R v. CHUN YEUNG

IN THE COURT OF APPEAL

1995, No. 89
(Criminal)

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R U L I N G

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Litton, V.-P. (giving the ruling of the Court):

1. We have before us an application by Mr Mullick for the applicant to adjourn the hearing of this matter.

2. The hearing was first set down for 19 June 1996 when it was adjourned because the papers were not in order; another reason being that counsel had only been briefed the day before and there were no perfected grounds of appeal.

3. Eventually the perfected grounds of appeal (called "amended grounds of appeal") were lodged on 9 October 1996 and an appeal bundle prepared as directed by the court was lodged on 11 October 1996.

4. The matter was accordingly set down for hearing before us today.

5. To understand the nature of this application to adjourn, it is necessary to mention the history of these proceedings. The applicant was sentenced on 17 January 1995 to 25 years' imprisonment and on 3 February 1995 he made his application for leave to appeal against both conviction and sentence. The matter as regards sentence did not then proceed because the Crown applied for a confiscation order under the provisions of the Drug Trafficking (Recovery of Proceeds) Ordinance Cap 405 and by virtue of s3(11) any confiscation order made "shall be deemed" to be a sentence passed on the applicant in respect of the offences concerned in the original prosecution.

6. A confiscation order was made on 27 November 1995 by Mr Justice P Chan which then by the operation of s3(11) became part of the original sentence passed on 17 January 1995.

7. On 17 April 1996 the applicant's appeal against conviction was dismissed and at that time the appeal against sentence was adjourned. As can be seen, although the applicant was arrested back in January 1994, the process of appeal itself cannot be said to have been greatly delayed.

8. The reason for this application now before us is to some extent set out in a letter which Mr Mullick handed up this morning. It is from the Superintendent of Police attached to the Narcotics Bureau dated 29 October 1996. It appears from that letter that in May this year, the month after the applicant's appeal against conviction was dismissed, he provided to the Narcotics Bureau two written statements in relation to the drug trafficking activities of another person. He indicated at that time a willingness to testify against that person should that person be charged.

9. Mr Blanchflower, counsel for the Crown, quite rightly cautioned us against accepting these expressions of co-operation too readily, reminding us as he did that this applicant has been in custody since January 1994 and he has had ample opportunities to cooperate. But, be that as it may, the position as it stands today is that there will be another interview this coming Friday and through counsel this applicant has indicated a willingness to cooperate with the Police.

10. In the letter of 29 October 1996 the Superintendent of Police stated that in respect of information which might be provided by the applicant the Narcotics Bureau might be prepared to provide an affidavit indicating the extent of his co-operation if charges were brought and the suspect arrested, and if the applicant should give evidence in the subsequent criminal proceedings.

11. The matter before us is not easy to decide. There is a considerable public interest in the due despatch of the court's business. On the other hand the sentencing process in the courts should as far as possible be complete and, obviously, this court should be provided with the best available information in the discharge of our appellate function.

12. In our view it is not in the public interest that this matter should be adjourned for a very long time. It would therefore seem impracticable to have this matter adjourned pending the completion of criminal proceedings - proceedings which, at best at the moment, are only prospective. No one has yet been arrested on any information provided by the applicant. On the other hand if the matter were to be adjourned for, say, four months that would enable the Narcotics Bureau to discover if, in truth, and somewhat belatedly, this applicant has had a real change of heart and is now prepared to cooperate to the fullest extent by the provision of information and assistance.

13. Obviously if the applicant were to make true disclosures relevant to the matters which this court will ultimately have to consider, with regard to both the sentence of 25 years' imprisonment and the confiscation order (which carries with it the possibility of a further seven years in prison in default) that would be relevant to what we have to decide.

14. The view we have therefore come to is that we should accede to the application, not to the full extent of enabling criminal proceedings to be brought and concluded, but to enable the police to explore the matters as indicated.

15. The hearing will therefore be adjourned, marked not part-heard, to be listed for hearing as soon as convenient after 1 March 1997.