HKSAR v. “M”

CACC 327/2019

[2021] HKCA 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 327 OF 2019

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Before:  Hon Zervos JA in Court

Date of Hearing:  19 March 2021

Date of Judgment:  19 March 2021

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J U D G M E N T

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1.On 22 October 2019, following his conviction on his own plea to one count of conspiracy to traffic in a dangerous drug (Count 1) and one count of trafficking in a dangerous drug (Count 2) before Wong J (the judge), the applicant was sentenced to a total of 12 years and 3 months’ imprisonment.

2.The applicant seeks leave to appeal against his sentence on the sole ground that he has rendered assistance to the authorities, which was of practical use, and was therefore entitled to a further discount beyond the one third discount he received for his guilty pleas.

3.The respondent opposes the application on the basis that the assistance rendered by the applicant was not of practical use to the authorities.

4.In the evening of 12 October 2018, the applicant was stopped by police officers when he was entering a flat.  A search of the flat by the police officers recovered 807.50 grammes of ketamine and 5.90 grammes of cocaine as well as other drug paraphernalia.  The applicant was arrested for trafficking in dangerous drugs and cautioned.  He admitted that the drugs belonged to him and that he intended to sell the drugs to others.  In a subsequent video record of interview, he admitted that he had been recruited by a person, who he described by his nickname, (referred to as “X”) to repackage the drugs at the flat and to deliver the drugs to different drivers who would in turn distribute the drugs to buyers.  The applicant stated that he would receive a reward of $1,000 each day for the work he did for “X”.  He claimed he did not know the identity of the owner of the flat or the drivers to whom he would deliver the drugs.  He also admitted that he had conspired together with “X” to traffic in dangerous drugs, namely ketamine and cocaine and at the time of his arrest he was in possession of the drugs seized from the flat for the purpose of trafficking.

5.At the time of sentencing, the applicant was 29 years of age with no previous criminal convictions.  It was submitted on his behalf that he was remorseful and committed the present offence because of financial hardship.  It was noted that his father was suffering from ill health.

6.It was explained that the applicant had provided a non-prejudicial statement to the police but as at the date of sentencing nothing had flowed from the information he had provided. 

7.After reviewing the facts of the case and the background circumstances of the applicant, the judge adopted a starting point of 15 years’ imprisonment for Count 1 and 13½ years’ imprisonment for Count 2, taking into account the aggravating factor of trafficking in a cocktail of drugs.  The judge gave a discount of one third to the applicant for his guilty pleas.  In respect of Count 1, the judge gave an overall discount of 38% because the police would not have uncovered this offence if not for the confession by the applicant.  The judge gave no further discount for the assistance the applicant had rendered to the authorities because at that stage it had not been shown to be of any practical use. 

8.This resulted in the applicant being sentenced to 9 years and 3 months’ imprisonment on Count 1 and 9 years’ imprisonment on Count 2.  After applying the totality principle, the judge ordered that the 3 years on the sentence on Count 2 to run consecutively to the sentence on Count 1, resulting in a total sentence of 12 years and 3 months’ imprisonment.

9.Ms Fiona Nam, counsel for the applicant, very properly makes no complaint of the starting point adopted for each count and the discount given for the applicant’s guilty plea and confession.  She submits that the information provided by the applicant in his non-prejudicial statement was of practical use despite the fact that it did not result in a successful arrest or prosecution. She notes that the applicant’s statement contained information that was of practical use for the purpose of a criminal investigation, or at the very least would provide very useful criminal intelligence.  Her complaint is in essence that the procedure and evaluation of such assistance as laid out in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516 was not followed or applied, and therefore the applicant did not receive a just and fair sentence in the circumstances.

10.Mr Derek Lau, for the respondent, argues that the information provided by the applicant was determined to be of no practical use because he provided the information late, and it was of insufficient detail or otherwise known.  However, it did result in a significant criminal investigation. 

11.Assistance to the authorities entitles a defendant to an additional discount beyond the one third for a timely plea of guilty.  This may take the form of information that has been of practical use.

12.I am satisfied that the ground of appeal is reasonably arguable.  It may be argued that the police and the prosecuting authority have a very restrictive view of what is meant by “of practical use”, despite it having been said that it is not limited to only tangible results. Information that is of practical use may fall into the category of criminal intelligence, that is, information that has the capability of preventing, monitoring or detecting criminal activity.  There is an onerous obligation on law enforcement and the prosecuting authority to ensure that a fair and proper evaluation of the assistance rendered to the authorities has taken place.  As this Court stated in Yeung Hoi Ting:

“83. Ultimately, it will be a matter for the law enforcement agencies, as to how they deal with an offender in relation to the provision of information or assistance, and what, if anything, they are able to disclose to the court. However, it needs to be stressed that law enforcement agencies have a very important role to play in this aspect of the sentencing process and must properly discharge their professional duties and obligations in strict adherence to the relevant principles and procedure. The court has a duty to impose on the defendant a just and fair sentence, and it is therefore in the interests of justice that any material which is relevant to sentence is disclosed to it. This necessarily means that law enforcement agencies should endeavour to assist a court in this regard by providing an assessment of the provision of information or assistance, if and when this issue arises in the sentencing process.

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95. Before setting out the procedure that should be employed when a defendant makes a claim of having assisted the authorities there are two matters that need to be mentioned. The first is how to evaluate the assistance and in this respect we wish to take the opportunity to clarify that the assessment of the information or assistance rendered by a defendant should be evaluated on the basis of whether it is ‘of practical use’. It should not be limited to whether it leads to ‘a tangible result’, such as a successful arrest or prosecution, for as acknowledged by both Macrae V-P[1] and McWalters JA,[2] in their respective judgments in HKSAR v Kilima, this test is far too restrictive in the context of criminal intelligence or investigation. As explained by Macrae V-P, whether a discount in sentence should be awarded for information or assistance given by defendant to the authorities depended on whether the assistance was ‘of practical use’ and that such term clearly encompassed the type of information which ‘could potentially assist or had actually assisted the authorities’, as described by the Court of Final Appeal in Z v HKSAR.[3]

96. In future, we expect that law enforcement agencies will assess any information or assistance rendered by a defendant on the basis of whether it is ‘of practical use’, and not restrict such assessment to whether it led to ‘a tangible result’.

97. The second matter is to emphasise the importance of the role of the prosecutor. In HKSAR v Kilima, McWalters JA noted two matters that he considered should significantly reduce the risk of a dispute by a defendant of the assessment by the authority of the assistance he had provided. The first is the fact that an essential element of the Sivan procedure is that the assessment of the investigation officer is separately examined by a more senior officer independent of the investigation. He considered that the involvement of the senior officer is ‘a significant factor which lends credibility of the assessment of the law enforcement agency of the value of the assistance provided by the defendant’.[4] The second is that prosecuting counsel assumes responsibility for the view taken by the law enforcement agency and therefore would ensure that the information submitted can be appropriately relied upon by the court.[5]

Mr Derek Lau, SPP of the Department of Justice, for the respondent

Ms Fiona Nam, instructed by Edward Lau Phoebe Ng Solicitors LLP, assigned by the Director of Legal Aid, for the applicant