THE QUEEN v. HO HANG KWONG

Headnote

Application for leave to appeal out of time - allegation by applicant that he had  provided police with material information which enabled them to bring the charge against him and his co-defendants - denial by Crown that any such information had been furnished - conflicting affidavits having been filed - Court ordered that the matter be resolved by hearing evidence - the deponents were called and cross-examined and the issues of fact resolved.

-----------------

JUDGMENT

-----------------

Power, J.A.:

1. The applicant who was jointly charged with two others pleaded guilty to two charges of possession of dangerous drugs for the purpose of unlawful trafficking before Bewley J. He was sentenced to imprisonment for seven years on each charge, the sentences to be served concurrently. A discount of one year was given for the plea. The applicant admitted having 573.70 grammes of a mixture containing 39.11 grammes of salts of esters of morphine on his person on the 5th of November 1988 and 516 grammes of a mixture containing 35 grammes of salts of esters of morphine in his charge in the premises at Room 212B, Block 2, Chai Wan Estate on the 6th of November 1988. He now seeks leave to appeal against those sentences.

2. The matter first came before this court on the 29th of December 1989, the application for leave which is dated the 6th of October 1989 states that the applicant had failed to inform the sentencing judge and his counsel that he had given relevant information to the prosecution and to the police which had materially assisted the police in their arrest of another person, HUI King-kwok, charged in connection with this case and that this information, if revealed, would have merited a discount. Leave was sought to introduce additional evidence contained in an affidavit dated the 31st of October 1989. In this affidavit, the applicant stated that on the 4th of November 1988 the day before the 1st charge, P.C. 1600 who had previously arrested him in November 1986 accused him of working for Ah Hui and that he then revealed that Ah Hui purchased drugs in lots of 1 or 2 lbs. He said he revealed the method of delivery used by Ah Hui and also the situation of the place where the drugs were stored. He said that P.C. 1600 told him to inform the police when a purchase was next made and that he would, in turn, be informed when the police intended to act so that he could keep out of the way. He said in the affidavit that on the 5th, he was unable to reply to a pager message which he received and that later on that day he was arrested with Ah Hui and others at the premises. He said that he had not earlier revealed these matters because he was afraid of Ah Hui.

3. The matter was adjourned on that day to allow the Crown to take instructions upon these allegations. In an affidavit made on the 17th of January 1990, PC1600, now a sergeant, said:

"According to my memory, though I really had contacted with HO Hang-kwong for a few minutes in chitchat style on some day in November, 1988 in Shaukeiwan area and at that time I wanted to tactfully sound him about the information of dangerous drugs trafficking by a male HUI King-kwok in Chai Wan area through the aforesaid style, he only claimed that this man was connected with dangerous drugs and had not revealed any information concerned sufficient for the police to arrest this man."

On the 18th of February 1990, the sergeant made a further affirmation specifically denying that the applicant had furnished any information as to the specific activities of Ah Hui. On the 12th of March 1990, the applicant made a further affirmation in which he said that Ah Hui had told him not to reveal information on the day of arrest and that Ah Hui had, on suspecting that he was cooperating with the police, threatened him and his family in November 1989 and had, after the adjournment on the 29th of December 1989, told him to abandon his appeal and said that if anything harmful happened to him the applicant would be sorry for the rest of his life. He said that because of this, on the 4th of January 1990 he signed a form saying that he would withdraw legal aid. He said he did so not because he was intending to abandon his appeal but because he believed that it would result in his transfer to another prison where he would have no further contact with Ah Hui. He said that on the 14th of January 1990, Ah Hui, in the belief that the applicant intended to implicate him, made further threats against him and his family and that he believed these threats and that he and his family were, therefore, at risk.

4. We were satisfied, the versions of Sergeant Ng and the applicant being so diametrically in conflict, that the matter could only be resolved by hearing evidence. We, therefore, gave leave for the applicant and the Crown to call the two affirmants. Suffice to say that we are quite satisfied, having heard the witnesses, that the evidence of the applicant both oral and in his affidavits is in all material respects wholly without credit. We reject his suggestion that he provided Sergeant Ng with detailed information concerning the activities of Ah Hui, thus placing himself and his family at risk. Nothing has been put before this court which would warrant the granting of any additional discount and the application for leave is therefore dismissed.