HKSAR v. PUN CHING TO AND ANOTHER

CACC 52/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 52 OF 2001

(ON APPEAL FROM HCCC 192/2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 22 November 2000, the Applicants (D1 and D2) pleaded guilty in the Court of First Instance before Deputy Judge Barnes to trafficking in a mixture containing over 45.7 kgs of heroin hydrochloride valued at just over HK$47 million. Having adopted for each Applicant a starting point of 32 years, the judge imposed sentences of 17 years and 161/2 years' imprisonment respectively against which leave to appeal out of time is now sought.

2. 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.

The facts

3. Turning briefly to the facts of the case, the Applicants were arrested following a police surveillance operation on 2 March 2000. They were both seen in a car which arrived at a car park in Sheung Shui. They parked and went over to the boot of a second vehicle. They took out a travel bag and loaded it into the boot of the car in which they had travelled to the car park. As they were about to leave, they were intercepted. Inside the bag, police found 20 blocks of heroin. Both Applicants confessed that they were going to be rewarded for their activities in connection with these drugs.

Grounds of appeal

4. Against this background, the Applicants have effectively maintained three grounds of appeal which are common to both of them. In correspondence, they have complained that the thirty-two-year starting point was too high, that they should now be given a further reduction of sentence arising from the comparatively recent assistance to the authorities which they have provided in two cases and that their respective family backgrounds were given insufficient weight in determining the length of their sentences.

The application

5. In court today, Mr Stanley Chan has indicated on the Respondent's behalf that the Applicants did provide statements to the police in respect of the two specific cases to which the Applicants in their written submissions have made reference.

6. The first of these cases related to two charges of conspiracy to traffic in dangerous drugs against Lui Siu Ching ("Lui"). The first conspiracy charge covered the period between 1 July to 26 November 1999 and the second related to a period after that in November 1999 until March 2000. It was alleged that Lui was the Applicants' former boss. The only evidence against Lui was contained in the statements taken from D1 and D2 and one other. Lui was due to be tried on 31 July 2000. However the case against him was dropped on 1 August 2002 when prosecuting counsel on fiat decided, rightly or wrongly, that the Applicants were not sufficiently reliable to be put forward as witnesses of truth. This assessment arose from the mitigation which had been advanced by defence counsel on behalf of the Applicants prior to sentence being imposed on them. The transcript of the plea and mitigation shows that defence counsel had made submissions which were directly counter to the information contained in the statements which D1 and D2 subsequently provided to the police against Lui. As a result, therefore, no evidence was offered against Lui and he was acquitted.

7. The second case in which the Applicants gave information related to two charges of 'soliciting to murder' which were preferred against Messrs Lau Kwok-hung and Mak Kam-chuen. The dates alleged in the particulars of these offences related to March 1999 and September 1999 respectively. D1 and D2 each gave statements in regard to these allegations on 11 January 2002. They stated that they began to serve their sentences at Stanley Prison in November 2000. Their assistance was directed at an issue in the trial which was concerned with the movement of prisoners from one workshop to another. As D1 has pointed out today, the particular significance of the material they provided may well have been that the defendants on the soliciting to murder charges would have had the means of communicating between each other when working in the workshop. In any event, the statements which D1 and D2 had provided were then served on the defence as additional evidence. The two defendants in that trial, however, were in due course acquitted following successful submissions of no case to answer. In the event, these Applicants were not called upon to testify which, it seems, may have been because their period of incarceration at Stanley Prison only began after the dates particularized in the allegations of soliciting to murder. We shall return to this aspect in a moment, after dealing with the first and third grounds of appeal.

8. The sentencing guidelines for trafficking in heroin in R v Lau Tak Ming [1990] 2 HKLR 370 set a twenty-year starting point for "very large quantities" beginning at about 600 gms. Above that amount a sentencing judge must decide what is an appropriate penalty remembering that the maximum under the legislation is life imprisonment.

9. Whilst a thirty-two-year starting point might well be considered to have been at the high end of the range for this offence, we do not consider that it was manifestly excessive. We also take the view that the Applicants' family circumstances carried little weight in a matter of this gravity.

10. However, the Applicants were given extremely generous discounts on the sentences they each received. D1's sentence was discounted by almost 48% and D2's sentence was reduced by nearly 50% largely on the basis, apparently, of a promise to testify against the others involved in the trafficking offence to which they had pleaded guilty. Mr Chan has informed us that this was prior to the time when the Applicants made their statements to the police. The scale of these discounts was accordingly contrary to current sentencing practice which seeks to ensure that reductions in sentence are only given if and when a defendant has carried out his intention to cooperate with the authorities. To discount sentence to any extent at all on a promise alone may not only lead to a defendant changing his mind about providing assistance once he has gained such an advantage, but it also leaves this court with very little leeway to increase the defendant's discount on his plea of guilty once he has accomplished what he has promised to do.

11. We are satisfied that in the circumstances which prevailed here, the Applicants plainly intended to assist the authorities and have done what they could to do so. In the event, through no fault of their own, their assistance in two cases came to nothing.

12. Despite the very large discounts which were given to the Applicants, therefore, we are now left having to recognize the assistance to the authorities which was given by the Applicants after they had been sentenced. It is particularly significant that the information they supplied came to be known to those against whom they were prepared to testify. As a matter of principle, therefore, we consider that some further discount should be given to the Applicants despite the eventual failure of their assistance to have benefited the prosecution in either of the cases in which they were listed as witnesses.

13. It is in these unusual circumstances that we propose to increase the discounts in each case to 50% although neither of the Applicants had to give evidence. This is in no sense to be taken as providing any sort of precedent for the future. A reduction on this scale is usually only given to those who have actually testified against those about whom they have provided information.

14. We do not propose to differentiate between the two Applicants, as the judge did, on the grounds of their records. D1's previous criminal record, which consisted of three comparatively minor offences, was of very little significance, and in a case of this gravity we consider that both Applicants should have been dealt with equally.

15. Finally, we were shown in the course of these proceedings a document dated 18 January 2003. It is not yet known whether this will provide any positive assistance to the authorities. If it does so, this may be a matter for the Executive to consider in the future. We need only say that we have not taken its contents into account when reaching our conclusions.

Conclusion

16. Accordingly, for the reasons we have given, we shall grant leave out of time and treating the hearing as the appeal, we reduce the sentences of both Applicants to 16 years' imprisonment.