct since sentence in the court below can, in an appropriate case, be recognised in an applicant's favour. In Mak Chan-pui, no reasons are rehearsed for the very extensive delay in filing the application, and we must assume that no good reason existed; and we note as well that so extensive was the delay that absent some cogent reason for it, an extension was not on the application of proper principles justified.

16. 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 V-P in R v Wong Kai-kong and another, Cr App No. 332 of 1989, 15 June 1990, unreported, at page 3:

" In considering whether the applicants should be granted the indulgence they seek it is first necessary for us to consider not only the reasons advanced in the grounding affidavits for the failure timeously to make application but also the period of time which has elapsed between the conviction and the application - here, as we have indicated, ten months - and generally the bona fides of the applicant. But there is also a line of authority which runs from the judgment of the English Court of Appeal in Marsh [1935] 25 Cr. App. R. p. 49 through to a decision in this jurisdiction The Queen v. Ip Chung Hang (C.A. 345 of 1988 - unreported) and we also bear in mind that which took place in a reported case of The Queen v. Yiu Tat Hoi [1983] HKLR 7.

The proposition emerges from those authorities that it is open to this Court to take that which Hunter, J.A. in Ip Chung Hang described as an "unusual course'', that the Court look at the grounds of appeal to see if they seem to its members to be impressive and to check

'that by refusing leave to appeal we were not shutting out a substantial and plainly arguable ground of appeal.'

In this exercise this Court should bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence. The longer the delay the more onerous is the duty on the person making application ..."

17. 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.

This case

18. In this case, both the reasons for the delay and the merits in themselves are very much with the applicant. He acted almost immediately after the hearing at first instance in order to assist the authorities and he evidently took the view, without the benefit of legal advice, that he should wait until the active steps which he was then engaging came to fruition before he lodged his notice of application. The time that elapsed was quite long but not overly so, and he filed his application very soon after his assistance was rendered. In all the circumstances, this is a case in which it would clearly be appropriate to extend time in which to file the application, and we extend time accordingly.

19. Turning then to the application itself, the assistance given in this case does not take the applicant into a "super grass" category. But it takes the applicant into a category beyond the normal case of assistance leading to arrest and giving evidence in a case against the person arrested, for in this case the applicant persisted in his assistance despite letters, which we have seen, which he received whilst in prison which were clearly threatening in their message. The pressure placed on him not to testify was heavy, and his determination not to succumb to that overt pressure deserves some extra credit. The judge had taken a starting point of ten years' imprisonment in this case and reduced that sentence to one of six years and eight months' imprisonment because of the plea of guilty. In the light of the evidence we have seen as to the events since then, we think that the appropriate sentence is one of four years and six months' imprisonment.

Conclusion

20. Accordingly, we will grant leave to appeal and, treating the hearing of the application as the appeal, we allow the appeal and substitute a sentence of four years and six months' imprisonment.