HKSAR v. FAN CHI KEUNG

IN THE COURT OF APPEAL

1997, No.248
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant FAN Chi-keung faced one count of trafficking in a dangerous drug. That count alleged that he and Chung Mei-lin on 17th July 1996 at Room B, Block C, 9th Floor, Hing Fat Building, 696 Shanghai Street, Mongkok, unlawfully trafficked in 215.49 grammes of a mixture containing 161.66 grammes of heroin hydrochloride. He pleaded guilty to that charge and was sentenced to imprisonment for seven years. He now seeks leave to appeal against that sentence.

2. The applicant was himself a drug addict. He was at the time of the offence running a supply centre for a person called Frankie. The other defendant was his former girlfriend and she also was an addict and had become involved in the supply operation after she had approached him seeking dangerous drugs.

3. The applicant has a bad record for serious offences which includes two of trafficking. His plea of guilty was the circumstance of real weight in the assessment of sentence.

4. The trial judge said:

"The one, indeed, the most important area of mitigation put forward on his behalf is that on the first day of the scheduled trial, this defendant indicated that he wished to plead guilty to the offence charged and did, in fact, do so when he was arraigned. Further than that, he made it clear to the prosecuting authorities that he was willing to give evidence as a Crown witness against his co-defendant, Chung. To this end, he did give a very full and frank witness statement to the police, and I have had sight of that statement.

I have also been advised by prosecuting counsel that his co-operation may be of benefit to the police in other areas. The fact that his co-defendant Chung on reflection has changed her plea from one of not guilty to guilty, means of course that Fan has not actually had to step into the witness-box to give evidence, but that, in my judgment, having regard to his actions of a patent co-operation over the last few days, is a matter of little moment. The plea may have been relatively late in coming but there is no doubt that his intention to give evidence for the Crown added materially to the prosecution arsenal of evidence."

The judge then referred to decisions which indicate that a discount should be given for a plea of guilty and for a real measure of co-operation with the police. He assessed a starting point of 11 years which was a proper one given the quantity of drugs involved. He then gave a discount of four years.

5. The grounds which the applicant has put forward to us in writing state:

"I did give evidence in this case which resulted in the conviction of my co-defendant. I had been a prosecution witness but the judge did not take this into account by giving me the deserved discount for sentence."

We think he must by that mean that he gave a statement involving his co-defendant.

6. He added to these grounds by a letter dated 8th October in which he said that he had supplied information to the police which led to conviction of the co-defendant. This puts the position correctly and this was acknowledged by the trial judge.

7. The applicant further stated:

"Now I have already supplied information to Inspector Lau siu-nam of the Narcotics Bureau which led to the arrest of Frankie."

8. Mr. Blanchflower, who appears for the prosecution, has in his written argument indicated that it is true that the applicant gave information about Frankie but this was prior to his arrest for this offence and was not a matter which could be properly taken into account to his credit when assessing the sentence to be imposed on this offence. That seems to us to be unarguably so. The starting point of 11 years was a proper one. The discount because of plea and co-operation of four years was in our view properly assessed and there is, therefore, nothing that would allow us to interfere with the sentence.

9. The application is refused.