HKSAR v. Cheung Chi Yuen

CACC 288/2015

[2018] HKCA 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 288 OF 2015

(ON APPEAL FROM HCCC 179 OF 2014)

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

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

_________________________

REASONS FOR JUDGMENT

_________________________

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

1.On 29 January 2015, the applicant appeared before E Toh J (“the judge”) in the Court of First Instance and pleaded guilty to a single charge of, on 27 November 2013, trafficking in a dangerous drug, namely 11.91 kilogrammes of a solid containing 10.25 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 11 August 2015, the judge sentenced the applicantto 20 years’ imprisonment.

2.On 1 September 2015, the applicant filed a Notice of Application for Leave to Appeal against his sentence (Form XI).

3.At the hearing of his application we allowed it and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal.  We set aside the sentence of the judge and in substitution for it we sentenced the applicant to 13 years 6 months’ imprisonment.  We said we would later hand down our reasons for so doing.  These are our reasons.

The background to the offence

4.On 27 November 2013, at about 2:40 pm, the applicant arrived at the Hong Kong International Airport from Abu Dhabi.  He was stopped and searched and the cocaine the subject matter of the charge was found in his suitcase.  Under caution, the applicant stated that a person he called Ah Man had given him HK$25,000 to take the suitcase to Hong Kong and that he guessed it might be dangerous drugs or smuggled goods. 

5.In a subsequent video-recorded interview conducted on the same day, the applicant stated that a person he called Ah Kei had provided him with an air ticket, US$1,300 and a mobile telephone on 19 November 2013 to travel to Abu Dhabi.  Upon arrival in Abu Dhabi he was given a suitcase by Ah Man and told that he would receive HK$25,000 for taking the suitcase back to Hong Kong to Ah Kei. 

6.In pleading guilty to the offence, the applicant accepted that he was unlawfully trafficking in the cocaine, the street value of which was HK$16,912,200.

The mitigation

7.The applicant was aged 40 at the time of the offence and had a clear record.  He was married, had a 7-year-old son and was the sole breadwinner of his family, including his parents who were both aged. 

8.The applicant had been operating a restaurant but had got into financial difficulties.  He tried taking up various other forms of employment, such as taxi driver and construction site worker, but was not able to make ends meet. In this way he was lured into committing the present offence. 

9.In his address in mitigation, his counsel asked the court to take into account the applicant’s plea of guilty, that he was a first offender and that he remained cooperative following his arrest.  Letters written by the applicant and others were placed before the judge.  The judge was not invited to give the applicant a discount on sentence by reason of any assistance he might have provided to the authorities.

The judge’s Reasons for Sentence 

10.After setting out the facts of the case and the matters advanced in mitigation on behalf of the applicant the judge noted that the applicant’s “friends and family consider him very kind-hearted, hardworking and a filial son” and that the applicant’s “fall this time into crime was due to his economic circumstances.”

11.The judge referred to the case of HKSAR v Abdallah[1]where the Court of Appeal laid down sentencing guidelines for trafficking in cocaine and heroin.  The Court of Appeal said that trafficking in 4,000 to 15,000 grammes of cocaine would attract a starting point of between 26 and 30 years’ imprisonment.  For the applicant’s 10.25 kilogrammes of cocaine, the judge said she would adopt a starting point of 28 years’ imprisonment, which she enhanced by 2 years for the international element of trafficking drugs into Hong Kong from another country.  Giving the applicant a full one-third discount for his guilty plea, the judge reached a final sentence of 20 years’ imprisonment and this was the sentence she then imposed.

The new evidence

12.The applicant applied under section 83V of the Criminal Procedure Ordinance, Cap 221 to adduce his affidavit as new evidence on appeal.  In that affidavit, he related how he had provided assistance to the police.  He had given three non-prejudicial statements (NPS) and agreed to be a prosecution witness in a High Court trial in which two persons, Lin Chi Man and Lin Shu Kei, where charged with having conspired together and with him, the applicant, to traffic in the drugs that were found in the applicant’s suitcase.  Lin Chi Man pleaded guilty and Lin Shu Kei went to trial.  The applicant testified in the trial and Lin Shu Kei was convicted by the unanimous verdict of the jury. 

13.In his affidavit he described how he had been constantly threatened not to testify against Lin Chi Man.  One of the inmates making threats was a Chinese male called Fung Chi.  The threats continued after Lin Chi Man and Lin Shu Kei were convicted.  His wife and son were also subjected to intimidatory behaviour.  On 18 September 2017, the applicant was transferred from Stanley Prison to the Security Unit of Siu Lam Psychiatric Centre. Nevertheless, he is still concerned about the safety of his wife and son.  He is also worried that after his discharge from prison he and his family will still be at the risk of harm. 

14.In response to the applicant’s allegations, the respondent applied to adduce one affidavit and one affirmation, namely the affidavit of Ho Yun Yin, a Detective Senior Inspector of the Hong Kong Police Force, and the affirmation of Chau Sai Yiu, Acting Chief Officer of the Correctional Services Department (“CSD”).  In his affidavit Ho mentioned that the police were paying regular visits to the applicant’s family members and that no report of threat or harassment has been received.   In his affirmation, Chau stated that some of the complaints alleged to have been made by the applicant while in prison had not been made at all, or were not supported by CSD’s records.

The Amended Perfected Grounds of Appeal

15.By his Amended Perfected Grounds of Appeal, Mr Bernard Yuen of counsel contended that the applicant should receive a further discount on his sentence as a result of making the 3 non-prejudicial statements which implicated the other persons involved in his drug trafficking offence.  The grounds of appeal assert that the applicant had all along indicated that he was prepared to testify against both Lin Chi Man and Lin Shu Kei and in accordance with that undertaking was the main and crucial criminal prosecution witness in their trial.  The assistance given by the applicant led to Lin Chi Man pleading guilty on the first day of trial and to Lin Shu Kei being convicted after trial. 

16.The applicant testified for 2.5 days in Lin Shu Kei’s trial.   It was claimed in the grounds of appeal that in rendering this assistance the personal safety of the applicant and his family was put at serious risk such that the applicant should receive the maximum two-thirds discount on his sentence.

17.In support of what Mr Yuen referred to as a number of grounds of appeal, but which were essentially one ground of appeal, Mr Yuen submitted that the plea of guilty of Lin Chi Man was directly attributable to the applicant’s willingness to be a prosecution witness.  To this end he attended an identification parade on 5 October 2015 in which he positively identified both Lin Chi Man and Lin Shu Kei.  Furthermore, in the trial of Lin Shu Kei, the prosecution accepted that the applicant gave crucial evidence in accordance with his non-prejudicial statements.

18.In respect of the threats made to the applicant Mr Yuen relied upon what was said by the applicant in his affirmation and described the persistent intimidation of the applicant as an on-going process that included the use of other inmates and extended to intimidatory behaviour towards the applicant’s family.

The respondent’s submissions

19.Ms Hermina Ng, Senior Public Prosecutor, appeared for the respondent.  She accepted that the applicant’s assistance was crucial to the prosecution, that the applicant was the key witness in the trial of Lin Shu Kei and that it was as a result of his assistance that these two persons were convicted. Nevertheless, her position was that the discount to which the applicantwas entitled should not exceed 50%, which would result in the applicant’s sentence being reduced to 15 years’ imprisonment. 

20.She submitted that the applicant’s allegations of the threats made to him “were mostly bare assertions some hearsay in nature”, and were not actually “threats”.  She queried the credibility of some of his allegations and relied on the affirmation of the Correctional Services officer who, in respect of many of the incidents described by the applicant, denied or did not admit that these incidents occurred.  Ms Ng further submitted that the threats that the applicantalleged had occurred did not establish that he was exposed to real and considerable personal risk.  It was her submission that the applicant’s evidence did not bring him into the “supergrass” category and that it was only if he could bring himself into this category that he would be entitled to a two-thirds discount of his sentence.

Discussion

21.The normal discount for assistance provided to the authorities which extends to testifying for the prosecution is 50%.  A person who does so at the risk of harm to himself or his family may become entitled to the maximum discount of two-thirds which is reserved for those who are known as “supergrasses”.  What brings a person into the supergrass category has been the subject of appellate discussion.

22.As far back as 1986, in R v Chan Fu Kui[2], Roberts CJ, in giving the judgment of the Court of Appeal, described a supergrass as “a defendant who had expressed his willingness to assist the police at considerable personal risk in a number of cases.”

23.More recently, in HKSAR v Chan Sik Wai and Anor[3], Stuart‑Moore VP, in giving the judgment of the Court of Appeal, provided a more expansive definition of a supergrass as follows:

“24.   Pausing there, it may be that the learned judge was not entirely accurate in his assessment of what makes a person come within the category which may be properly described as a supergrass, although there is no doubt that the judge was right to have found that D2 was not in this category himself. As this court has previously said, a ‘supergrass’, properly defined, is one who not only gives evidence against others who have been arrested as accomplices to the crime or crimes set out in a single indictment before the court, but also provides evidence against others on further crimes to which he was, more often than not, a party and which enables the police to make arrests based upon the information provided. The gravity of the crimes involved and the extent to which the accomplice has made genuine efforts to provide accurate information about other criminals, usually backed up by giving true evidence against those others, will determine whether he is truly to be regarded as a supergrass and not merely an accomplice to one or more offences, prepared to give evidence for the prosecution against the others charged in that indictment. Most supergrasses, if not all, provide evidence against others after they have been arrested and whilst they are themselves awaiting trial. They are a very unusual breed of offender and the courts have long held that such offenders can expect to be given a discount of about two-thirds of the sentence they would otherwise have received. Others who merely ‘grass’ on their co-accused also put themselves at risk and are entitled to a substantial discount, but seldom will this exceed 50%.”

24.In Z v HKSAR[4] Li CJ, in giving a judgment with which the other members of the Court of Final Appeal agreed, set out the factors relevant to the determination of whether assistance provided by a defendant to the authorities merited a discount and the extent of that discount, said at paragraph 13:

“ In deciding whether the assistance given by the defendant to the authorities merits a discount in a particular case and if so, its extent, a number of factors should be taken into account. Broadly speaking, the most important factors usually include:

(a) The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

(b) The likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody and danger to himself and his family after his release from prison.”    

25.From the comments in these cases and other judgments where the characteristics of a supergrass have been discussed, it can be said that in order to qualify as a supergrass:

(1)   the assistance provided by a defendant must relate to crimes of great gravity;

(2)   the nature of the defendant’s assistance must be significant.  It must be significant in the sense that it can be said of the assistance, where the defendant does not testify, that it is a key reason why other offenders are brought to justice; or, where the defendant does testify, that his evidence was a crucial part of the prosecution case.  Often it will be able to be said that without the defendant’s assistance the particular crime would have gone undetected; the particular offenders would have gone unidentified or that the particular criminal activity would have gone un-prosecuted;

(3)   the assistance itself must also be substantial.  For example, the assistance may be on-going over a period of time and may involve multiple acts of assistance such as the giving of statements, the participation in identification parades and the testifying in multiple trials including re-trials;

(4)   the assistance will often expose the defendant, or his family or others close to him, to the risk of harm.  Although this is commonly encountered as a feature of the supergrass it is not a prerequisite.  Where it is encountered, then clearly the greater the risk of harm, and the more serious the harm to which the defendant and/or those close to him are exposed, the more likely it is that the defendant will fall into the supergrass category.

26.When determining whether a defendant falls into the supergrass category the sentencing court must consider the evidence in the round, having regard to all the matters we have set out above, but remembering that to qualify for a two-thirds discount there must be present features that distinguish the defendant from the normal cooperating accomplice who testifies against his co-accuseds.  The true supergrass is an exceptional category of cooperating defendant who has been described as being “extremely rarely encountered.”[5]

27.Mr Yuen’s submissions relied heavily on persuading us that the applicant and his family have already faced and will continue to face, an on‑going risk of serious harm.  If we were persuaded that this was so then, he argued, the applicant should fall into the supergrass category and should be entitled to a two-thirds discount on his sentence.  At the hearing of the application Mr Yuen realistically accepted that he may have difficulties in pitching his case this high but submitted that the applicant was nevertheless entitled to a discount greater than 50% even if we found that he was not a supergrass. 

28.The authorities are clear that being exposed to the risk of harm does not necessarily entitle a defendant to being categorized as a supergrass and also that even if a person is so categorized he is not automatically entitled to a two-thirds discount of his sentence.  In R v Lai Kin Keung[6], Mortimer JA, in giving the judgment of the Court of Appeal, said:

“The appellant has given great – and largely successful – assistance in the prosecution of others. This has put him and his family at personal risk. We have heard contrary submissions from the appellant and the Crown as to whether he falls within the ‘supergrass’ category. In this case it is unnecessary to resolve that nice technicality. We do not regard the guideline to be that every ‘supergrass’ must receive a two-third reduction in his sentence. This is the maximum reduction that such an accused can expect. In each case it falls for the appropriate tribunal to assess the full circumstances of the assistance given and the risks faced.”

29.There is clearly a range between a 50% discount and a two‑thirds discount into which cooperating defendants may fall. It may well be that the closer they are to the end of the range, the more likely they are to be categorized as a supergrass, and the closer they are to the beginning of the range, the less likely they are to be so categorized.  But what is important is not the label they are given but how their assistance and personal circumstances are evaluated by the sentencing court. 

30.That this is so is apparent from the approach that was adopted by the Court of Appeal in R v Siu Chun Chung & Anor[7].  Power Ag CJ, in giving the judgment of the Court of Appeal in that case quoted the definition of a supergrass by Roberts CJ in Chan Fu Kui and then said at page 4 of the judgment:

“… We appreciate fully the extent of co-operation given by the 1st applicant and the importance of the evidence which he gave at trial. If it can be said that he falls within the category of supergrass he must be placed at the bottom rather than the top of that category. There is no concrete indication of considerable personal risk nor has he given evidence in a number of cases. However he be categorized the fact of the matter is that he gave vital evidence in an important drug prosecution which resulted in the conviction of two offenders and there is real possibility that at some time in the future they might try to punish him.”

31.A similar approach was taken in a more recent example of a defendant being awarded a discount in excess of 50% but not being categorized as a “supergrass”.  The case is HKSAR v W[8]. In this case the Court of Appeal awarded an extra discount to the applicant for his courage in continuing to help the authorities whilst being subjected to threats.  Stock JA, as he then was, in giving the judgment of the Court of Appeal, said at paragraph 19:

“ Turning then to the application itself, the assistance given in this case does not take the applicant into a ‘super grass’ category. But it takes the applicant into a category beyond the normal case of assistance leading to arrest and giving evidence in a case against the person arrested, for in this case the applicant persisted in his assistance despite letters, which we have seen, which he received whilst in prison which were clearly threatening in their message. The pressure placed on him not to testify was heavy, and his determination not to succumb to that overt pressure deserves some extra credit. …”

32.Ultimately, the task of the sentencing court is to make a value judgment of the assistance rendered and an assessment of the risks to which the defendant and those close to him have been, and may continue to be, exposed.  This evaluation is made in the context of the policy of our courts of encouraging offenders to assist Hong Kong’s law enforcement agencies in performing their role of detecting, investigating and preventing crime and rewarding an offender when such assistance is forthcoming.

33.Having considered all the matters advanced on behalf of this applicant we are not persuaded that he falls into the supergrass category.  Without in any way downplaying the value and importance of his assistance we are of the view that it cannot be said of his assistance that it met the high level required to place him in the supergrass category.  The applicant was involved in only one incident of criminal activity and assisted the police and prosecution in bringing to justice only the other two persons who were also involved in this same incident.

34.Furthermore, no attempt was made to cause actual harm to the applicant or anyone close to him and there is no reason to believe that the risk of actual harm being done to him, or those close to him, after he leaves prison is particularly great. 

35.Nevertheless, we do accept that he was subject to persistent intimidatory behaviour and that he did not succumb to it.  It is not necessary for us to resolve any conflicts between the parties on the allegations of the applicant for it is clear that intimidatory behaviour of some kind took place over a period of time.  The fact that the police and the Correctional Services Department recognized the need to transfer the applicant, for his own protection, to the Security Unit of Siu Lam is, perhaps, the greatest testament to the existence of intimidatory behaviour.  Furthermore, the purpose of this behaviour, clearly, was to dissuade him from testifying for it commenced shortly after the applicant participated in an identification parade in which he identified Lin Chi Man and Lin Shu Kei.  Both these persons were believed by the applicant to have triad connections and the ability to carry out the threats which, through others, they communicated to him.

36.Taking all the circumstances into account, we are satisfied that in respect of this applicant we should follow the approach adopted by the Court of Appeal in the W case.  Notwithstanding that this applicant cannot be categorized as a supergrass, we are persuaded that he should receive a further discount of his sentence to reward him for not succumbing to the initimidatory behaviour that targeted him.  The sentence that we imposed on him in substitution for that of the judge reflects a total discount of 55%.  

Conclusion

37.For these reasons we allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal.  We set aside the sentence of the judge and in substitution for it we sentenced the applicant to 13 years 6 months’ imprisonment. 

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

Mr Bernard Yuen, instructed by Yu Sun Yau Mak & Lawyers, assigned by DLA, for the applicant