HKSAR v. Yeung See Man

CACC 292/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 2015

(ON APPEAL FROM HCCC NO. 351 OF 2014)

____________

____________

________________________

REASONS FOR JUDGMENT

________________________

Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The applicant, the 2^nd defendant at trial, seeks leave to appeal against the sentences imposed on her, to a total of 14 years’ imprisonment, on 16 June 2015, following her conviction by Deputy High Court Judge Stuart‑Moore on her pleas of guilty to a count, jointly with the 1^st defendant at trial, of unlawfully trafficking on 20 March 2014 at premises in Wai Yi Street, Tai Po, New Territories in a dangerous drug, namely 550.66 grammes of methamphetamine hydrochloride (Ice) (Count 1), and a count of unlawfully trafficking by herself on the same date at those premises in 554.55 grammes of Ice (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The judge sentenced the applicant to 12 years’ imprisonment on each of the counts, ordering that two years of the sentence of imprisonment imposed in respect of Count 2 be served consecutively to the term of imprisonment imposed in respect of Count 1.

The facts

3.At 23:23 hours on 20 March 2014, police officers intercepted the applicant as she left premises at Flat A, 5/F, Kam Tong Building, 22‑24 Wai Yi Street, Tai Po, accompanied by Sze Hoi Yan, the 2^nd defendant at trial.  A search of a white plastic bag carried by the 2^nd defendant revealed the presence of:

(a)   a brown coloured doll’s head containing four re‑sealable plastic bags, which, were found to contain 80.26 grammes of Ice; and

(b)   a bag labeled ‘Tea’ containing 21 re‑sealable plastic bags, which were found to contain 470.40 grammes of Ice.

Those dangerous drugs were the subject of Count 1.   

4.Having been taken back into the premises, a search of the applicant’s person revealed the presence in her underpants of five re‑sealable plastic bags which were found to contain in total 54.10 grammes of Ice.  Having been arrested and cautioned, the applicant said “Ah Sir, the Ice that you found of (in?) my underwear is going to be sold by me”.

5.A search of the premises revealed a plastic box in the kitchen cabinet containing 22 plastic bags, which were found to contain 500.45 grammes of Ice.  Upon further caution, the applicant said “Ah Sir, the Ice you found in the cabinet is mine too.”  The dangerous drugs, which were found in the applicant’s underpants and in the cabinet in the kitchen, were the subject of Count 2.

6.The estimated market retail value of the dangerous drugs was $301,331 (Count 1) and $301,955 (Count 2).

7.In addition, a number of plastic bags, two sets of scales and three sets of individual latex finger sleeves were found in the premises.  Later, five keys, including the keys to the premises, were seized from the applicant.  The applicant was the tenant of the premises and had paid the rent.

8.On 21 March 2014, in a video recorded interview, the applicant confirmed her earlier admissions, claiming that she had purchased the dangerous drugs on credit from a man she called ‘Ah Lo’.  Also, she asserted (at Counter 333):[1]

“ Actually, Ah Sir, it has nothing to do with [D1], because I have known this girlfriend for only one to two months....

Well, and then she saw me walking out of the doorway intending to leave.  I was locking the door.  She just helped me to hold it in her hand.  In fact, she had completely no idea that there were dangerous drugs inside.  I want to make a clarification, right, she has completely no idea that I trafficked in drugs.”

9.At the sentencing hearing on 31 August 2015, the judge reminded counsel that he had been the judge at the trial of the co‑accused, at which the applicant was a witness for the prosecution.  In face of the suggestion by Mr McGowan that the applicant had ‘come up proof ’ in her evidence the judge retorted that her non‑prejudicial statement was “...a lie from start to finish”.[2]

Reasons for sentence

10.In sentencing the applicant, having acknowledged that the applicant had pleaded guilty, the judge noted that the combined narcotic content in which the applicant had trafficked unlawfully was over 1,105 grammes of Ice.

11.Of the applicant’s criminal record, the judge said:[3]

“ Your record confirms that amongst your six previous drug‑related convictions, trafficking in dangerous drugs has become a way of life for you. You have got two previous convictions for this. The most recent of those was on 18 November 2009 when you received a sentence of 6 years 8 months’ imprisonment. You had only, about three months before the commission of these offences, been released from prison.”

12.Having said that it was to the credit of the applicant that she had pleaded guilty, the judge went on to say:[4]

“ What is most certainly not to your credit is the fact that you chose to blame your co-defendant for having been involved in trafficking with you. The evidence that you chose to give against her was in total contradiction of everything you had told the police following your arrest. Your story, or should I say change of story, in the witness-box was utterly unconvincing and it was no surprise to find that you told many palpable lies which were exposed for what they were in cross-examination.

Even small points in your evidence were untrue. These were designed to condemn your co-defendant in the eyes of the jury, such as the lie you told about how you had both been smoking ‘Ice’ before leaving the flat immediately before your arrest. You described in detail the glass bottle that you said you had been using for smoking and then, when you realised that no such item was ever found at your flat, you changed your story completely to say that you had been using a drinks carton. You said that you had disposed of that outside the flat but there were no less than nine police officers on surveillance that evening and some of them were very close to the front door. You would have been seen if you did what you said you did.

Your whole non-prejudicial statement which you made in order to provide a case against your co-defendant was littered with lies. Some of them were very obvious and others emerged in the course of your evidence as you tried to paint a picture of yourself as the junior partner in trafficking.

Just to take one example of this, you said in your statement, at paragraph 5, that your co-defendant, at around 11 pm on 20 March 2014, had taken a kilo of ‘Ice’ to your flat which you both then split up. You added that the drugs were obtained from your co-defendant’s friend called Lo Shu and that you had gone out and come back in a taxi for that purpose. As you later had to admit, the taxi story was a complete invention and one reason we know that is that the police had seen you arrive back with your co-defendant in your newly purchased Mercedes.

As for Lo Shu, you gave a detailed description of that person, including his tattoo, in your interview with the police.  What you told the jury in your evidence was entirely made up by you because you said you had never met Lo Shu.”

13.Then, the judge went on to confirm his exchange with Mr McGowan in mitigation “the law does not permit me to increase your sentence further on account of all the lies you told against your co‑defendant.”  Nevertheless, the judge went on to say “I’m very surprised that the police who took your statement were unable to see that it was a tissue of lies.”

14.Of the result of her co-accused’s trial, the judge said:[5]

“ In due course, the co-defendant was, overwhelmingly, I suspect, acquitted. By the end of the evidence, there was very little doubt that she could not possibly be convicted on the evidence that you provided. So it is a case where I can say with complete confidence that you deserve no credit whatsoever for the evidence you gave against your co-defendant.”

15.Of the issue of other assistance rendered to the authorities by the applicant, the judge said:

“ At the end of the trial, it was suggested on your behalf that you might have information to give to the police. I have no doubt you do have information but you certainly did not give it to the police. You are utterly manipulative and your credit is worthless.”

Starting point and enhancement

16.Having said that, in determining the appropriate starting point to be taken for sentence, he had regard to the guidelines issued by this Court in its judgment in the Attorney General v Ching Kwok Hung [6], the judge said:[7]

“ I consider that a starting point after trial of 20 years’ imprisonment is certainly merited, but in view of your record for trafficking, I propose to increase the starting point by a year. It is plain that you have learned nothing from your past sentences and the public deserves a rest from your activities.”

17.In the result, in giving effect to that determination, the judge said that he took a starting point for each count of 17½ years’ imprisonment, which he enhanced by six months’ imprisonment “in view of your previous record for trafficking.”

Discount

18.To reflect the applicant’s pleas of guilty, the judge discounted those sentences to 12 years’ imprisonment.  Then, he ordered that two years of the sentence of imprisonment imposed in respect to Count 2 be served consecutively to the sentence of imprisonment imposed in respect of Count 1.

Grounds of appeal against sentence

19.In his Amended Perfected Grounds of Appeal, Mr Y C Yeung, advanced three grounds of appeal against sentence.  First, he submitted that the applicant’s counsel at trial acted incompetently and contrary to instructions when he informed the court that he did not seek an extra discount in sentence to reflect the fact that she had given evidence for the prosecution in the trial of her co‑accused.  Secondly, he contended that the judge erred in failing to afford the applicant an extra discount in sentence, having regard to the ‘risk’ that she faced to her safety whilst she was in prison, given that she had given evidence against her co‑accused. Thirdly, he contended that in all the circumstances the sentences were manifestly excessive.

20.In support of his grounds of appeal against sentence, the Court received two affirmations from the applicant in which, in essence, she emphasised her repeated assertions that she required that it be submitted to the judge that she be afforded a discount from the starting point taken for sentence to reflect the fact that she had given evidence for the prosecution.  At the direction of the Court, Mr McGowan and his instructing solicitor, Mr Henson Lam filed affirmations addressing the issues raised by the applicant.

The respondent’s submissions

21.For the respondent, Mr Franco Kuan submitted that, having given untruthful evidence which was disbelieved by the jury, the applicant was not entitled to any discount.  The applicant was entitled to a discount only if she had given “truthful and material” evidence for the prosecution.[8]  Having conducted the trial of the co‑accused and having heard the evidence of the applicant the judge was well‑placed to form an assessment of the truthfulness of the applicant’s evidence.  He submitted that the fact that the applicant had given false evidence against her co‑accused, in respect of the very issues that were the subject of the counts to which she had pleaded guilty, undermined the element of remorse in her own pleas of guilty and put in jeopardy the one‑third discount that she had been afforded by the judge.  Finally, he submitted that the allegations against Mr McGowan were wholly unfounded.

A consideration of the submissions

22.On 16 June 2015, the applicant and her co-accused both pleaded not guilty to the counts on the indictment.  However, in the afternoon of that day the applicant was re‑arraigned and pleaded guilty to both Counts 1 and 2.  The judge was informed that a non‑prejudicial statement would be taken from the applicant by the police.  On 17 June 2015, Mr Parry informed the judge that the applicant had provided a non‑prejudicial statement.  On 19 June 2015, Mr Parry informed the judge that the applicant would be called as a witness for the prosecution at the trial of her co‑accused on an indictment, which the prosecution sought to amend, alleging that the co‑accused was a party to both acts of unlawfully trafficking in dangerous drugs averred by Counts 1 and 2.  The co‑accused pleaded not guilty when she was re‑arraigned on the amended indictment and her trial was adjourned until 22 June 2015.  The applicant gave evidence for the prosecution in that trial on 23 June 2015.  On 25 June 2015, by the unanimous verdicts of the jury the co‑accused was acquitted of both counts.

23.On6July2015,thecourtreconvenedtodealwith sentencing of the applicant.  Mr McGowan was present in court.  However, Mr Parry informed the judge that the applicant had provided the police with further information orally on a non‑prejudicial basis which necessitated an adjournment, if it was to be investigated.  Of course, by that stage the judge had completed the conduct of the trial of the co‑accused at which the applicant had given evidence.  In response, the judge said:[9]

“ COURT: Well, I’m very concerned that a team that thought that she was a worthwhile witness in the trial itself should now be regarding her as a possibly worthwhile informant and innocent people can get involved this way.

...

COURT: It’s the same police who thought she was a good witness.

....

COURT:  On the face of it was a complete lie from start to finish.  It was the very opposite of everything she told them before.”

24.Then, the following interchange ensued with Mr McGowan:[10]

“ COURT: ... But I do assure you that the evidence given by your client was a disaster and there’s no way a jury was ever going to convict on that.

MR MCGOWAN: Well, my Lord that - that may be the case. Or -- I - I accept what you say about that. Some honest people are very bad witnesses and complete frauds are very good witnesses. I think...

COURT: Well, I’m actually indicating to you that she’s not getting any discount so far.

MR MCGOWAN:  Right.  Well, in that case, my Lord, I believe it’s my duty to try and ensure that if she has something worthy of discount, she should get it.”  [Italics added.]

25.Then, at Mr McGowan’s request, the judge adjourned the sentencing hearing to 31 August 2015, so that the police could investigate whether or not the information provided by the applicant in the non‑prejudicial statements was of use to the authorities.

26.At the resumed hearing on 31 August 2015, Mr Parry, counsel for the prosecution informed the judge “nothing of any use has transpired” from the information provided by the applicant.[11] Then, the following interchange ensued between the judge and Mr McGowan:[12]

“ COURT: I have the evidence given by the defendant on the last occasion during the trial of the co-defendant.

MR McGOWAN: Yes.

COURT: And so I think I have all the knowledge that I need on background.

MR McGOWAN: Right. Well, my Lord, you, of course, have the advantage over myself, with my -- those instructing were not present during the trial. I know the result of the trial. I heard your Lordship’s comments on the last occasion we were before you. And I have spoken to my learned friend, Mr Parry, who tells me that, in fact, the witness -- defendant did come up to prove (proof?), the proof of evidence she had given. But of course, she had made that previous inconsistent statement to the police, which I think was used...

COURT: That wasn’t a previous inconsistent statement. The inconsistent statement was the one she made to the police for the purposes of the trial, and I am quite convinced, having seen her give evidence, that that was a lie from start to finish.

MR McGOWAN: Right.

COURT: It was a very wicked thing to do. Because what she was effectively trying to do was to give her co‑defendant 21 years’ imprisonment for something she hadn’t done.

MR McGOWAN: Well, my Lord, I can’t gainsay that, because I wasn’t there.

COURT: No.

MR McGOWAN: I am here to put the best case forward I can on her behalf. I don’t know whether you are taking the view that she should lose any of her guilty discount for that.

COURT: No, I have indicated that she gets her discount, and I can tell you that I am not permitted to add to her sentence by virtue of what she did in the trial.

MR McGOWAN: Yes.

COURT: If she was to be prosecuted for perjury, that would be another matter but so far as this case is concerned, she can only be sentenced for what she’s done.

MR McGOWAN: Yes.

COURT: However terrible her actions were against her co‑defendant.

MR McGOWAN: Yes. Well, my Lord, thank you for the -- that indication. I was going to, if necessary, argue, but I don’t need to do that.

COURT:  You don’t need to.”

27.It is clear that Mr McGowan had twice engaged the judge with his submission that the applicant be afforded a discount to reflect the fact that she had given evidence for the prosecution in the trial of her co‑accused.  Notwithstanding the judge’s statements on 6 July 2015 that the applicant’s evidence was a “disaster” and that no jury would have convicted the co‑accused on that evidence, Mr McGowan pursued his submission that the applicant be afforded a discount for having given evidence for the prosecution.  He did so on the basis that she had come ‘ up to proof ’ in her evidence.  In response, he was met with the rejoinder from the judge that her non-prejudicial statement was “...a lie from start to finish.”  Understandably, given that Mr McGowan, unlike the judge, had not been present in court at the time that the applicant had testified in the trial of her co‑accused, Mr McGowan was driven to say “I can’t gainsay that because I wasn’t there.”  Sensibly, and wholly understandably, Mr McGowan moved on in his submissions and secured an assurance from the judge that no part of the applicant’s discount for her plea of guilty would be lost because she had given untruthful evidence at the trial of her co‑accused.

28.It was in that context, that in his final submissions in mitigation Mr McGowan said of the applicant “...she was prepared to testify, which I make no claim for any extra discount or anything like that”.  He confirmed that to be the case, saying “I am not asking for any extra discount for that.”  Also, he said “For assistance to the authorities.  I am not taking anything.” [13]  It is to those statements that objections were taken.

29.Contrary to the submissions made on behalf of the applicant that Mr McGowan had acted contrary to instructions and incompetently, in fact he had sought a reduction in the sentence of the applicant, to reflect the fact that she had given evidence for the prosecution, and had canvassed the matter with the judge on two occasions.  Only in face of the judge’s clear, very robust indication that he regarded the applicant as having given false testimony and that, as a result, he was not prepared to give the applicant any such discount had Mr McGowan been driven into not pursuing the issue any further.  That was an entirely realistic position to take.  All courts and, for that matter, the defendants are best assisted by counsel who make realistic submissions.  There is no merit whatsoever on this ground of appeal.

30.Allegations that counsel acted contrary to instructions and incompetently are most serious allegations.  They are to be advanced only after careful consideration of all the circumstances.  In the result, in order to assist the Court, Mr McGowan and Mr Henson Lam were required to file affirmations.  These allegations ought never to have been made a ground of appeal.  A mere perusal of the transcripts of the hearings of 6 July and 31 August 2015, which were provided to the parties on 13 December 2015, makes that clear.

31.It is to be noted that the original Perfected Grounds of Appeal against conviction settled by Mr Yeung, dated 2 December 2015, advanced two grounds.  First, that Mr McGowan erred in failing to invite the judge to afford the applicant a discount for having given evidence for the prosecution.  Secondly, that the judge had erred in failing to afford the applicant a discount for the element of risk to her safety that flowed from the fact that she had given evidence for the prosecution.  However, in the Amended Perfected Grounds of Appeal against conviction, filed with the Court on 7 January 2016, it was submitted that Mr McGowan had acted contrary to instructions and incompetently in informing the judge said he did not seek a discount of sentence to reflect the fact that the applicant had given evidence for the prosecution.  So, the amended grounds of appeal were filed with the Court after the parties were provided with the transcript of proceedings on 6 July and 31 August 2015, which demonstrated that the first ground of appeal was utterly bereft of merit.

The applicant’s evidence at the trial of her co-accused

32.Of course, having heard the applicant testify in the trial of the co‑accused, indeed having conducted the whole trial, the judge was best placed to form an assessment of the truthfulness of the applicant’s evidence.  The applicant has not sought to place before the Court the transcript of her testimony.  However, it is clear from the references in the summing up to the admitted lies of the applicant that the judge’s determination in respect of the applicant, to which reference was made earlier, was entirely justified.

33.In his summing up, the judge suggested to the jury that the prosecution case against the applicant “...all really depends upon the evidence given by Miss Yeung.” [14]  Having said that it was the defence case that the applicant was “a lady who was prepared to lie and lie and lie again, over and over again, and you cannot rely on a single word she says because you will not know what is truth and what is not”, the judge went on to say of the applicant that “she told the police in her...interview...a large number of lies in order to cover for this defendant.” [15]

34.Then, having reminded the jury that, in a video record of interview conducted of the applicant in response to having been told by a police officer that packets of what was suspected to be dangerous drug had been found in a white bag carried by her co‑accused as she and the applicant left the premises outside which they were arrested, the applicant said that her co‑accused was holding the bag only because she did so to enable the applicant to lock the door to the premises.  Further, the applicant asserted “she had completely no idea that there were dangerous drugs inside...she has completely no idea that I trafficked in drugs.” [16]

35.The judge went on to remind the jury that it was the applicant’s evidence that “...she was just covering up the defendant who she was trying to keep out of trouble.  It was not true.” [17]  Of the applicant’s change of heart, the judge reminded the jury that she had said in her non-prejudicial statement that:[18]

“ I now wish to testify against the accomplice and get a remission of sentence.”

36.Of the various matters that the applicant had admitted in her evidence to be lies, the judge reminded the jury that the applicant had said in her video record of interview that she had picked up the packet labeled ‘Tea’, found in the bag carried by the co‑accused and in which there were dangerous drugs, “ That’s false.  I picked up the drugs.”  The judge said that the applicant explained “I just mumbled this to the police.  Anything has a reason.” [19]  The judge added:[20]

“ So that is why she gave this false story to the police, she was just mumbling away. “Because when I got the tea sachet it contained drugs”. And then she said this... “I simply said anything which is irrelevant”. And that is the witness that you are being asked to rely upon.” [Italics added.]

37.Next, the judge reminded the jury that the applicant had testified that shortly before their arrest she and her co-accused had been smoking Ice inside the flat.  Of that, he said:[21]

“ And the defence say it just shows you how easily she can make up a story, because it must have sounded quite genuine that, until she realised that there is nothing in the flat with which to smoke ‘Ice’.

And so the next story, “I dropped a box outside before the police arrested me”. No ‘Ice’ bottle, and no rubbish found outside which she had thrown away because the point is made, well of course there are nine officers around and if she dropped a box it would have been picked up instantly to see what it was.”

38.Subsequently, the judge reminded the jury of the applicant’s evidence on that issue:[22]

“ ...she said, “I never had a glass bottle”, smoking bottle that is, at the flat.

“As soon as I stepped out of the flat I put the bag of rubbish in the bin. My friend had walked down a flight of stairs. We lived on the 5th floor. I put the rubbish in the bin.”

... it is a small point, no rubbish was seen to be dropped.”

39.Of the issue between the applicant and her co‑accused, as to whether or not the applicant’s Mercedes-Benz had been used by them that evening in which they returned to the flat one or two hours before they were arrested, the judge reminded the jury that the co‑accused testified that the applicant had picked her up in her car and that they had gone to Tai Po for dinner and shopping.[23]  By contrast, the applicant said “I did not use the car”.[24]  Then, the judge reminded the jury of the applicant’s testimony:[25]

“ She said that it was right that she had used the car - changed it completely. There was not a taxi.

“I made up a story about the taxi because I’m nervous.  I don’t recall the time that day, certainly I remember what happened that day.”

She also added, by the way, of course, that she did not want to tell the police about the car’s involvement because she was afraid about what happened to the car.”

40.As noted earlier, in sentencing the applicant the judge adverted to the fact that in her video record of interview the applicant had given a description of the person from whom she has acquired the dangerous drugs, whom she called ‘Lo Shu’, including the fact that he had a tattoo.  By contrast in her evidence the applicant said that she had never met him.

Conclusion

41.We are satisfied that the judge was entitled to determine that the applicant was entitled to “..no credit whatsoever for the evidence you gave against your co-defendant.” [26]  As Li CJ noted in his judgment in the Court of Final Appeal in Z v HKSAR,[27] with which all the other judges agreed, it is the practice of this Court to afford a discount in sentence, additional to the discount afforded for a plea of guilty, to an applicant who has “...proceeded to give truthful material evidence” at the trial of a person about whom he had given information.[28]  It is not the practice to afford a discount in sentence to an applicant merely for giving evidence for the prosecution.  Clearly, the applicant did not give truthful material evidence.

The risk to the applicant for having testified

42.Next, it was submitted that the judge had erred in failing to afford the applicant a discount in sentence to reflect the fact that by testifying she had put herself at risk to her safety.  In support of that submission, Mr Yeung relied on the judgment of this Court in HKSAR v X [29]. In that case, this Court afforded the applicant, who had pleaded guilty and testified against his co‑accused, a discount of 40% from that taken as the starting point of sentence.  The trial judge declined to give any discount to the applicant, having regard to the fact that the co‑accused had been acquitted at trial.

43.In the judgment of this Court, Yuen JA said that it was to be inferred that the co‑accused had been acquitted of counts of conspiring with X and three others to manufacture dangerous drugs and possession of dangerous drugs not only because the jury did not accept the evidence of the applicant but also because they had not accepted the evidence of police officers as to the presence of the co‑accused in premises, from which he and X emerged to be arrested by the police officers.  For his part, X also testified that he had emerged from the premises with his co‑accused. Paraphernalia for the manufacture of dangerous drugs was found in the premises.  Having said that the judge was wrong to say that the “only” evidence that implicated the co‑accused came from X, Yuen JA said:[30]

“ Accordingly we take the view that some discount should have been given to X if only for the risk to which he placed himself by giving evidence against a co-defendant.”

44.It is to be noted that in HKSAR v X the applicant was recruited by the co‑accused against whom he gave evidence.  Then, he was taught to make crack cocaine by his co‑accused, after which he was given keys to the premises in which the paraphernalia for making dangerous drugs was found at the time of his arrest.  Under the supervision of his co‑accused on those premises he made crack cocaine, which he delivered on the instructions of D and E.  Some days later D provided him with the locations of places at which he was given cocaine by other persons.  On many occasions he made crack cocaine at the premises, for which D paid him $6,000-$7,000 per week.  As Mr Kuan submitted, it was to be inferred from those facts that the applicant was working for a well‑organised drug syndicate.  No doubt, testifying against a member of such a syndicate gave rise to legitimate concerns in the applicant for his safety.

45.By contrast, as the judge suggested to the jury in his summing up, the issue of whether or not the co‑accused knew of the presence of dangerous drugs” “really comes from” the applicant [31]. The judge went on to remind the jury that in its closing speech the prosecution said that the case “boils down to knowledge” and “the only two persons who know the real truth are this defendant and Miss Yeung.” [32]  Towards the conclusion of the summing up, the judge said “...you need to be sure beyond a reasonable doubt that this defendant is guilty based, effectively, upon the evidence given by Miss Yeung. [33] Accordingly, it is clear that, in acquitting the co‑accused of the two counts that she faced, the jury rejected the evidence of the applicant.

46.No submission was made to the judge that, notwithstanding the acquittal of the co‑accused, the applicant ought to be afforded a discount of sentence to reflect the fact that in giving evidence she had exposed herself to a risk of safety to her welfare.  That is not surprising, given the circumstances of the commission of the offences and, in particular the character of the applicant and her co‑accused as evidenced by their criminal records.

47.The applicant was born in December 1979.  In the period March 2005 to November 2009 she was convicted on three occasions of possession of dangerous drugs.  In June 2005, she was convicted of trafficking unlawfully in dangerous drugs and of managing a divan, for which offences she was sentenced to 1 year and 8 months’ imprisonment and 1 year and 4 months’ imprisonment respectively.  Eight months of the sentence of imprisonment imposed on the latter offence was ordered to be served consecutively.  Then, in November 2009 she was convicted, on her pleas of guilty, to trafficking unlawfully in dangerous drugs and possession of dangerous drugs for which offences she was sentenced to 6 years and 8 months’ imprisonment and 4 months’ imprisonment, which sentences were ordered to be served concurrently.  As the judge noted in sentencing, the applicant had been released from prison only three months before the commission of these offences.[34]

48.By contrast, the co-accused, who was 31 years of age at the time that she gave evidence, had one previous conviction only.  That was for possession of dangerous drugs in 2003, when the applicant was 18 or 19 years of age and for which she was fined.

49.There was nothing before the judge nor is there anything before this Court to suggest other than that the applicant, not the co‑accused, was the one who had worked with organised criminal syndicates dealing in dangerous drugs.  We are satisfied that it is to be inferred that those who manage a divan and unlawfully traffick in dangerous drugs have such contact with criminal syndicates.  The co‑accused was, as she admitted in evidence, no more than a regular user of Ice at the time of her arrest.

50.However, apart from the submission being wholly speculative and with any evidential basis, it seems to us there is a more fundamental objection to this Court entertaining the applicant’s claim to be entitled to a discount.  The judge found, and we have said that he was entitled to so find, that the applicant fabricated a case against her co‑accused and, in effect, did so with intent to pervert the course of public justice by obtaining for herself a lower sentence of imprisonment, in fraud of the court.  The risk of harm that she asserts she fears now is from a possibility that in those circumstances her co-accused may seek vengeance against her.  That is not a risk of harm that flows from her providing assistance to the prosecution.  Rather, it flows from her acting contrary to the interests of justice.  It would be absurd for this Court to reward such conduct.

Conclusion

51.For the reasons that we have given, we are satisfied that the applicant was not entitled to any discount in a sentence to reflect the issue of risk to her safety.  None was established.  Furthermore, she had not given truthful evidence.

Enhanced starting point

52.It is to be noted that in the judgment of this Court in Attorney General v Ching Kwok Hung unlawful trafficking in over 600 grammes of Ice calls for sentences of 18 years’ imprisonment and upwards.  The overall amount of Ice in which the applicant trafficked unlawfully on the same date and in the same vicinity was, as the judge noted, 1,105 grammes.  Clearly, the judge was entitled to stipulate a starting point for sentence of 20 years’ imprisonment.  Given the applicant’s previous convictions in relation to dangerous drugs offences, in particular unlawful trafficking in dangerous drugs, the judge was entitled to enhance that starting point by one year’s imprisonment.  The resulting sentence imposed on the applicant of 14 years’ imprisonment was not manifestly excessive.

Conclusion

53.Accordingly, we were satisfied, for the reasons that we have given, that there was no merit in the application for leave to appeal against sentence, which we refused.

Loss of time

54.Having refused the application, we invited Mr Yeung to address the Court as to why this Court should not exercise its power to make a ‘loss of time’ order.

55.Mr Yeung submitted that the application had been made on behalf of the applicant on the advice of counsel at trial in respect of the issue of risk to the applicant’s safety, she having given evidence.  In support of his contention, Mr Yeung relied on a letter from Mr McGowan to the applicant of 8 September 2015.  He contended that it supported his submission that the prosecution had indicated that there was a risk to the applicant in consequence of having given evidence.

56.In his letter dated 8 September 2015 Mr McGowan referred to the judgment of this Court in HKSAR v X, saying that this Court “...in similar, but not identical, circumstances did increase the discount to 40%”.  He advised the applicant that “there is an arguable case for an Appeal.”  Immediately before doing so, he wrote:[35]

“ Whether the Court would take a similar approach in your circumstances, I cannot say-in X there were other witnesses whose evidence may have also been disbelieved, and the trial judge’s criticisms of X therein were not as strident.

However, Mr PARRY’S view was that you had come “ up to proof ” (para 29) and there was also the “risk” (see para 33).”

57.Our attention was not drawn to any passage in the transcript of proceedings or any letter in which Mr Parry expressed the view that the applicant had “ come up to proof ”.  However, as noted earlier, at the hearing of 31 August 2015, Mr McGowan asserted to the judge “I have spoken to my learned friend, Mr Parry, who tells me that, in fact, the witness - did come up to prove (proof?), the proof of evidence she had given.” [36] It is to be noted that Mr Parry, who was present, did not contradict that assertion.

58.By contrast, although we invited him to do so, Mr Yeung did not provide us with any material that supported his contention that Mr Parry expressed the view that there was a “risk” to the applicant.  For the reasons set out earlier, it is difficult to imagine on what basis he would have expressed that view.  Moreover, clearly the references in the single sentence, cited above, in Mr McGowan’s letter to paragraph numbers are to paragraphs of the judgment of this Court in HKSAR v X, not to any other document.  Furthermore, we accept Mr Kuan’s submission that the reference to Mr Parry’s “view” was to the issue of the applicant coming ‘ up to proof ’ only.  The second part of the sentence was a reference to Mr McGowan’s preliminary opinion only.

59.As we determined earlier, the primary ground of appeal that Mr McGowan had acted contrary to instructions and incompetently ought never to have been advanced.  Notwithstanding the preliminary opinion expressed by Mr McGowan in the letter of 8 September 2015 as to the arguability of the second ground of appeal, the responsibility for advancing that ground lies on the shoulders of counsel, Mr Yeung, who settled the grounds of appeal.  It was his duty to ensure that:[37]

“ grounds only put forward where he has satisfied himself that they are arguable; it is not his duty to put forward grounds merely because the appellant wishes him to do so.” [Italics added.]

60.In respect of the second ground of appeal, Mr Yeung was unable to identify any “risk” to the applicant in consequence of her having given evidence, other than the bare, unsubstantiated contention that there existed a risk of revenge by an aggrieved lover.  It is clear that the circumstances of risk obtaining in HKSAR v X were wholly different from those faced by the applicant.  In his letter of 8 September 2015, Mr McGowan adverted to the fact that there were differences in the circumstances.

61.The fact that counsel was prepared to advance unmeritorious grounds of appeal affords the applicant no protection from the exercise by this Court of its power to make a ‘loss of time’ order.[38] Notwithstanding the obvious absence of any merit in the grounds of appeal they were supported vigourously by the applicant in her two affirmations.  She, more than anyone, knew that there was no merit in the grounds of appeal.

62.In the result, pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, we ordered that two months of the time that the applicant has been in custody since the filing of her notice of application for leave to appeal against sentence is not to be reckoned as part of the sentence to which she is subject.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

Mr Y. C. Yeung, instructed by Ernest Tang & Co, assigned by Director of Legal Aid, for the applicant