HKSAR v. Lee Wai Kwan
Read the full judgment text of CACC 221/2015 on BabelCite. This Court of Appeal judgment was delivered on 24 May 2016.
1. By reason of the applicant’s assistance given to the authorities following her sentence, the applicant seeks leave to appeal against a total sentence of 14 years and 7 months’ imprisonment imposed on her by Deputy High Court Judge Wilson Chan on 27 March 2015, following the confirmation of her earlier guilty pleas on 23 January 2015 in the Eastern Magistracy to the following two offences:
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CACC 221/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 221 OF 2015 (ON APPEAL FROM HCCC NO. 46 OF 2015)
________________________ J U D G M E N T ________________________ Hon Macrae JA (giving the Judgment of the Court): 1.By reason of the applicant’s assistance given to the authorities following her sentence, the applicant seeks leave to appeal against a total sentence of 14 years and 7 months’ imprisonment imposed on her by Deputy High Court Judge Wilson Chan on 27 March 2015, following the confirmation of her earlier guilty pleas on 23 January 2015 in the Eastern Magistracy to the following two offences:
2.The applicant is represented before us today by Ms Olivia Tsang (who also appeared for the applicant at trial), and the respondent by Ms Teresa Kam SPP. Facts of the case 3.The applicant was intercepted at the Customs Arrival Hall of the Lo Wu Control Point at 23:23 hours on 3 August 2014. A search revealed the presence of “Ice”, the subject-matter of Count 1, contained in 3 plastic bags which were taped to her waist and thighs. Upon arrest and caution, she said that she would receive $10,000 for carrying the “Ice” to a person called “Kam Shing”[1], who was the person who had attached the “Ice” to her body and who was to help her remove it in Hong Kong. 4.On the following day (4 August 2014), during a search of the applicant’s home, a plastic bag containing “Ice”, the subject-matter of Count 2, and one inhaling device[2] containing 0.06 gramme of a powder containing methamphetamine were found. The applicant said under caution that the “Ice” was for her own consumption. 5.In a subsequent video-recorded interview, the applicant elaborated on what she had said under caution at the scene.[3] The applicant also accepted that the estimated retail value of the total quantity of the “Ice” (in both Counts 1 and 2) was $620,345.46. Mitigation 6.By way of background information, it was submitted on behalf of the applicant that:
7.Counsel urged the judge to impose concurrent sentences on both counts in accordance with the principle of totality. Reasons for sentence 8.In respect of Count 1, the judge had regard to the guidelines set out in HKSAR vTam Yi Chun[4], which suggested a starting point for sentence of 23 years and 3 months’ imprisonment on an arithmetical basis according to the quantity of narcotic involved. He then enhanced the starting point by 2 years’ imprisonment for the international element involved in bringing more than a kilogramme of “Ice” across the border into Hong Kong. The resulting sentence after trial thus became 25 years and 3 months’ imprisonment. The judge then gave the applicant a 42% discount[5] from the head sentence, which comprised a discount of one-third for her guilty plea, as well as a further reduction to reflect the “special circumstances on the papers which justify a lenient view to be taken of the facts”.[6] Accordingly, the judge passed a sentence of 14 years and 7 months’ imprisonment in respect of Count 1. 9.As for Count 2, the judge stipulated a starting point for sentence of 6 months’ imprisonment. Giving the applicant the same 42% discount from the starting point, he sentenced the applicant to 14 weeks’ imprisonment, which sentence he ordered to run wholly concurrently with the sentence on Count 1. The overall sentence for both counts was, therefore, 14 years and 7 months’ imprisonment. Applicant’s assistance 10.As noted earlier, the applicant alleged that she had been used by “Kam Shing” as a courier to smuggle “Ice” into Hong Kong. The applicant initially participated in a controlled delivery operation; however, “Kam Shing” did not appear. Thereafter, she successfully identified him in a photographic identification, and gave a total of three non-prejudicial statements. As a result of the photographic identification, it transpired that the correct name of “Kam Shing” was Cheung Kim Shing (“Cheung”). This individual had crossed the Lo Wu border into Hong Kong together with the applicant on 3 August 2014. 11.The first non-prejudicial statement was given by the applicant on 30 January 2015 and resulted in the arrest of Cheung on 27 March 2015, at which time he was serving a sentence of imprisonment for an unrelated offence of unlawful possession of a dangerous drug. The second non-prejudicial statement was made on 13 May 2015, which led to Cheung being charged with one count of trafficking in a dangerous drug. A third non-prejudicial statement was given on 16 June 2015. 12.After Cheung had been indicted on one count of trafficking in a dangerous drug in HCCC 343/2015[7], the applicant testified as a prosecution accomplice witness. The respondent accepts that the applicant gave evidence in line with her non-prejudicial statements, as a result of which Cheung was unanimously convicted by a jury and, on 15 December 2015, sentenced to 25 years and 3 months’ imprisonment. 13.The relevant stages of the applicant’s assistance to the authorities, leading to the present application have been helpfully summarised by Ms Kam in the form of a tabulated chronology as follows:
Ground of appeal 14.In her amended Perfected Grounds of Appeal filed on 24 March 2016, Ms Tsang submits that the 42% discount granted by the trial judge reflected the applicant’s assistance up to the time at which he dealt with her, covering her participation in an unsuccessful controlled operation and her provision of information about Cheung, but not her further evidence in court resulting in Cheung’s conviction. Citing Z v HKSAR[8], Ms Tsang submits that the sentence may be said to be manifestly excessive in the light of the applicant’s further assistance, which should merit a discount of 50% from the starting point. Respondent’s submissions 15.Ms Kam, on behalf of the respondent, accepts that the 50% discount sought by the applicant was justified, given the nature and extent of her post-sentence assistance. 16.Ms Kam further summarised in her skeleton submissions the appropriate range of reductions on sentence that should be given to a defendant who has provided assistance to the authorities as follows:
Consideration 17.It is not contended here, nor could it be, that the applicant fell into the “supergrass” category of cooperation. Rightly, Ms Tsang does not suggest that the discount in the circumstances before us should have been greater than 50% from the appropriate sentence after trial. Equally, Ms Kam rightly accepts that, in the light of the applicant’s post-sentence assistance, which has now resulted in the conviction and sentence of an accomplice witness, the starting point should properly be discounted by 50%. We agree. 18.We note that in sentencing Cheung on 15 December 2015, Deputy Judge Campbell-Moffat SC observed that the jury must have found that he had recruited the applicant and that “if it had not been for her assistance, (Cheung) would not have been identified or apprehended”. As for her evidence in court, the judge held that if it had not been for the applicant, Cheung may very well not have been convicted. 19.In the circumstances, a 50% discount of the respective starting points for Counts 1 and 2 would result in sentences of 12 years and 7½ months’ imprisonment and 3 months’ imprisonment respectively, which when made wholly concurrent with each other would result in an overall sentence of 12 years and 7½ months’ imprisonment. We are prepared in the circumstances of the applicant’s fruitful assistance and its extent, as well as her lesser role in the offence than Cheung (as indicated by Deputy Judge Campbell-Moffat SC), to round the sentence down to 12 years and 6 months’ imprisonment. 20.Accordingly, the application for leave to appeal against sentence is allowed and the sentence reduced to the extent indicated.
Ms Teresa Kam SPP, of the Department of Justice, for the Respondent Ms Olivia Tsang, instructed by S H Chan & Co, assigned by Director of Legal Aid, for the Applicant [1] It later became apparent that the correct full name of this person was Cheung Kim Shing (see para 10 infra). [2] The inhaling device consisted of 1 plastic bottle inserted with two plastic straws, one of which was further connected to another plastic straw. [3] The applicant admitted in her video-recorded interview inter alia that (i) on 3 August 2014, she went to Shenzhen with “Kam Shing” who taped the “Ice” to her waist and thighs and asked her to bring it to Hong Kong; (ii) she had not received her reward of $10,000; (iii) “Kam Shing” had changed the location where the “Ice” should have been handed over to him from Nam Cheong Street to her home; (iv) she had remained unemployed for a month; (v) the cash of $8,341 found on her comprised her mahjong winnings and repayments from someone; and (vi) the “Ice”, the subject-matter of Count 2, was for her own consumption. [4][2009] 2 HKLRD 437. [5] To be precise, it was a 42.24% discount. [6] Appeal Bundle, p 9N. [7] The applicant was named as a party to the joint enterprise on the face of the charge sheet. [8] (2007) 10 HKCFAR 183. | |||||||||||||||||||||||||||||||||||||||||||||||||||||
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