HKSAR v. CHUI TAK MAN

CACC 31/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 31 OF 2014

(ON APPEAL FROM HCCC NO. 322 OF 2012)

____________

____________

____________

____________

Hon Lunn VP (giving the judgment of the court):

1.  The applicant seeks leave to appeal out of time against the sentence of 7 years’ imprisonment imposed upon him by Barnes J on 22 November 2012 on a single charge of unlawfully trafficking on 1 February 2012 in dangerous drugs, namely 43.28 grammes of methamphetamine hydrochloride (“ice”) and 38.39 grammes cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Having pleaded guilty to the charge in the Magistracy on 14 September 2012, the applicant was committed to the Court of First Instance.

The facts

2.  The applicant accepted that on the evening of 1 February 2012, having being intercepted by Customs & Excise officers at the Lo Wu Control Point as he entered Hong Kong from the Mainland, a search of his person revealed the dangerous drugs the subject of the charge concealed beneath his clothing.  The applicant had left Hong Kong to travel to the Mainland earlier the same evening.  Although, initially the applicant had contended that the dangerous drugs were for his own consumption, he accepted that he was trafficking unlawfully in the dangerous drugs.

Reasons for Sentence

3.  In her reasons for sentence, the judge noted that it had been acknowledged on behalf of the applicant that there were aggravating features in the commission of the offence, namely the fact of the importation of the dangerous drugs into Hong Kong and that the applicant had 13 previous convictions, including four for possession of dangerous drugs and that his most recent conviction in October 2008 was for unlawfully trafficking in dangerous drugs, for which offence he had been sentenced to 5 years’ imprisonment.

4.  Having referred to the judgment of this Court in HKSAR v Yip Pik-kwai [1], the judge approached the stipulation of a starting point for sentence, on the basis that the aggregate amount of the two different kinds of dangerous drugs, namely 81.67 grammes, was first, ice and secondly, cocaine.  In that calculation she said that she subsumed the aggravating factors into the identification of the ‘notional’ starting point to be taken for sentence.  She calculated that the appropriate ‘notional’   starting point on the former basis was 11 years’ imprisonment and 9½ years’ imprisonment on the latter basis.  In the result, she adopted a starting point for sentence of 10½ years’ imprisonment.

Discount

5.  For his plea of guilty, the judge afforded the applicant a discount of one third from that stipulated as the starting point.

Sentence

6.  Accordingly, the judge imposed a sentence of 7 years’ imprisonment on the applicant.

Grounds of appeal

7.  The sole ground of appeal advanced by Mr Chau Hing Pang on behalf of the applicant seeks a reduction of his sentence by reason of post-sentencing assistance to the authorities.  There is no dispute that after the applicant had pleaded guilty in the Magistracy and was committed for sentence to the Court of First Instance on 22 September 2012, he reported to the police that Tang Wai-lim, William was involved in trafficking unlawfully in dangerous drugs.  On 21 December 2012, the applicant identified Tang at an identification parade.  Subsequently, Tang was charged and stood trial in the Court of First Instance on a single count of conspiracy to traffic unlawfully in dangerous drugs.[2] The applicant, who was named in the Particulars of Offence as a co-conspirator, testified under immunity for the prosecution.  In the event, on 10 December 2013 Tang was convicted and sentenced to 18 years’ imprisonment.

Application for leave to appeal against sentence out of time

8.  In support of his application for an extension of time for leave to appeal against sentence, the applicant filed an affirmation on 17 April 2014, in which he explained the delay in filing that application.  In January 2014, the applicant was informed by the police for the first time that Tang had been convicted.  On 27 January 2014, he filed his application for leave to appeal against sentence out of time.  On 21 March 2014, he was granted legal aid to assist him in conducting the application.

9.  Of the merits of the applicant’s grounds of appeal against sentence, it was submitted that, having provided information which led to the arrest of Tang and having given evidence at his trial, which led to Tang’s conviction, the applicant was entitled to a further discount in sentence.  It was submitted that the applicant was entitled to the same 55% discount in sentence from that taken as the starting point afforded by this Court to the applicant in HKSAR v W [3]. There, the starting point taken for sentence of 10 years’ imprisonment, for unlawful trafficking in 140 grammes of heroin hydrochloride by importation into Hong Kong from the Mainland was reduced to 4 years and 6 months to reflect the fact that the applicant had not only supplied information to the police, which had led to an arrest, but also that the applicant had given evidence against the arrested person, who had been convicted. 

A CONSIDRATION OF THE SUBMISSIONS

10.  With respect to the judge, she erred in subsuming the enhancement of sentence to reflect the aggravating factors in the commission of the offence, namely importation of the dangerous drugs into Hong Kong and the applicant’s previous criminal record of unlawful trafficking in a dangerous drug, within the ‘notional’ starting point for sentence of 10½ years’ imprisonment.  In consequence, it is not possible to determine by how much the starting point was enhanced to reflect those aggravating factors.  There is a well-established series of steps to be taken in imposing sentence in these circumstances.  First, the starting point is to be identified.  Then, the enhancement of sentence for the aggravating circumstances the commission of the offence is to be stipulated, thereby allowing the resulting total sentence to be identified.  Finally, the appropriate discount of sentences is to be stipulated, so that the resulting sentence may be imposed on the applicant.  However, no issue is taken with the stipulated ‘notional’ starting point for sentence.

11.  Sensibly, in all the circumstances, Ms Fung, for the respondent did not resist the application for leave to appeal out of time.  Acknowledging that the applicant was entitled to a further discount in sentence, she submitted that the appropriate reduction from the starting point taken for sentence to which the applicant was entitled for the assistance that he had rendered the authorities was 50%, inclusive of the discount given for the applicant’s guilty plea.  In support of that submission she drew the court’s attention to the judgment in the Court of Final Appeal of Li CJ, in Z v HKSAR [4].

12.  In Z v HKSAR, Li CJ described the range of reductions of sentence, for co-operation with the authorities, identified by this Court as appropriate to various circumstances:[5]

“ It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at 340. (Compare its earlier decision in HKSAR v Ng Shek-Yu (CACC 178/2000 unreported, 1 March 2001) referring to a discount of between 40% to 45% as usually to appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one third reduction for pleading guilty). HKSAR v Lee Yat-Fan (CACC 414/1999 unreported, 30 May 2001).”

13.  In the judgment of this Court in HKSAR v W, Stock JA, as he was then, described the circumstances in which the Court determined the applicant was entitled to a greater discount than that usually afforded in the “normal case of assistance leading to arrests in giving evidence in a case against a person arrested”.  In that case, the applicant had supplied the authorities with the name of the person who had provided him with the dangerous drugs, which he was importing into Hong Kong when he himself had been arrested.[6]  Stock JA described the conduct of that applicant, which merited an additional discount for sentence, as being the fact that:[7]

“ ..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 the overt pressure deserves some extra credit.” [Italics added.]

14.  In his oral submissions, Mr Chau acknowledged that in the instant case there were no circumstances in consequence of which the applicant was entitled to some extra credit.

15.  Whilst the applicant in this case is entitled to the usual discount of 50% for the assistance that he has rendered the authorities, there is no basis upon which he is entitled to any greater discount.

Conclusion

16.  In all the circumstances, we allow the application for leave to appeal against sentence out of time and, treating the hearing of the application as the hearing of the appeal, we allow the appeal.  We quash the sentence of 7 years’ imprisonment and in its place impose a sentence of 5 years and 3 months’ imprisonment.