Case Document

100%Judiciary

[English Translation - 英譯本]

CACC 248/2017

[2018] HKCA 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 2017

(ON APPEAL FROM HCCC NO. 416 OF 2014)

___________________

BETWEEN
	HKSAR	Respondent
	and
	CHAN YUEN HOI（陳遠凱）	Applicant

___________________

Before:

Hon Poon and D Pang JJA in Court

Date of Hearing:	14 September 2018
Date of Judgment:	4 October 2018

JUDGMENT

Hon D Pang JA (giving the Judgment of the Court):

1.The applicant pleaded guilty to trafficking in a dangerous drug, namely ‘ice’ of a net narcotic weight of 17.44 kilograms, and was sentenced to 18 years and 8 months’ imprisonment by the trial judge (Andrew Chan J). The applicant sought leave to appeal against sentence out of time.

Brief facts

2.On 4 April 2014, with a search warrant, the police entered the flat rented by the applicant and found the dangerous drug in question inside a pair of speakers located in the living room. Under caution, the applicant admitted that he had rented the flat concerned for “Ah Ho” (transliteration) and had stored the said batch of dangerous drug for “Ah Ho” for a reward of $100,000.

Personal background

3.The applicant was aged 26 at the time of the offence. He received education up to secondary 3 level on the mainland. He had been working all along since he entered the workforce at the age of 18. He had a clear record. His family consisted of his mother and several half siblings only.

Before and after sentencing

4.On 18 and 19 June 2014, i.e. about two and a half months after his arrest, the applicant gave two non-prejudicial statements to the police. Based upon the said two statements, the police arrested Poon (transliteration), another person involved in the present case, who remained silent under caution.

5.On 10 March 2015, the applicant identified Poon in the identification parade arranged by the police.

6.On 17 March 2015, the applicant pleaded guilty and was sentenced in the present case. Since the applicant wished to seek a reduction in sentence only after testifying against Poon, the trial judge gave the applicant the normal discount for a guilty plea and reduced his sentence by one third to 18 years and 8 months (the starting point being 28 years).

7.On 6 July 2016, the case in which Poon was charged with “conspiracy to traffic in a dangerous drug” went to trial. The applicant turned prosecution witness and gave evidence that Poon was in fact “Ah Ho” in that case.

8.The applicant’s testimony in that case was consistent with his aforesaid two non-prejudicial statements. However, as the applicant only disclosed under cross-examination that Poon’s elder brother had once arranged for him to go to Brazil to engage in illicit trade, the judge considered it was necessary to discharge the jury and order a retrial.

9.On 30 September 2016, while awaiting retrial, the police interviewed the applicant about matters in relation to Poon’s elder brother. However, the applicant refused to provide further information about the journey to Brazil.

10.On 25 July 2017, the retrial of Poon’s case commenced. The applicant once again became a prosecution witness testifying against Poon. In the end, the jury unanimously found Poon guilty of “conspiracy to traffic in a dangerous drug”.

11.On 3 August 2017, Poon was sentenced to 30 years’ imprisonment.

12.On 11 August 2017, the applicant filed an application for leave to appeal against sentence out of time with this court.

Grounds of Appeal

13.Ms Wong, counsel for the applicant, pointed out in the Perfected Grounds of Appeal she settled that:

(1)   The applicant gave non-prejudicial statements to the police, which led to Poon being brought to justice.

(2)   The applicant identified Poon in an identification parade.

(3)   The applicant twice testified for the prosecution, which resulted in the conviction of Poon.

14.Ms Wong emphasized in her written submission and oral supplementary submission that:

(1)  In order to provide proof of Poon’s guilt, the applicant readily surrendered to the police his mobile phone, which was costly but contained the relevant information, as well as the $50,000 reward he received for drug trafficking.

(2)   The applicant’s elder sister had also furnished the police with (a) written record containing her personal particulars. She was even listed as a prosecution witness in Poon’s case. She did not appear in court eventually simply because her statement was not disputed. However, since her personal particulars had been disclosed to the defence counsel for Poon, that posed a threat to her.

(3)   After Poon’s arrest, the applicant had on a number of occasions received slips of paper as well as messages conveyed directly to him by inmates with a triad background, indicating that someone wished him not to testify against Poon. Such messages contained both elements of inducement and intimidation.

(4)   The applicant was terrified and worried about the safety of himself and his family. Thus he made a request for a transfer from the prison he was in to another place for detention, which was in the end supported and approved by the police and the Department of Justice. This was sufficient to prove that the threats he and his family had been subjected to were real.

(5)   The police had also advised the applicant’s family against visiting the applicant for the moment. Out of fear, the applicant’s family immediately applied to transfer from their flat to other public housing (elsewhere).

(6)   The applicant’s testimony was the only evidence against Poon. However, the applicant was required to give evidence in court twice and the pressure and threats involved were greater than those under normal circumstances.

Analysis and discussion

15.As the applicant was successful in testifying against Poon, he should be entitled to a discount (including the discount for the guilty plea) of at least 50%, which is beyond doubt: Z v HKSAR (2007) 10 HKCFAR 183. (The issue) before this court is whether it is justifiable for the court to give him more, even up to two thirds, discount (including the discount for the guilty plea) on sentence.

16.A discount (including the discount for the guilty plea) of two thirds is only applicable in cases involving those who are commonly known as “supergrasses”. As to how to categorize a certain witness as a “supergrass”, the Court of Appeal, in HKSAR v Cheung Chi Yuen [2018] 2 HKLRD 1396, conducted a relatively systematic analysis of past authorities.

17.According to HKSAR v Chan Sik Wai (and Another) CACC134/1999 (16 December 1999, unreported), whichMcWalters JA cited in the said case, the assistance given by witnesses of this kind to the authorities must be significant and normally relate to multiple crimes of great gravity rather than giving testimony against his co-accused(s) in a case in which he himself was a party to the crime or crimes[1].

18.McWalters JA also noted that the problem regarding the personal safety of an individual and his family is commonly encountered as a feature of a person becoming a “supergrass” but this is not a prerequisite[2]. On the other hand, the personal safety of the individual and his family being at risk may not necessarily change a normal accomplice turned prosecution witness into a “supergrass”[3]. In any event, the effect on personal safety as a result of assisting the authorities is a factor in receiving an extra discount. As the case may be, for instance, the greater the risk of revenge, and the more serious the potential harm to which the defendant is exposed, the greater the extra discount he will receive[4].

19.In light of the two major considerations stated above, it was obvious that the applicant was not a “supergrass” referred to in the authorities. He was only an accomplice turned prosecution witness who was determined to testify against his co-accused.

20.As regards the applicant’s claim that he himself had been harassed, this court and Ms Wong had thoroughly analysed during the hearing the three “chits” submitted by the applicant[5]. This court is of the view that there was indeed someone who wished the applicant not to give evidence and hinted as well that money would be given in exchange for the applicant remaining silent. However, the contents of the chits failed to show someone had threatened to harm the applicant and his family.

21.According to the explanation advanced by Ms Wong, the threats to the personal safety by the other party were implied in the choice of words and phrases in the chits. However, the applicant had never filed any affirmation/affidavit with this court to illustrate that. On the contrary, the applicant and his elder sister’s assertions that they were worried about the safety of themselves and their family were recounted by a solicitor by way of an affirmation/affidavit, the contents of which were vague and general.

22.For instance, it was briefly mentioned in the affirmation/affidavit that some inmates had asked the applicant at the material time where his family members were and when they would come to visit him. However, as these inmates and the inmates who conveyed the messages and with a triad background were described separately, this court could not rule out the possibility that those were casual chats with no ill intent at all. Similarly, the applicant’s family members claimed that they had applied for a transfer out of the flat in which they had been residing due to their concerns but the affirmation/affidavit failed to state that they had been subjected to any actual intimidation. In fact, Ms Wong confirmed, in response to question(s) asked by this court, that the applicant’s family had been living in situ, and had never been harassed by anyone to date.

23.The Department of Justice, in a pre-emptive move, transferred the applicant from the prison he was in for detention, and/or advised his family against visiting him for the moment, so as not to affect the applicant’s determination to give evidence; they were matters within reason. Such advice and arrangement were insufficient to prove that the police and the Department of Justice believed that the safety of the applicant and his family had been put at risk. What they could be sure about was that there was someone who wished to use money in exchange for the applicant not giving evidence.

24.Finally, the applicant was required to give evidence in court twice, for which the Department of Justice could not be blamed. He refused to disclose to the police the circumstances surrounding the crime committed by Poon’s elder brother. Neither did (his assistance) lead to more people being brought to justice.

25.For the reasons above, we consider that the applicant should only be entitled to a discount (including the discount for the guilty plea) of 50%. Therefore, the actual term of imprisonment he should receive is 14 years.

Judgment

26.We grant the applicant leave to appeal against sentence out of time, allow the appeal, set aside the original sentence of 18 years and 8 months’ imprisonment and in its place impose a sentence of 14 years’ imprisonment.