HKSAR v. S

[2019] HKCA 1283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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1.On 26 February 2018, following his guilty plea in the Magistrate’s Court to a single offence of trafficking in a dangerous drug, namely 649 grammes of a solid containing 469 grammes of cocaine, the applicant was sentenced by D’Almada Remedios J (the judge) to 11 years’ imprisonment.

2.On 26 March 2018, the applicant filed a notice of application for leave to appeal against sentence.  In his perfected ground of appeal filed on 14 June 2019, the applicant complains that the judge erred in not affording him a discount to his sentence for having provided reliable and truthful information to the police.  In light of the nature of this application, I will be fairly circumspect when discussing certain matters in this judgment.

3.The summary of facts to which the applicant agreed when he pleaded guilty to the offence can be briefly stated as follows. In the early evening on 16 January 2017, police officers observed the applicant walking along a street in the New Territories.  When he reached the entrance of a park he picked up a paper bag next to a rubbish bin.  After checking the contents of the bag he then proceeded to leave.  The police officers sought to apprehend him but he immediately fled when he saw them approaching him, throwing away the paper bag.  He was eventually apprehended by the police officers, who searched him and found in his possession 2 mobile telephones and $600 cash.  The paper bag was retrieved and found inside was a white plastic bag, containing the drugs variously packed in 32 plastic bags.  Whilst he refused to answer any questions asked of him by the police officers at the scene and later in a video recorded interview, he admitted and accepted that he was trafficking in the drugs contained in the white plastic bag.  The value of the drugs at the time of the offence was $589,292.

4.In sentencing the applicant, the judge noted that he was in his 20s, having received an education up to Form 3 level.  He had eight previous convictions, including one for possession of a dangerous drug in 2007 for which he was sentenced to a rehabilitation centre, and one for trafficking in a dangerous drug in 2010 for which he was sentenced to 32 months’ imprisonment.  It was submitted on his behalf that he had been addicted to drugs since he was 16 years of age.

5.It had been mentioned in mitigation by defence counsel that the applicant had given a non-prejudicial statement to the police and was assisting them.  However, he noted that the matter was under investigation by the police and it would be a long time before it was ascertained whether his statement was helpful.  It would seem on that basis the judge did not take this matter into consideration when sentencing the applicant.

6.The judge having noted the applicant’s background and circumstances, adopted a starting point of 16 years and 6 months’ imprisonment in accordance with the tariff case of R v Lau Tak-ming [1990] 2 HKLR 370, which she reduced by one third for the applicant’s guilty plea to 11 years’ imprisonment.  She did not take into account as an aggravating factor the applicant’s previous conviction for trafficking in a dangerous drug because it was committed 7 years ago.

7.The sole ground of appeal is that the judge failed to take into account that the applicant had provided information to the authorities that when properly assessed was “of practical use” to them and would have justified a further discount to his sentence between the range of 33.3% to 40% (incorporating a one third discount for his guilty plea).  See HKSAR v Lo Sze Tung, Stephanie, unreported, CACC 190/2017, 25 July 2018.

8.As already noted, the applicant was sentenced on 26 February 2018.  He provided his first non-prejudicial statement on 23 November 2017, which was some 10 months after the offence.  It would seem that defence counsel took the view that it provided little if any mitigation and did not press the matter before the judge.  In that statement, the applicant provided the name of the alleged accomplice as well as explaining his past association with the alleged accomplice and the involvement of the alleged accomplice in the present offence.  He particularly stated that in March 2017 when he was remanded for the present offence, he met the alleged accomplice in Lai Chi Kok Reception Centre and gave his remand number to the police.  After sentence, the applicant provided his second non-prejudicial statement on 24 April 2018.  In that statement, the applicant provided the mobile telephone number of the alleged accomplice and expressed his willingness to testify against him if so required.

9.A report has been filed with the Court dated 19 August 2019 which has been certified by a senior police officer.  The report sets out the information that had been provided by the applicant to the police and the outcome of their investigation.  It notes that the mobile telephone number that the applicant said belonged to the alleged accomplice was a prepaid Sim card; that the alleged accomplice was not on remand in the Lai Chi Kok Reception Centre in March 2017; and that the alleged accomplice did not have a past history in drugs.  It finally notes that the alleged accomplice could not be located and remains at large, and that the information provided by the applicant could not be verified.  It concludes that the information provided was of little or no assistance to the police.

10.The parties in their written submissions did not refer to the authority of HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516 which sets out the relevant principles and procedure that should be followed when there is a dispute in relation to assistance that has been rendered by a defendant to the authorities.  The actual assistance rendered by the applicant is readily ascertainable by the contents of the non-prejudicial statements, but as to whether the assistance in the form of information has been “of practical use” will in these circumstances depend on the verification and reliability of such information.  The police have determined that the information cannot be verified and seem to question its reliability.  Following the procedure set out in Yeung Hoi Ting, the authorities have determined that the information provided by the applicant is not “of practical use”, and therefore there is no basis to take the matter further at this stage.  Of course, if there is a change of circumstances and the assistance rendered by the applicant is “of practical use” the matter can be raised with the Executive.

11.In light of the foregoing, I am of the view that the ground of appeal against sentence is not reasonably arguable and leave to appeal is therefore refused.

12.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Andy Lo, SPP (Ag), of the Department of Justice, for the respondent

Mr Kwan Tong Lee, instructed by Augustine C Y Tong & Co, assigned by the Director of Legal Aid, for the applicant