R. v. YIM CHUN PONG

IN THE COURT OF APPEAL

1995, No. 306
(Criminal)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court) :

1. The applicant was convicted of one charge of trafficking in dangerous drugs. The offence occurred as long ago as 6th July, 1992. He pleaded guilty to the charge on 26th May, 1993, but he was not convicted until 20th April, 1994. He was sentenced on 21st April, 1995. He made an application for leave to appeal against conviction on 25th April, 1995, but this was abandoned on 20th June, 1995. On 20th November, 1995, he made a further application to appeal against his conviction out of time. That is the application now before us.

2. The applicant was arrested at Kai Tak Airport on 6th July, 1992, when he arrived from Thailand en route to Taipei. He was carrying a bag in which the drugs were found, being 6,959.55 grammes of a mixture containing 6,249.62 grammes of salts of ester of morphine. He immediately admitted they were dangerous drugs and said they belonged to him. Subsequently, in a cautioned statement he said that a friend to whom he had been introduced in Thailand had asked him to carry the bag to Taiwan. He was willing to plead guilty to the charge but his original counsel thought that there might be a defence based upon duress. Another opinion was taken from counsel who eventually appeared for him and whose view it was that there was no defence. He then pleaded guilty. It is apparent that at all relevant times he was willing to admit his guilt and indeed in the application before us he proceeds on the basis that he in fact committed the offence.

3. The point that he raises is that he was given an immunity from prosecution which he argues covers the present offence. The document is dated 30th December, 1994. It gave him immunity from prosecution on condition that he gave full and true evidence against two other men, Wong Ka-shun and Wong Kun-wai, in connection with alleged offences of conspiracy to traffic in dangerous drugs in a number of periods, including the period between 28th June, 1992, and 6th July, 1992. The extent of the immunity granted was

"..... in respect of the said offences or any other offence which may be connected with the said offences which have been or may be disclosed by you to officers of the Royal Hong Kong Police Force or will be disclosed by you in the course of your testimony during the said trials."

In due course the applicant gave evidence against the two men. One was acquitted and the other was convicted.

4. Apart from being out of time the applicant faces two difficulties. The first is that he pleaded guilty and maintained that plea at a time when he was being advised by counsel. The plea was entered before the immunity was given although the conviction only took place thereafter. It is unnecessary to deal with this point since the second difficulty is fatal to the application. That difficulty is two-fold. First, at the time when he was charged and at the time when he entered his plea there was no immunity. Secondly, and more importantly, the wording of the immunity does not cover the offence in question. The immunity covers only the applicant's involvement with the conspiracies with which the other two men were charged or other offences connected therewith and then only insofar as that involvement was disclosed to the police or to the Court in the course of his evidence in the other trials. There is nothing before us to indicate that the offence of which the applicant was convicted fell within those terms.

5. While it is important that informers should be encouraged by way of a proper immunity to give evidence against other persons involved in the same crime it is also important that the immunity should not be extended to the commission of other unrelated offences except so far as absolutely necessary. No less important is the fact that those who cooperate with the authorities and give evidence against others should be protected. The applicant has told us that he was promised that he would be kept at Siu Lam but that in fact he was put into Stanley Prison where he was attacked. Subsequently, he was put into Shek Pik. He asks for an order that he should be kept at Siu Lam under the witness protection programme. Clearly, in the circumstances this man should be given protection and we express the hope that this will be seen to as soon as possible.

6. In the circumstances this application is dismissed.