HKSAR v. Ymy

[English Translation - 英譯本]

CACC 30/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO 30 OF 2017

(ON APPEAL FROM HCCC 251/2015)

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REASONS FOR JUDGMENT

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

Background

1.On 18 July 2016, the applicant pleaded guilty before Tong J (trial judge) to a count of trafficking in 81.5 grammes of a crystalline solid containing 80.8 grammes of “ice”.  Thereafter, on 17 January 2017, he was sentenced to 7 years and 4 months’ imprisonment.

2.On the basis that 14 grammes of the dangerous drugs in question was for the applicant’s own consumption while 66 grammes was for trafficking, and having stated that possession of 10 odd grammes of “ice” would also lead to quite a substantial sentence, the trial judge eventually adopted 11 years as the starting point, and reduced it by one-third to 7 years and 4 months on account of the applicant’s guilty plea. 

3.The applicant was aggrieved by the sentence.  On 8February 2017, he made an application for leave to appeal, seeking the court’s leave to appeal against sentence.  After a hearing, we dismissed the application.  Below are the reasons for our judgment.

Ground of appeal

4.Mr Andy Hung, counsel for the applicant, did not raise any objection to the starting point adopted by the trial judge or his underlying sentencing principle.

5.Mr Hung’s only complaint was that in sentencing, the trial judge had failed to take into account the assistance rendered by the applicant to the authorities in respect of offences committed by others.  Mr Hung’s stance was that considering the assistance rendered to the authorities by the applicant and the possible consequences he would face as a result, he should have been entitled to a reduction of sentence of more than one-third.

Discussion

6.According to the information provided by the prosecution, the applicant committed the present offence on 17 January 2015. At the end of April 2016, he indicated his wish to provide crime information to the police.  However, on 16 May 2016, when the police visited the applicant, he changed his mind and would not provide any information to the police.

7.On 8 June 2016, the applicant indicated through his lawyer that he, once again, wished to meet with the police.  Thereafter, the applicant disclosed certain crime information to the police in 3 non-prejudicial statements.  The applicant also positively identified the person concerned as alleged by him in an identification parade.  The applicant alleged that the person concerned had made use of the two mobile phones found on the applicant to contact and direct him to “traffic in dangerous drugs”.

8.Based on the information provided by the applicant, the police conducted thorough inquiries and arrested the person concerned.  Despite the positive identification of the person concerned by the applicant in the identification parade, the police eventually did not commence any prosecution in light of the information provided by the applicant.

9.It was the stance of the police that the applicant had only made the offer of assistance 16 months after his arrest but thereafter suddenly changed his mind.  A month later, the applicant made another offer of assistance.  However, inconsistencies in the information provided by the applicant called into question his reliability.  Further, his claims were not corroborated at all.  The police were of the view that no prosecution could be taken based on the information provided by the applicant.  The stance of the police was eventually affirmed by the Department of Justice.

10.To solve crimes and bring offenders to justice, the court will encourage someone who has committed a criminal offence to provide information to the police on offences committed by others.  One way to so encourage is to reduce the sentence of the offender providing such information, the extent of which shall be determined according to the nature of the information provided and the consequences the provision of such information has on the offender (see Z v HKSAR [2007] 10 HKCFAR 183).  However, the court must be rigorous in dealing with the matter to preclude an abuse of the said mechanism of sentence reduction by offenders who, on the one hand, claim they offer assistance to the police while, on the other hand, ensure that the assistance they render will not produce substantive results.

11.It was our view that in general circumstances, if an offender wishes to provide information on crimes committed by others in exchange for sentence reduction, one of the conditions is that the information provided must be valuable information or it will only be a waste of police resources.  The Court of Appeal stated in paragraph 11, page 462 of the judgment of HKSAR v W [2014] 2 HKC 459:

“… where information provided in fact leads nowhere, the system opens itself to abuse if credit is given merely for the provision of detailed and specific information which in the event bears no fruit. And ‘fruit’ in such a case is not produced by mere identification without the assistance of the accused in actually securing, directly or indirectly, the prosecution and conviction of the person concerned.”

12.In dealing with the above issue, the court must exercise its discretion appropriately and prudently to come to a fair and reasonable decision, or the system of sentence reduction by provision of crime information will certainly be abused.

13.The applicant denied refusing deliberately to co-operate with the police and stated that he had truthfully related to the police matters within his knowledge.  He also denied inconsistencies in the information provided as alleged by the prosecution.  He also stated that there was objective circumstantial evidence to support his stance.

14.The objective circumstantial evidence referred to by the applicant per se did not support the applicant’s allegation against the person concerned.  Further, it was an undisputed fact that it was not until over a year after the commission of the offence by the applicant that he first indicated his willingness to assist the police.  And on the information provided by the applicant, there was no adequate basis for the prosecution to prosecute the person concerned, let alone have him convicted.

15.In fact, before the applicant was sentenced, the prosecution had already made it clear that in respect of the information provided by the applicant, “the prosecution had completed the inquiries and no further action would be taken”.  At that time, counsel for the applicant accepted the prosecution’s submission and did not plead for a further reduction of sentence by reason of the assistance he had rendered to the prosecution.  The trial judge also took the view that the information provided by the applicant did not constitute a further mitigating factor.  The applicant was not entitled to make an application for leave to appeal against his sentence on this same ground after he was sentenced.

16.We had given careful consideration to the background of the matter and it was our view that we should not exercise discretion to allow the applicant a further reduction of sentence in respect of his provision of information to the police.

17.We dismissed the applicant’s application for leave to appeal against sentence.

Andy Hung, assigned by the Legal Aid Department, for the applicant

Laura Ng, Senior Public Prosecutor, of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.