HKSAR v. Yam Wei Gian

CACC 161/2017

[2019] HKCA 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 161 OF 2017

(ON APPEAL FROM HCCC NO 46 OF 2017)

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J U D G M E N T

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Introduction

1.On 13 February 2017, the applicant pleaded guilty in the Magistrate’s Court to a single count of trafficking in a dangerous drug, namely 1.94 kilogrammes of a crystallised solid containing 1.85 kilogrammes of methamphetamine hydrochloride, commonly known as Ice, and was committed to the Court of First Instance for sentence.  On 10 May 2017, he was sentenced to 15 years and 8 months’ imprisonment.

2.The applicant initially applied for leave to appeal against his conviction on 29 May 2017, but later abandoned his application on 29 March 2018, having applied in the meantime for leave to appeal against his sentence out of time on 10 July 2017.  He is essentially seeking to rely on assistance that he has rendered to the authorities for a reduction to his sentence.

The brief facts

3.On 8 August 2016, the applicant was intercepted by police at the Cheung Hang Estate, Tsing Yi.  The police searched the applicant and found inside a black recycle bag that he was carrying two packets of the Ice in question.  After he was arrested and cautioned, he said that he was helping someone to take the drugs to the estate for a reward of $10,000. He also had in his possession 3 mobile telephones and a little over $7,000 cash.  In a subsequent video-recorded interview, he said that he met an unknown male at Fanling MTR station who asked if he wanted to make quick money in the sum of $10,000 by delivering Ice.  He agreed and was given the drugs to deliver to the Cheung Hang Estate.  He took a taxi from Fanling MTR station to the estate when he was arrested by the police. 

4.The applicant claimed that the money found in his possession was his salary as a casual worker at a fast food shop even though he was jobless at the time. 

The sentencing proceedings

5.On 12 April 2017, the applicant appeared before D’Almanda Remedios J (the judge), and Mr James McGowan, who was representing him, requested an adjournment so that the applicant could provide information to the police.  The sentencing of the applicant was adjourned to 10 May 2017. 

6.During the adjourned period, the applicant provided two non-prejudicial statements to the police.  The first was made on 27 April 2017 and was very short.  He gave the name of a woman, her address and telephone number whom he said was responsible for his involvement in the delivery of the drugs.  She will be referred to as Ms X.  His next statement was made on 2 May 2017, in which he provided further information about Ms X, including her Hong Kong Identity Card number.

7.As noted by the judge, the offence took place in August 2016, but it was only when he was being sentenced many months later, that he volunteered to assist the authorities.  She further noted that previously in his video-recorded interview, he identified the person behind his offence as an unknown male and it was not until his sentencing that he said it was Ms X. 

8.Mr McGowan requested the judge to adjourn sentencing as further inquiries were required in relation to the information the applicant had provided.  He also noted that this would enable the legal representatives assigned by Legal Aid Department to continue to act for the applicant as long as his sentencing was still outstanding, otherwise legal aid would not be granted in relation to an applicant’s assistance to the authorities.  The judge refused to adjourn the proceedings as there was no clear indication as to how long it would take to assess the information provided by the applicant.

9.The judge in her sentencing remarks noted that the applicant had 18 previous convictions on 13 previous occasions, mainly for drug related offences.  She adopted a starting point of 23 years and 6 months’ imprisonment in accordance with the sentencing guidelines, which she reduced by one third for the applicant’s guilty plea to 15 years and 8 months’ imprisonment.  The judge noted in her reasons that there may be other matters which may arise in the future, warranting a reduction to the applicant’s sentence, but at that stage could not be properly assessed. 

The appeal proceedings

10.As already mentioned, on 29 May 2017, the applicant filed an application for leave to appeal against conviction.  He stated he had a recording between himself and a witness, whom he claimed he contacted, who could give favourable evidence in his case.  It was unclear as to how this would assist him in his application to overturn his conviction.

11.Several months later on 10 July 2017, the applicant filed an application for leave to appeal against sentence and an extension of time to file a notice, complaining that his sentence was excessive.  In an accompanying affirmation dated 7 July 2017, he said that the filing of the application was delayed because he was unfamiliar with the law and had previously applied for a re-trial which he was withdrawing and instead was seeking leave to appeal against his sentence.  As disclosed by his previous convictions, it can hardly be said that the applicant is unfamiliar with the law and its legal processes.  It is therefore difficult to accept his explanation for the delay.

12.A little over a month later, on 25 August 2017, the application made a third non-prejudicial statement to the police in which he provided further information about Ms X. 

13.On 28 August 2017, the applicant was refused legal aid to appeal his conviction but granted legal aid to appeal his sentence out of time.  Mr Simon Cleves, of Messrs Krishnan & Tsang, and Mr James McGowan, of counsel, were assigned to represent the applicant.  Despite numerous requests for the filing of perfected grounds of appeal, it was not until 18 April 2018, that a ground was filed, in which it was complained that Ms X had not been prosecuted and therefore the applicant had been denied a further discount to his sentence.

14.It was not until 29 March 2018, that the applicant filed a Notice of Abandonment in respect of his application for leave to appeal against his conviction. 

15.It should be noted that there had been a series of directions issued by the Court requesting perfected grounds of appeal and written submissions that have dragged on for a period of nearly 2 years.  After further directions from the Court, the applicant filed his written submissions on 22 March 2019 and an affirmation on 28 March 2019. The respondent was granted an extension to file its written submissions and affirmation in response because of the matters raised by the applicant in his affirmation.

The assistance to the police

16.The applicant claims that Ms X had been arrested by the police and as part of a deal with the police, she set him up.  He complains that it was not fair that the person who was responsible for his involvement in the offence has not been prosecuted for her part. 

17.The applicant also claims that following his arrest in August 2016, whilst he was in Tsing Yi police station, he provided information to a police officer about a drug supplier whom he named.  He gave a Cantonese name of the person, but later in papers filed with the Court, he identified him by a Mandarin name.  He will be referred to as Mr Y.  He said that he found out that Mr Y was later arrested and convicted for drug trafficking and requested that he should be given credit for the information he provided.  He came to know of this person’s incarceration because he saw him in prison.

18.He also claims that because of the mishandling of the case involving Ms X by the police, he filed complaints with both CAPO and IPCC in June 2017.

19.It is to be noted that initially the applicant said the person who arranged for him to deliver the drugs was a male, and not a female as he now claims.  Furthermore, it was not until about 9 months after the offence that he claimed that Ms X was responsible for him delivering the drugs.

20.Mr McGowan’s submission on behalf of the applicant is that the applicant should be given credit, in accordance with HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, for the intelligence that he has provided which was useful information.

The rejection of the assistance

21.The respondent strongly rejects the applicant’s allegations and questions the veracity of certain claims that he has made in his affirmation and in the written submissions on his behalf. Two police officers have filed affirmations refuting his criticisms of the police and claims of assistance to them.  Senior Inspector Lau Hon Kwan in his affirmation dated 2 May 2019, addressed the applicant’s assistance in the case involving Mr Y.  Senior Inspector Kwan Nga Man in his affirmation dated 9 May 2019, addressed the applicant’s assistance in the case involving Ms X.

22.The applicant claims that he provided information to the police of the involvement in his case of Ms X.  As already noted, this information was provided well after the events of the offence to which he admitted his guilt.  The applicant complains that the police failed to act or follow up on information that he provided, but as has been submitted by the respondent, the police completed its investigation and on legal advice from the Department of Justice, no further action was taken against Ms X.  The applicant was duly informed of the outcome of Ms X’s case. 

23.The applicant in his affirmation claimed that he was so aggrieved by the failure of the authorities to prosecute Ms X that he made complaints both with CAPO and the IPCC.  As it turned out, the applicant did not lodge a complaint as he claimed with CAPO, but instead approached CAPO in order to find out about the procedures in handling a prisoner’s request for a reduction in sentence.  When this issue was raised with Mr McGowan at today’s hearing, he said he was not pursuing the matter.

24.The police had determined that the information the applicant provided in relation to Ms X was of no practical use.  In the other case, involving Mr Y (known by a Mandarin name), the police confirmed that the applicant did not provide any information about Mr Y, and the investigation and prosecution of Mr Y was completely unrelated to the applicant.

25.The written submissions of the applicant and the respondent were filed before the handing down of the decision in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.  Neither of the parties had referred to this case, which is an important decision, addressing the approach that should be taken when dealing with disputed assistance.  It was made clear that when an applicant asserts that he has provided assistance to the authorities, it is a matter for the relevant authorities as to whether to submit to a sentencing court information in relation to such assistance. The applicant is bound by what is submitted by the authorities on his or her behalf.  It would only be in exceptional circumstances that it would be open to a sentencing court to deal with such a dispute, and that would generally be limited to where there is an issue of bad faith on the part of the relevant authority or where a clearly different view of the assistance by the relevant authority is apparent from the evidence. 

26.The respondent, in accordance with the procedure and requirements of Yeung Hoi Ting, has filed a certification from a Senior Superintendent of Police dated 7 November 2019, in relation to the reports from the respective police officers in respect of the two cases in which the applicant claims he has rendered assistance to the authorities.  Senior Inspector Lau Hon Kwan in his statement dated 4 November 2019, confirmed that the applicant had not provided any potential assistance or information about Mr Y.  Senior Inspector Kwan Nga Man in his statement dated 30 October 2019, set out in detail the investigation of Ms X, which did not proceed any further as a result of legal advice from the Department of Justice.  It was assessed by the police that the applicant was not considered credible and that his information was unreliable and of no intelligence value.

27.The information provided by the police was a re-confirmation of what had been previously submitted in May 2019, that is that the information provided by the applicant was of no practical use and in various respects had been shown to be inaccurate or unreliable.

28.Both the applicant and the respondent have respectively filed a Notice of Motion to produce affirmations in relation to the disputed assistance.  I have considered the contents of the affirmations on a provisional basis and it is apparent from my judgment that I do not accept that the applicant has rendered assistance to the authorities which has been of practical use. 

Conclusion

29.In all the circumstances, I am not persuaded that the applicant has a reasonably arguable ground of appeal against his sentence for the assistance he claims he had rendered to the authorities, and his application is accordingly refused.

30.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he 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. 

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

Mr James McGowan, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the applicant