HKSAR v. LEE HIN LONG OWEN

CACC 251/2018

[2019] HKCA 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 251 OF 2018

(ON APPEAL FROM HCCC NO 27 OF 2015)

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REASONS FOR JUDGMENT

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Hon M Poon J (giving the reasons for judgment of the court):

1.  The applicant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 14 years’ imprisonment by Deputy High Court Judge Wilson Chan (as he then was) (“the judge”) on 15 September 2015. At the hearing of the appeal, we granted leave for the applicant to appeal against his sentence out of time, treating the leave application as the hearing of the appeal, allowed the appeal, set aside the sentence of 14 years’ imprisonment and replaced it by a sentence of 10 years and 6 months’ imprisonment. We indicated that we would hand down our reasons in due course. That we do now.

Facts

2.  The summary of facts^[1] to which the applicant admitted was in gist as follows.

3.  The applicant and a female were intercepted by the police when they alighted from a taxi outside Chelsea Court in Tsuen Wan on 13 August 2014.  Twenty packets of drugs were found inside the plastic bag carried by the applicant.  The drugs were subsequently confirmed to be 4,939 grammes of a powder containing 4,203 grammes of ketamine with an estimated retail value of HK$587,741.00.

4.  The applicant admitted under caution that he was about to deliver the ketamine to someone for a reward of HK$2,000.00.

Reasons for sentence

5.  The judge, whilst accepting that this was a most tragic case for a young man as the applicant to have come from a good family background to have committed an offence of such gravity, stated that he must not lose sight of the fact that drug trafficking offences call for severe deterrent sentences.  He referred to the cases of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 and adopted a starting point of 21 years.  He gave the applicant one‑third discount for his timely guilty plea and sentenced him to 14 years’ imprisonment.

Application for leave to appeal out of time and the grounds of appeal against sentence

6.  The applicant filed a notice of appeal against sentence out of time on 28 August 2018.  In his affirmation, he explained that it was only after he was sentenced that the mastermind of his drug trafficking offence was arrested and sentenced pursuant to the information he gave to the police and his testimony in court.

Grounds of appeal against sentence

7.   The sole basis of the appeal against sentence was that the applicant had given assistance to the authorities by providing information leading to the arrest of the mastermind of this case, Ma Shing Him (“Ma”) and testifying for the prosecution in the trial against Ma.  Mr Paul Leung, counsel for the applicant, urged that the applicant be given 50% discount in recognition of his assistance.  Ms Lilly Wong, for the respondent, did not oppose the application for extension of time and conceded that a 50% discount would be appropriate.

Discussion and conclusion

8.  After the applicant was arrested, he provided a total of four non‑prejudicial statements to the police identifying Ma as the mastermind of the drug trafficking offence.  He participated in an identification parade where he positively identified Ma.  Ma was arrested after the applicant was sentenced.  Ma was subsequently charged with 6 counts of conspiracy to traffic in a dangerous drug.  Ma pleaded not guilty to the courts and a trial took place before Deputy High Court Judge S T Poon (as he then was) between 28 May and 6 June 2018.  The applicant was a key witness and he gave evidence consistent with his non‑prejudicial statements in testifying against Ma.  As a result, Ma was found guilty of 4 out of the 6 counts and sentenced to 24 years’ imprisonment.

9.  In Z v HKSAR (2007) 10 HKCFAR 183, Li CJ referred to the discount approved by the Court of Appeal in respect of those who gave assistance to the authorities.  A full 50% discount is justified where a defendant has provided assistance to the authorities, testified for the prosecution and has given truthful and material evidence:

“23. The Court of Appeal is well placed to consider the range of reductions of sentence for co‑operation with the authorities. 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 p.340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually 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 (Unrep., CACC No 414 of 1999, [2001] HKEC 662). Where the level of co‑operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two‑thirds has been used, R v Chan Fu Kui [1985] HKLR 967 at p.968, HKSAR v Ng Shek Yu (at p.3).”

10.  The case of Z has since been applied in a number of authorities: see HKSAR v Choi Wing Kuen, CACC 41/2006; and HKSAR v Cheung Chi Yuen, CACC 288/2015.

11.  We are of the view that a discount of 50 % is appropriate in the circumstances of the present case taking into account the totality of his assistance.  We therefore granted the application for extension of time, treating the leave application as the hearing of the appeal we allowed the appeal against sentence, set aside the sentence of 14 years’ imprisonment and replaced it by a sentence of 10 years and 6 months’ imprisonment.