HKSAR v. Lo Sze Tung Stephanie

CACC 190/2017

[2018] HKCA 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 190 OF 2017

(ON APPEAL FROM HCCC 104 OF 2017)

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Before: Hon Macrae VP and McWalters JA in Court

Date of Hearing: 10 July 2018

Date of Judgment: 25 July 2018

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JUDGMENT

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

1.The applicant was charged with unlawfully trafficking in a dangerous drug, namely 1,005.28 grammes of a crystalline solid containing 979.11 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant was D1 on the charge sheet. D2 was separately charged on the same charge sheet with the same offence of unlawfully trafficking in a dangerous drug but in respect of 1.99 kilogrammes of a crystalline solid containing 1.94 kilogrammes of Ice. They both pleaded guilty in the magistracy on 20 March 2017 and were committed to the Court of First Instance for sentence. On 12 June 2017 the applicant was sentenced by D’Almada Remedios J (“the judge”) to 14 years and 2 months’ imprisonment.[1]

2.On 23 June 2017 the applicant filed a Notice of Application for Leave to Appeal her sentence (“Form XI”).

3.At the hearing of the application we reserved our judgment which we said we would hand down at a later date.

The facts admitted by the applicant

4.On 2 September 2016, at about 8:23 pm, the applicant was intercepted for Customs clearance at the arrival hall of Lok Ma Chau Control Point.  She was carrying a sling bag and in this bag Customs officers found a transparent bag of suspected Ice and some crystalline solids also suspected to be Ice.  In her left trouser pocket they found a small plastic bag containing suspected Ice. The items found in her sling bag and left trouser pocket were subsequently confirmed to contain the Ice that is the subject matter of the charge.  The retail value of this Ice was estimated to be $364,916.

5.In answers given under caution the applicant admitted owning the bags of Ice and claimed that she was helping D2 to deliver the Ice to someone at Mongkok.  She said she was willing to participate in a controlled delivery of the Ice.

6.She also told the Customs officers that D2 was then crossing the Huanggang Port Control Point in a 7-seater private car. 

7.At 8:55 pm, at the Lok Ma Chau Control Point Customs officers successfully intercepted a 7-seater private car in which D2 was one of the passengers.  The 1.94 kilogrammes of Ice that is the subject of his charge was found in his rucksack.

8.At about 8:58 pm and 11:35 pm on the same day, whilst the applicant was in Customs’ custody, she had telephone calls with the person who was to receive the drugs.  He urged her to act quickly and to deliver the drugs to Butt Street, Mongkok.

9.With the co-operation of the applicant, Customs officers arranged for a controlled delivery of the Ice to take place the following day at about 1:05 am.  The applicant was brought by Customs officers to a McDonalds restaurant in Mongkok and although the applicant had a number of telephone calls with a male by the name of Ah Lung, and his agents, the intended recipients of the Ice, no one turned up to take delivery of it.  The operation was then terminated. 

10.In her video-recorded interview, the applicant said that:

(a)  she had been unemployed for around 9 months;

(b)  on the day of her arrest, D2 had called her for a job on the Mainland.  They met up at around 5 pm that day and were later given by Ah Lung, whom she had never seen before, a rucksack containing three large bags and one small bag of Ice.  She took one large bag and the small bag, and D2 took the remaining two large bags.  Thereafter, they brought those bags of Ice into Hong Kong separately; and

(c)  she was promised a reward of $5,000 for delivering the large bag of Ice.

11.In pleading guilty to the offence, the applicant accepted that she was in possession of all the Ice found on her for the purpose of trafficking.

The mitigation

12.The applicant was 36 years of age and divorced, with no children.  Both her parents are dead.  She had two previous convictions for possession of dangerous drugs, the second having taken place in 2001.  It was submitted on her behalf that she committed the offence as a result of having been cheated by her husband of all her savings and needing money in order to return to Hong Kong and re-establish herself here. 

13.In mitigation, her counsel (not Mr Wong) accepted that the applicant’s greatest mitigating factor was the fact that she had pleaded guilty and that she had, immediately upon her arrest, provided assistance to the Customs and Excise Department in apprehending D2.  But, for reasons not apparent from the transcript, her counsel introduced doubt as to whether D2’s apprehension was directly attributable to the applicant’s assistance.  He said:

“I asked the prosecution about this and they say that it so happens that the information came and then there was a vehicle registration number where D2 was in and as a result it was intercepted and searched. So I don’t know if we can say directly as a result of D1’s information, but it could be as a result of the information provided by D1 at the time when she was arrested at 8.23 pm.

Your Lady will note from paragraph 4 that the 2^nd defendant was arrested at 8.55 pm, so the information that she provided at the scene may have been the result of the successful apprehension of the 2nd defendant. I say no more on that, my Lady.”[2].

As to the controlled delivery, it was accepted that nothing came of it, although the applicanthad done her best to assist the authorities.

The judge’s Reasons for Sentence

14.After setting out the facts of the case the judge turned to the mitigation that had been advanced on behalf of the applicant and D2.  The judge referred to the applicant’s participation in the controlled delivery, saying:

“As for D1, she did participate in a controlled delivery but, due to no fault of hers, that did not come to any fruition. On that basis, she does deserve a further discount to which I shall give a 40 per cent discount.”[3]

15.However, the judge made no mention of the applicant’s assistance in the apprehension of D2. 

16.The judge then proceeded to pass sentence on the applicant and D2.  She referred to the sentencing guideline for trafficking in over 600 grammes of Ice as laid down in HKSAR v Tam Yi Chun [4]and HKSAR v Abdallah [5]. For the 979.11 grammes of Ice in which the applicant trafficked, the judge adopted a starting point of 21 years and 9 months’ imprisonment, which she then enhanced by 23 months to allow for the presence of the aggravating factor of the international element, making a final starting point of 23 years and 8 months’ imprisonment.  The judge concluded her sentencing of the applicant by saying:

“I mentioned earlier that you will be given the full one-third discount for your plea of guilty and you participated in a controlled delivery, and therefore the total discount will be one of 40 per cent. The resulting sentence to which you shall serve will therefore be 14 years and 2 months’ imprisonment.”[6]

The Perfected Grounds of Appeal

17.Mr Wong, counsel for the applicant here but not below, advanced two grounds of appeal against sentence, both of which attack the 40% discount on sentence awarded by the judge as being insufficient. The first ground complains that the judge erred by focussing only on the applicant’s assistance in the controlled delivery operation and failed to reflect the assistance she rendered to the Customs and Excise Department in providing information on D2, which then led to his arrest.  

18.The second ground of appeal is that for the full extent of the applicant’s assistance she is entitled to a discount substantially greater than 40%. 

19.At the hearing of the application we queried Mr Wong whether the applicant had agreed to be a prosecution witness against D2 was whether a non-prejudicial statement had been taken from her for that purpose.  After taking instructions he informed us that this option had never been raised with the applicant or explored with the prosecution.  Nevertheless, he asked us to treat her as though she was willing to testify for the prosecution as she now instructed him that had that option been raised with her at the time she was negotiating her plea of guilty she would have agreed to it.

The respondent’s submissions

20.Mr Andy Lo, Public Prosecutor, for the respondent, submitted that the 40% discount was adequate in the circumstances of the applicant who, although she assisted in volunteering information in respect ofD2, was not required to testify against him in court.  Furthermore, the applicant did not expose herself to the risk of harm by assisting the authorities. 

21.Mr Lo argued that it can be inferred that the judge was aware of, and had regard to, the assistance provided by the applicant in apprehending D2 as it was canvassed by the applicant’s counsel in the course of his address in mitigation.

22.Mr Lo confirmed that the prosecution had not received from the applicant any offer to be a prosecution witness and had not raised with her legal representative that possibility.   

Discussion

23.From a reading of the judge’s Reasons for Sentence it is clear to us that in sentencing the applicant the judge did not take into account the assistance rendered by the applicant in apprehending D2. The way the applicant’s counsel advanced this aspect of the mitigation undoubtedly left the judge in a confused and uncertain state of mind on whether D2’s apprehension was in fact attributable to the applicant’s information.  This aspect of the applicant’s mitigation was appallingly handled by her counsel.  It is regrettable that prosecuting counsel did not immediately rise to his feet and clarify for the benefit of the judge the truth of the situation. 

24.We are satisfied that the appeal must be allowed.  The judge having been led into error by the parties it now falls to us to sentence her afresh.

25.In view of the claim by Mr Wong that the applicant should be treated as though she was a willing prosecution witness we sought more information on the procedural history of the applicant’s plea.

26.We were informed that the applicant was initially charged with conspiring with D2 to traffic in the total quantity of Ice that both of them had sought to transport from the Mainland into Hong Kong.  This is hardly surprising given the admissions that the applicant made in her video record of interview.  Negotiations then took place between the prosecution and the Director of Legal Aid and these resulted in a plea agreement in which the applicant would plead guilty to a substantive count of trafficking in a dangerous drug, the particulars of which would be limited to the quantity of Ice that she alone transported. 

27.The plea agreement with the applicant became public knowledge at a magistracy court hearing that took place on 27 February 2017 at which D2 was present.  Between this date and 20 March 2017 D2 also decided to plead guilty.  To what extent D2’s decision to plead guilty was influenced by his knowledge that the applicant was pleading guilty and by a concern that the applicant might ultimately become a prosecution witness should he plead not guilty, is simply not known.  However, by then D2 would have known that his apprehension was due to the applicant informing on him and that in her video interview she had revealed all she knew to the authorities and in doing so had thoroughly inculpated him. 

28.Since the Court of Appeal decision in HKSAR v Ngo Van Nam[7] defendants will only receive a full one-third discount for a guilty plea if they enter it at the first opportunity.  For defendants who are facing trial in the Court of First Instance this will be when the magistrate makes the committal decision, either committing the defendant for trial or committing him for sentence.  By this time the defendant will have received a committal bundle and have had the opportunity to consult with a lawyer.  It is our understanding that at this stage the Director of Legal Aid will not usually have briefed counsel and the lawyer advising the defendant will be from within his department.

29.A consequence of Ngo Van Nam is that pressure is placed on the prosecution to serve as quickly as possible a committal bundle on a defendant; pressure is placed on the Director of Legal Aid to provide legal services to a defendant before his committal and to resolve with the defendant what his plea will be; and pressure is placed on a defendant to decide by committal whether he will be pleading guilty at that time.

30.With all the focus on these matters it is understandable that at this early stage of the proceedings the prosecution does not generally explore with a defendant the possibility of that defendant pleading guilty and testifying against a co-accused.  But, whether a defendant pleads guilty will be influenced by the strength of the prosecution case and if an accomplice decides to align himself with the prosecution that will usually strengthen the case against a co-accused.  The stronger the case against him the more likely it is that a defendant will admit his guilt.

31.However, resolving the question of whether to use an accomplice in the prosecution case is also important to the fairness of the procedure.  In order to receive a full one-third discount the defendant must enter his plea at this early stage.  But, as we have said, a defendant’s decision to plead guilty is influenced by his perception of the strength of the prosecution case and the strength of that case may be dramatically altered by the absence or presence of a co-accused accomplice witness. It is therefore, desirable, that when a defendant is deciding what plea to enter he is in possession of the key pieces of prosecution evidence. 

32.In situations, such as the present, where there is a very obvious possibility that a defendant might be willing to plead guilty and might be willing to be a prosecution witness, we would urge the Director of Public Prosecutions to encourage his prosecutors and law enforcement agency clients to explore these possibilities with a defendant as part of the process of preparing a committal bundle.  That is, of course, only if the prosecutor responsible for the case is persuaded that employing the cooperating defendant as a prosecution witness would be advantageous in the prosecution of the co-accused.  

33.In respect of the Director of Legal Aid we would urge his lawyers, when getting instructions from their clients, not to just focus on their immediate need to determine the client’s plea but also, where the plea is one of guilty, to address the issue of how the client’s longer term interests can best be advanced.  The plea of guilty will ultimately obtain for the defendant a one-third discount on sentence but that will occur at some time in the future after the defendant has been committed for sentence to the Court of First Instance.  Having already gained this benefit the defendant and his legal representative should turn their attention to the question of how, if at all, the defendant’s position can be further improved.  In many cases no such further improvement may be possible but nevertheless attention should always be given to this issue.

34.In circumstances such as those that existed in the present case the obvious question for a defendant’s legal representative to ask of his client is whether the defendant wished to continue assisting the prosecution by making a non-prejudicial statement and offering to become a prosecution witness. Even if such an offer, for whatever reason, was not accepted it would still have importance in establishing the defendant’s credentials as a remorseful offender who wished to make amends for the damage caused by his criminal conduct.

35.In respect of the applicant the prosecution did not explore with her the possibility of her becoming a prosecution witness, nor did her legal representative discuss such a possibility with her.  However, her claim now that had that option been raised with her she would have agreed to be a prosecution witness is hardly surprising given that the applicant will have detected from the exchanges in court that an enthusiastic affirmative response may very well benefit her.

36.It has fallen to us to assess the credibility of her assertion. That it comes late in the day cannot be said to be the fault of the applicant as she never received any legal advice on this option.  Her behaviour from the moment of her arrest has been consistently cooperative.  She informed on D2, she fully revealed her involvement with him in the trafficking of the Ice and as soon as she received legal representation she authorized negotiations to take place with the prosecution on her plea of guilty.  Indeed, so obviously was she a candidate to become a prosecution witness that it is surprising that no one explored that option with her. 

37.We accept that had it been explored with her at the time she was negotiating her plea she would have agreed to provide a non-prejudicial statement. On the assumption that her non-prejudicial statement was consistent with the contents of her video record of interview, and we have no reason to harbour any doubt about this, then she could, potentially, be a prosecution witness.  However, we cannot ignore the possibility that the prosecution might have declined her offer of assistance if for no other reason that they might have decided that they already had more than enough evidence against D2.

38.All of this has led Mr Wong to submit that the applicant should be accorded the sentencing status of a defendant who has offered to testify for the prosecution and would have done so but has been denied that opportunity because the person she would have inculpated pleaded guilty.  

39.Mr Wong’s submission is based upon what might have been with the applicant, rather than what was.  However, even if the difference between the two is more the fault of the system and less the fault of the applicant, we cannot now re-write history in the way Mr Wong asks so that the outcome is more favorable to his client.  The most we can say is that if asked to be a prosecution witness, the applicant would have agreed.

40.That still leaves the question of whether, a defendant in this position is entitled to a discount of her sentence greater than 40%.  To answer this question requires an analysis of the case law.  

41.In Hong Kong the sentencing discount range starts at a one-third discount on sentence for a plea of guilty and extends up to a two-thirds discount for assistance to the authorities rendered by a person who is a supergrass.  Within these parameters it is possible to identify certain milestones, namely the 40% discount and the 50% discount, but neither of them can be said to be an immutable demarcation or boundary line beyond or behind which a judge cannot go for a particular form of assistance.  Ultimately, it will be for the sentencing judge to make an assessment of the assistance rendered by a defendant in accordance with statements of guidance provided by the appellate courts and to bear in mind the purpose of the policy underlying the granting of these discounts.

42.That policy was described by Li CJ in giving a judgment with which other members of the Court of Final Appeal agreed in Z v HKSAR[8] at paragraphs 10-11:

“10.  The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest.  The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime.  Criminals should be encouraged to inform on other criminals.  Honour among thieves should be discouraged.  Indeed, dishonour and betrayal among thieves should be encouraged.

11.  The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor.  A discount to the sentence which would otherwise have been imposed is usually given for such assistance.  This is a common approach in many jurisdictions.  Its object is to provide an incentive for offenders to co-operate with the authorities.  It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like.  It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved.  But this is considered justified in the overall public interest.  The courts’ approach in this regard is a pragmatic one.”

43.Li CJ also provided guidance on how to assess the assistance provided.  At paragraph 13 he said:

“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.”

44.Li CJ then went on to refer to the discounts approved by the Court of Appeal.  He said at paragraph 23:

23.  The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one-third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at p.340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat Fan (unrep., CACC No 414 of 1999, [2001] HKEC 662). Where the level of co-operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two-thirds has been used. R v Chan Fu Kui [1986] HKLR 967 at p.968, HKSAR v Ng Shek Yu (at p.3).”

45.Apart from the milestone discounts of 40%, 50% and 66.6% referred to by Li CJ, an analysis of the authorities would suggest that the courts have granted sentencing discounts within the following discount ranges of 33.3% - 40%; 40% - 50% and 50% - 66.6%.

46.The 50% - 66.6% discount range is not relevant to the present applicant.  It is the subject of detailed discussion in HKSAR v Cheung Chi Yuen[9] and so we shall say nothing further on it in this judgment.

47.The problematic discount ranges are the 33.3% - 40% range and the 40% - 50% range.  Both are relevant to this applicant and so we shall discuss each in turn.

The 33.3% - 40% discount range

48.This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities, his assistance has been helpful but, for one reason or another, it is not assessed to be of particularly great value.  One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery. 

49.This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason.  The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful.  Notwithstanding that the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.

50.There is no single uniform discount for participation in a controlled delivery operation and each defendant’s assistance will fall to be assessed by the sentencing judge. This was made clear by Macrae JA, as Macrae VP then was, in giving the judgment of the Court of Appeal in HKSAR v Nkwo Nnaemeka Darlington[10], where the practice of applying a uniform 40% discount was deprecated.  At paragraph 33 of that judgment Macrae JA set out the factors that are relevant to a sentencing judge’s assessment of the value of the defendant’s assistance.  He said:

“… Such factors would include: (i) the nature and effect of any voluntary participation; (ii) the outcome of the assistance: was it successful in bringing to justice persons who would not otherwise have been brought to justice?; (iii) the degree or extent of assistance which had been provided; and (iv) the degree of risk to which the defendant had exposed himself or his family. It is a matter within the discretion of judges how these, and other possible, factors affect the discount to be accorded a defendant in a particular case. …”

51.Although we would not wish to inhibit judges in their assessment of this form of assistance it must always be borne in mind that it is both limited and unfruitful in nature.  Precisely because it possesses these features, there would need to be something quite exceptional about it to justify awarding a defendant a discount as much as 40%.  As was made clear in Darlington 40% is certainly not the norm for this form of assistance; rather, we would suggest, it should be seen as very much the high water mark for it.

52.We should emphasise that it is the responsibility of the defendant’s counsel to place before the judge all the information needed to enable the judge to make an assessment of the assistance in accordance with the guidance provided by Macrae JA in Darlington.  If the applicant has had to make a number of calls to suspicious accomplices in stressful circumstances or to remain exposed, isolated and vulnerable in a location whilst waiting for accomplices to appear, these must all be communicated to the judge.  Full instructions should be taken from the defendant and, if thought desirable, cross-checked with whatever materials might be possessed by the law enforcement agency.  We cannot emphasise enough that the judge’s assessment depends on what the judge is told by the defendant’s counsel who is under a professional obligation to do all that he can to advance his client’s interests.  The less the judge is told the harder it will be for the judge to make an accurate and fair assessment.  Counsel must be in possession of all the facts and be in a position to assist the judge in any queries the judge may have.

The 40% - 50% discount range

53.This range includes acts of assistance that do not involve testifying for the prosecution.  The defendant may not end up testifying for the prosecution either because he elects not to do so or because, due to circumstances beyond his control, there is no need or opportunity for him to do so.  Thus, it encompasses cases where the nature and extent of the assistance rendered by a defendant acting only as an informant, with no risk of harm to himself, are considerable.[11] But there is also a category of cases commonly encountered in this range that is relevant to this applicant and it is where a defendant agrees to testify for the prosecution but is prevented from fulfilling his promise because the offender pleaded guilty.

54.The principle on which this latter category of case is based can, we think, be found in a statement by Macdougall JA, in giving the judgment of the Court of Appeal in R v Tam Yiu Chung[12].  In this case the Court of Appeal was dealing with an applicant who had given valuable assistance to the police in respect of an accomplice who had subsequently been murdered outside of the jurisdiction.  Macdougall JA said:

“14. Having said that, we entirely agree that the intervention of some supervening event over which the offender has no control, such as the death of the person in respect of whom he had given reliable and useful information or had made a genuine undertaking to give evidence for the prosecution in a pending trial, should not prejudice his claim to a discount in sentence.”

55.We see no reason why this principle should not apply to the situation where the person implicated by the cooperating defendant decides to plead guilty, especially where that decision is influenced by the knowledge that the cooperating defendant is willing to testify for the prosecution.  What is important is that there is a supervening event, not its nature, and it should not matter whether the supervening event is the death of the offender, his absconding from the jurisdiction or his decision to plead guilty.  The question then becomes what discount is appropriate for this situation.  

56.In R v Yan Im Kun Bokhary JA in giving the judgment of the Court of Appeal said in respect of an applicant who had offered to testify for the prosecution but had not done so as the co-accuseds all pleaded guilty:

“ The present case, however, is not a normal case. By the time the judge came to sentence this applicant, there was no longer any occasion for him to give evidence for the prosecution. But there was no reason at all to suppose that he would not have fulfilled his promise if the occasion had presented itself. What is more, it would seem likely that his offer had a lot to do with the decisions of his co-accused to plead guilty. Where there is more than one accused, that each of them should have an incentive to be the first to plead guilty and offer to give evidence against the other or others is a very good thing. Whatever may be said about the rat race, the courts should give criminals every incentive to enter a race to rat, so to speak.”[13]

57.The court reduced the applicant’s sentence from 6 years’ imprisonment to 5 years’ imprisonment.  As the 6 years sentence was imposed after granting the applicant a one-third reduction for his plea of guilty the starting point must have been 9 years’ imprisonment.  By reducing the sentence to 5 years’ imprisonment the Court of Appeal awarded the applicant a 44.4% discount from the sentencing starting point.    

58.This category of case was also the subject of comment by Stuart-Moore VP, in giving the judgment of the Court of Appeal in HKSAR v Ng Shek Yu[14]. In this case the trial judge awarded the applicant a 40% discount from a starting point of 6 years’ imprisonment and sentenced him to 43 months’ imprisonment.  The applicant was prepared to testify against his co-conspirator but that person absconded before trial and so the applicant was prevented from fulfilling his promise.  Stuart-Moore VP said of the applicant’s situation:

“ … The question to be answered, however, is whether a discount of 40% for a defendant who was not a supergrass and who had provided assistance to the authorities without giving evidence against other offenders is appropriate. We have no doubt that it was appropriate. We have on previous occasions stated that in similar circumstances to those which happen to prevail in the present case, a discount of between 40 to 45% will usually be appropriate. These grounds fail.” (Emphasis added.)

59.Whilst in prison the applicant, Ng Shek Yu, was offered $50,000 not to testify but instead of acceding to this request he reported the offer of the bribe to the ICAC and the person who offered it subsequently pleaded guilty to doing an act tending and intended to pervert the course of justice.  The Court of Appeal awarded the applicant a discount of 45% and reduced his sentence to 3 years and 3 months’ imprisonment.

60.More recently, in HKSAR v Tso Kin Hong & Anor[15] the Court of Appeal gave a 50% discount to defendants who had given statements implicating the ringleader of their robbery gang and had agreed to testify against him.  However, the ringleader subsequently pleaded guilty.  The cooperating defendants made a similar promise in respect of another member of the gang but that person also subsequently pleaded guilty.  Noting that both applicants had exposed themselves to the risk of harm by their cooperation and had to be transferred to the security section of Siu Lam Security Centre for their own protection, the Court of Appeal awarded them a 50% discount from the starting point of their sentences. 

61.In HKSAR v Yau Kwok Yin[16] a defendant who was a key prosecution witness against the mastermind of a cross-border drug trafficking operation was denied the opportunity to testify against him when he pleaded guilty.  The Court of Appeal awarded the defendant a discount of 45% of the starting point of his sentence. 

62.Most recently the Court of Appeal addressed this very issue in the case of HKSAR v Cheng Weiguang[17]. In giving the judgment of the court Yeung VP said at paragraph 15:

“ In our view, if an offender who pleads guilty and also assists the law enforcement authority, including providing useful crime information and being willing to testify in court, for the purpose of bringing other offenders to justice, is not required to testify in court eventually because of certain reasons and hence does not need to face the hardship in giving evidence in court, then he should be given a discount of 40% to 45% in sentence. Within such range, the judge dealing with the case has the discretion to give an appropriate discount in sentence as he thinks fit depending on the circumstances of individual cases.”

63.However, in HKSAR v Herrera Jhorman[18] a discount of 40.5% (21 years’ imprisonment reduced to 12½ years) imposed by the trial judge was said to be “entirely appropriate” for a defendant who would have testified for the prosecution had the person implicated by him not pleaded guilty.  The lower discount appears to have flowed from the Court of Appeal’s assessment of the value of the applicant’s assistance rather than from the application of any particular sentencing principle in contradiction to the principle applied in the other cases to which we have referred. 

64.From our analysis of the authorities we are satisfied that within the 40%-50% discount range there is a category of cases relating to a defendant who has offered to testify for the prosecution but whose offer has not been taken up because of some supervening event beyond the defendant’s control.  The existence of such a category not only ensures fairness and justice in the sentencing process, it also provides support to the underlying policy of the courts by encouraging cooperating defendants to become more than just an informant.  After all, convictions are obtained through evidence, not information, and not too infrequently the cooperating defendant will be the only source of that evidence.

65.We are satisfied that the present applicant is entitled to a discount greater than 40%.  There is no doubt that it was entirely due to her assistance that D2 was apprehended and 1.94 kilogrammes of Ice was prevented from entering Hong Kong.  Because the applicant and the Customs officers acted so quickly D2 was caught ‘red-handed’ and because he was caught ‘red-handed’ he pleaded guilty.  In order to obtain the benefit of the full one-third discount he had to plead guilty in the magistracy and this occurred before the prosecution or the applicant’s counsel had explored the possibility of the applicant becoming a prosecution witness.

66.For the reasons stated earlier in this judgment we accept that had she been asked the applicant would have agreed to testify for the prosecution against D2.

67.The value of the applicant’s assistance is considerable and the benefit to Hong Kong in not having almost 2 kilogrammes of Ice enter into distribution here cannot be underestimated.  Having regard to the totality of the applicant’s assistance, and without compartmentalizing each piece of it but assessing it in the round, we are of the view that the appropriate discount for this applicant is around 43.5%.  We set aside the sentence of the judge and sentence the applicant to 13 years and 4 months’ imprisonment.  

Conclusion

68.For these reasons we allow the application, set aside the sentence of the judge and in its place impose on the applicant a sentence of 13 years and 4 months’ imprisonment. 

Mr Andy Lo PP, of Department of Justice, for the respondent

Mr HY Wong, instructed by Chong & Yen, assigned by the DLA, for the applicant