R. v. SIU CHUN CHUNG and Another

IN THE COURT OF APPEAL

1995, No.741
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicants pleaded guilty to one count of trafficking. This read that they, on 8th March at Lot 213, Kau Lung Hang Village, Tai Po, unlawfully trafficked in dangerous drugs, namely 28,294.40 grammes of a mixture containing 13,902.70 grammes of heroin hydrochloride.

2. The facts were relatively simple ones. The police were keeping surveillance on the lot and at about 2:45 on 8th March, a vehicle was seen to approach it. The 1st applicant was seen to alight from the vehicle and open the gate and the 2nd applicant drove the vehicle into the compound. The applicants were seen to unload the vehicle and at about 3:45 p.m. the police officers raided the building. They subdued both applicants. Inside a wardrobe which had a concealed compartment they found dangerous drugs among which were, inter alia, 58 blocks of heroin and paraphernalia associated with the packaging of dangerous drugs. Both applicants admitted under caution that the case which they had removed from the boot of the vehicle contained the heroin blocks which were found.

3. Mr. McNamara, who appeared for both applicants below, pointed out in mitigation that the 1st applicant had no previous convictions. He said there was sickness in his family, that he is unemployed, that he suffered financial hardship, that he had a wife and children and that his plea of guilty had been motivated by genuine remorse. He told the judge, correctly, that the applicant had given information leading to the arrest of two persons for importing heroin. He said that these persons were ringleaders, that the amount involved was 133 kilos, and that the applicant had promised to give evidence. That promise had, at that time, not been fulfilled.

4. As to the 2nd applicant he said that he had one minor previous conviction which was not such as would influence the sentence in the present case. He said that he, too, was in financial difficulties because his company had failed and that he, too, had sickness in the family as his mother was in the hospital. Because of his company failure he borrowed money and fell into debt and it was because of this that he committed the present offence. He conceded that the 2nd applicant did not have as much information to give as the 1st applicant but emphasized that he also had pleaded guilty and that he also was genuinely remorseful.

5. The trial judge when sentencing said:

"I have considered very carefully the very able mitigation that has been advanced on behalf of both of you by Mr. McNamara. The sad fact is that trafficking in a dangerous drug is a very serious crime and the courts have said time and again that anyone who is caught will not be treated with mercy. This is so because of the enormous harm that dangerous drug have done to society and to individuals and their families."

The judge went on to say that he took into consideration in the case of the 1st applicant in particular his assistance to the police which had resulted in the arrest of three men who were involved in the conspiracy involving 130 kilos. The judge finally said:

"I also take into account that both of you readily pleaded guilty before the magistrate when you were first charged with the offence brought before the magistrate. It is a reflection of some remorse on your part and it helps to save time and also public expense.

Now, for practical purposes, I treat both of you to have clear records. Having taken all these factors into account, I take a starting point of 28 years. Perhaps it is not the worst case that comes before the court, it is certainly one of the worst cases.

Now, in the case of the 1st accused, he will go to prison for 14 years.

In the case of the 2nd accused, he will go to prison for 18 years."

6. It is accepted that both have now given evidence which resulted in the conviction of two persons who were involved at a high level in a syndicate trafficking in very substantial amounts of dangerous drugs. We have had various reports and letters tendered. I refer to one only of those, a memorandum from the Commissioner of Police to the Attorney-General's Chambers dated 6th January 1997. This states:

"Siu gave evidence for more than one week in the trial. The Crown's case against both defendants rested entirely on Siu's testimony. Prior to the trial Siu gave the Police a full and frank account of his criminal activities, co-operating with them fully to help them prepare for the case. He gave his evidence in a frank and convincing manner, leading to the conviction of Poon Lai-lin on four counts of trafficking in a total of 106 Kg of No.4 heroin, and of Leung Wai-yat for trafficking in approximately 28 Kg of No.4 heroin. Poon was sentenced to 30 years for each count, and Leung was sentenced to 25 years."

The memorandum went on:

"Tan Fu-jung also gave full co-operation to the Police during the enquiry. Because he played a more limited role in Siu's syndicate, he was able to provide less information, but nonetheless provided everything he knew. In his evidence Siu claimed that Tan was instrumental in persuading him to become an accomplice witness. The nature of Tan's evidence was that it provided corroboration to that given by Siu.

The evidence given by Siu and Tan resulted in two persons being convicted of importing heroin into Hong Kong on a vast scale. Siu is currently serving a 14 year term of imprisonment and Tan 18 years. A reduction in their sentences is supported by the Police."

7. Today the 1st applicant, who is represented by Mr. Macrae, has submitted that he is a supergrass and that as such he is entitled to a discount of two-thirds. A supergrass is defined in The Queen v. Chan Fu-kui [1986] H.K.L.R. 967 as a person who has "expressed his willingness to assist the police at considerable personal risk in a number of cases". We appreciate fully the extent of co-operation given by the 1st applicant and the importance of the evidence which he gave at trial. If it can be said that he falls within the category of supergrass he must be placed at the bottom rather than the top of that category. There is no concrete indication of considerable personal risk nor has he given evidence in a number of cases. However he be categorized the fact of the matter is that he gave vital evidence in an important drug prosecution which resulted in the conviction of two offenders and there is real possibility that at some time in the future they might try to punish him.

8. As to the 2nd applicant, there is no doubt that he played an important part in the trial giving corroborative evidence but, because he was not so deeply involved as the 1st applicant, was not able to give the evidence and assistance that was given by that applicant. We have been troubled by one aspect of the matter. The starting point for the sentence of each applicant was 28 years. We cannot help but feel that had the judge been in possession of the facts as we now have them, he must have differentiated between the two applicants. The 2nd applicant clearly was not as deeply involved as was the 1st applicant. We think that the starting point for sentence of the 2nd applicant should have been 25 years. It is true that the 1st applicant gave more assistance to the police and gave more telling evidence than did the 2nd applicant but we have to bear in mind that the 2nd applicant encouraged him so to do. We think the 1st applicant is entitled, we being in possession of all of the facts, to a discount of 60%. On a strictly mathematical basis that would bring his sentence from 28 years to 11.2 years but we think it proper to reduce it to 11 years. The 2nd applicant for his co-operation is entitled, we consider, to a discount of 55%. That would mean that his sentence is reduced from 28 years to 11.25 years but again we consider that we can properly reduce it to 11 years. In the outcome each of the applicants will receive a sentence of 11 years.

9. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentences are varied as we have indicated.