HKSAR v. Chan Po Yu

CACC 134/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 134 OF 2016

(ON APPEAL FROM HCCC 69 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.The applicant was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The Particulars of Offence alleged that on 31 August 2014 at Hong Kong International Airport the applicant trafficked in 1,349 grammes of a crystalline solid containing 1,340 grammes of methamphetamine hydrochloride (“Ice”).

2.The applicant appeared before Deputy High Court Judge Wilson Chan (“the judge”), as Wilson Chan J then was, on 4 January 2016 and pleaded guilty to this offence.  On 5 May 2016 she was sentenced by the judge to 16 years 8 months’ imprisonment.

3.She subsequently filed a Notice of Application for Leave to Appeal against her sentence.  At the hearing of the application we allowed it, we set aside the sentence of the judge and we sentenced the applicant to 12 years 6 months’ imprisonment.  We said we would hand down our reasons for doing so at a later date.  These are our reasons.

The background to the offence

4.The Summary of Facts, which was admitted by the applicant and used for the purposes of her sentencing, revealed that on 31 August 2014 at Hong Kong International Airport the applicant approached the check-in counter for a flight to Sydney, Australia. She was intercepted by police officers who, on searching a compartment of her backpack, discovered two packets of suspected dangerous drugs.  These suspected dangerous drugs were subsequently confirmed to be the quantity of Ice that is the subject of the charge.

5.When the applicant was arrested for trafficking in a dangerous drug she said under caution: “I carry dangerous drugs to Australia for a friend only because I owe someone money.”

6.In a video record of interview the applicant later admitted:

(a)   In 2013 she became acquainted with a man by the name of “Chan”.  This person offered her a job of trafficking in drugs but she refused him at that time.

(b)  In mid-August 2014 Chan approached the applicant again and offered her HK$30,000 to traffic drugs from Hong Kong to Australia.  As the applicant was in need of money she accepted the offer.

(c)   After further conversations with Chan the applicant arranged to take a flight to Sydney, Australia on 31 August 2014 and return on 5 September. 

(d)  On 22 August 2014 the applicant met up with two men named Kelvin and Chong.  Chong provided her with HK$12,200 to purchase an air ticket and pay for her accommodation.

(e)   On 30 August 2014 the applicant met up with Kelvin and Chan in the Mainland.  Chong later appeared and gave the applicant a backpack which the applicant sensed contained dangerous drugs.  The applicant was instructed to bring it back to Hong Kong and then transport it to Australia.  She was told someone would contact her to collect the drugs after she arrived in Sydney. 

(f)   The applicant then returned to Hong Kong with Chan and Kelvin.  She claimed she had not yet received any reward for her trafficking.

7.In August 2014 the estimated retail value of the seized dangerous drugs was HK$574,674.

The mitigation

8.The applicant was 25 years of age at the time of sentence, having been born in December 1990.  She had completed Form Five education and was single and unemployed at the time of her arrest.  She had no criminal record.

9.Her counsel informed the court that the applicant’s mother was a single mother who brought up the applicant without any assistance.  The mother and daughter relationship was not a happy one and so, at around 18 years of age, the applicant started living with her aunt, her aunt’s husband and her cousins.  Living with her aunt and cousins was a happy family environment.  However, the aunt was living on social welfare benefits and the family was suffering financially.  The aunt’s husband was indebted to others and the aunt used the part of the money she received from social welfare to pay off a debt collector. 

10.The applicant was aware that her younger cousins, who were all attending school, would have insufficient money to pay for their text books.  Thus, when she was approached to traffic in drugs and was offered a reward of about HK$30,000 she thought she would be able to use this money to meet the school fees and other expenses of her cousins.  It was for these reasons that she eventually agreed to participate in drug trafficking.  She also thought that if there was any spare money left over then her aunt would be able to pay the debt collector.

11.Since being remanded in custody the applicant had shown remorse and had made an offer to assist the police.  She had also started a long distance learning course in marketing management offered by the Chinese University.  All of this demonstrated, so her counsel submitted, that the applicant was determined to turn over a new leaf.

The judge’s Reasons for Sentence

12.After setting out the facts of the case and the mitigation advanced on the applicant’s behalf the judge referred to the fact that the applicant had offered to testify against the person Kelvin in a trial that was thought would take place in July 2017.  As that had not yet happened, the judge said he would not be able to provide any discount to the applicant for a mere promise to assist.  The judge said that any assistance rendered by the applicant in the future would have to be addressed by the Court of Appeal. 

13.Directing himself on the relevant sentencing tariff relating to the drug “Ice” the judge adopted a starting point of 23 years’ imprisonment for the 1,340 grammes of methamphetamine hydrochloride.  The judge then enhanced the starting point by 2 years to take into account the international element.  This resulted in a final starting point of 25 years’ imprisonment which the judge then discounted by one third to allow for the applicant’s guilty plea. The applicant was thereupon sentenced to 16 years 8 months’ imprisonment.

The Perfected Grounds of Appeal

14.In his Perfected Grounds of Appeal against sentence, Mr John Marray, who appeared as counsel on this application, advanced only one ground of appeal.  This ground of appeal is that in March 2017 the applicant gave evidence as a prosecution witness in the case of HKSAR v Cheung Chi Wong HCCC 126/2016.  As a result of her testimony, and other prosecution evidence, Cheung Chi Wong was convicted of conspiracy to traffic in a dangerous drug and sentenced to 26 years’ imprisonment.  By this ground of appeal the applicant sought a further reduction of her sentence for the assistance she had rendered to the prosecution which had led to the conviction of Cheung Chi Wong.

15.In support of this ground of appeal Mr Marray referred to the relevant authorities and submitted the applicant should be given a total discount of 50% for the assistance she had rendered. 

The respondent’s submissions

16.Ms Hermina Ng, Senior Public Prosecutor, appeared for the respondent.  She confirmed that the applicant had provided the assistance claimed and conceded that the applicant was entitled to a 50% discount of her sentence.

Discussion

17.The applicant does not take issue either with the starting point adopted by the judge or the enhancement of that starting point to allow for the international element.  We shall therefore use the same figures employed by the judge.  It is not disputed that the applicant fulfilled the offer made by her at her sentencing hearing and did, in fact, testify for the prosecution.  However, at the time of sentence she could not be given credit for so doing as it had not yet taken place.

18.Now that the applicant has carried out her promise of assistance it falls to this court to give her credit for having done so.  It is settled law that the usual discount awarded to a defendant in return for testifying for the prosecution is 50%.  It can be increased further if the circumstances warrant but there are no such circumstances here. 

19.Discounting a starting point of 25 years’ imprisonment by 50% results in a sentence of 12 years 6 months’ imprisonment.

Conclusion

20.For these reasons we allowed the application for leave to appeal against sentence and treating the application as the hearing of the appeal we allowed the appeal, set aside the sentence of the judge and imposed on the applicant a sentence of 12 years 6 months’ imprisonment.  

Ms Hermina Ng SPP, of the Department of Justice, for the respondent

Mr John Marray, instructed by Tsang, Chan & Woo, assigned by DLA, for the applicant