HKSAR v. Kwong Hung Kwong and Others

DCCC 908/2020

[2021] HKDC 789

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 908 OF 2020

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REASONS FOR SENTENCE

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1.There are three defendants in this case, D1, D2, and D3. There are jointly charged with one count of conspiracy to blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Chapter 210 and section 159A of the Crimes Ordinance, Chapter 200. They all pleaded guilty to the charge and admitted the relevant facts and were convicted accordingly.

The facts

2.PW1 is a business tycoon in Hong Kong and his wife, Y, is a celebrity.  On 10 and 11 January 2020, PW1 received a total of three phone calls from an unknown number but PW1 did not pick up.  Later on 11January, PW1 received a photo on WhatsApp depicting the naked back of his wife inside their home.  He also received a message saying that the sender had the full video, that PW1 should contact him if he wished to buy it back, or otherwise he would sell it to someone at a high price two days later.  PW1 was worried but decided not to reply. 

3.On 12 January 2020, PW1 received a phone call from the same number.  The male on the phone, later known to be D1, asked him whether he had received the photos and whether he wanted the photos back.  PW1 said he would call him back and hung up.  He then reported the case to the police. 

4.In the next few days, D1 sent two more messages to PW1 and called him once asking him when he would buy the photos.  PW1 told him that he was busy and that he should contact his assistant, Mr Chan.  Then there was the first round of negotiations between D1 on the one side and PW2 on PW1’s behalf on the other side.  DSIP Yip Kim-pang, PW2, was deployed as a decoy and was guised as PW1’s personal assistant, Mr Chan.  This first round of negotiations took place between 14 January and 1 April 2020. 

5.On 14 January 2020, D1 called PW2 and said that he was in possession of a video of PW1’s wife, some photos that were not appropriate for dissemination and asked PW2 how much they would pay.  PW2 asked him to state his offer but D1 said he would call him back as he was only the middle person. 

6.On 15 January 2020, D1 sent an image file to PW1 via WhatsApp containing the following words.  “Is the person you sent trying to help you or harm you? He is talking about a deal of only thousands of dollars.  I spent tens of thousands just to get your telephone number.  If you do not handle this well, your reputation will be damaged and your family members will worry.  With your status, offer a good price and trust that I will help you settle the matter.  I will only talk to you from now on as other people will only complicate the matter.  Think about the consequences.  WhatsApp me after consideration.” 

7.Later on the same day, PW2 sent a message to D1 saying that PW1 had asked him to contact D1 and said that money was not a problem.  Two hours later, D1 sent a message to PW1 with the words “100 million” and sent PW1 a 24-second video clip showing Y changing out of a dress and walking away in only her underpants.  Her naked upper body was exposed for about two seconds before she covered her breasts with her hands.  Around 10 minutes later, D1 called PW2 saying that he wanted HK$100 million, which he was going to split with a few persons, and asked when the money could be arranged. 

8.On 16 January 2020, D1 called PW2 and said that he would save the video onto an encrypted USB and mail it to PW2 or place it inside a locker but PW2 insisted on trading face‑to‑face.  D1 also requested old banknotes as he did not want to alert the bank. 

9.In the following few days, D1 sent an image file to PW1 with words saying that he was an older generation of gangster with loyalty, that he received money for solving other’s problems and that he would not betray the video owner who trusted him. 

10.D1 also sent two photos to both PW1 and PW2.  The first photo depicted an encrypted USB and the second photo depicted a mobile phone displaying the message,  “The USB drive provided is a high-end one, requiring an eight-digit passcode for access.  Entry of a wrong passcode would lead to automatic deletion of the data inside.  Your proposal is not safe for us.  It is the norm that the buyer pays first before getting the goods in order to protect our safety.  After the trade is complete, we will send you the materials.  The passcode will be sent to you on WhatsApp.” 

11.Between 20 January and 12 February 2020, PW2 had multiple telephone conversations with D1 discussing the arrangements for the deal.  D1 refused to trade face‑to‑face as it was hard for him to leave with the money.  He suggested that he place the USB somewhere and PW2 was to leave the money inside a car for him after inspecting the contents of the USB. 

12.PW2 insisted on a face-to-face trade but D1 said that his partners were worried about the arrangement.  D1 also suggested finding a lawyer to draft a confidentiality agreement as proposed by his partner but PW2 rejected. Finally, D1 agreed to meet with PW2 face‑to‑face and proposed that PW2 pick him up somewhere in a car after which they would drive somewhere to inspect the video and complete the deal.  They agreed to confirm the details of the trade on 10 February 2020 but PW2 failed to reach D1 since then. 

13.Then there was a second round of negotiations from 11 to 31 March 2020 when D2 also participated.  On 11 March 2020, D2, using a different phone number, 64190130, called PW1 blaming him for complicating the matter by involving PW2 and chasing him to pay for the photos.  PW1 claimed to be busy and hung up. 

14.D2 then called PW2 on the same day and blamed him for causing trouble. PW2 disagreed and explained that he had already reached an agreement with D1. D2 repeated that someone would give the materials to PW2 and give him the passcode after receipt of the money and that his partner would call PW2 the day after. 

15.On the next day, D1 appeared again by calling PW2 with a different phone number, 61407454.  D1 blamed PW2 for sending people to follow him and his partner called PW1 the day before as he was impatient. 

16.Between 16 and 31 March 2020, PW2 had multiple telephone conversations with D1.  D1 asked PW2 to pay him cash of HK$50 million and deposit the rest into a commercial bank account, PW2 refused.  D1 then suggested that they paid half of it in cash and the other half by post-dated cheques of HK$20 million and HK$30 million respectively.  He would find PW2 half a year later to exchange the cheques for cash.  PW2 agreed.  D1 also asked for an authorisation letter for keeping the money so that he would have an explanation when necessary.  PW2 also agreed. 

17.Finally, D1 agreed to meet PW2 face to face at Star Ferry Car Park, Central, at 8.30 am on 1 April 2020.  He would pass the USB drive to PW2 and would also send the passcode to PW1.  PW2 would give him the cash and cheques after inspecting the contents of the USB drive.  D1 said that his partner would drive him nearby and he would walk over.  His partner would wait for him nearby and pick him up after the trade.  D1 told PW2 to divide the cash into 10 portions but PW2 said that he had already put the money in three suitcases. 

18.At 8.15 am on 1 April 2020, PW2 drove a private car to the top floor of the Star Ferry Car Park in Central and called D1.  At 8.30 am, D1 arrived and met up with PW2 at the car park.  D1 then took out an encrypted USB drive and plugged it into PW2’s laptop.  He also gave PW2 the passcode to the USB.  PW2 unlocked the USB drive using the passcode and inspected the contents of the USB drive.  D1 also said that he had forgotten to bring along his GPS tracker detector, which he planned to use to scan the suitcases but he had left it inside his partner’s car. 

19.When D1 was trying to move the suitcases at 8.52 am, PW2 alerted his police colleagues.  D1 was intercepted on the spot and was arrested for conspiracy to blackmail.  Under caution, he admitted that he had gone to the car park alone to meet PW2 for inspection of a video and for picking up the money.  D1 had on him a mobile phone with the SIM card of 6140 7454.  Call records reveal that this SIM card had 13 calls with PW2 between 12 March and 1 April 2020. 

20.Prior to the meet-up, PC22402 noticed a private car, KX 711, parked in Sheung Wan area and saw D1 alighted from the front passenger seat.  The car was searched after D1’s arrest and a GPS tracker detector was found on the front passenger seat. 

21.At 9.10 am on the same day, that is 1 April 2020, D2 was arrested for conspiracy to blackmail at his home in Kwai Chung Estate.  Under caution, he admitted that D3 has given him the video and he had asked D1 to find PW1 to purchase the video and that he would receive a share of HK$20 million once the job was done. 

22.One of the mobile phones seized at D2’s home contained an SMS message on 11 March 2020 for the activation of the SIM card for the number 64190130, which was the number used to call PW1 and PW2 on 11 March 2020.  Multiple WhatsApp messages with the number 69028055 later known to belong to D1 between 23 and 31 March 2020 discussing the deal were also found on the same mobile phone. 

23.Later on the same day at 12.55 pm, D3 was also arrested.  Under caution, he admitted that he had given the video to D2, that D2 said that he would use the video to ask the bosses for money and that he was not involved in the planning of the offence.  Further inquiry was conducted with D3 who admitted under caution that he had seen Y getting changed when he was monitoring the CCTV footages a few years ago and took a video with his mobile phone.  He had e-mailed the video to himself and deleted the video off his phone.  He explained that “to ask the bosses for money” meant to have them pay to buy the video back.  D2 said that D2 would give D3 a share of the money once the job was done. 

24.D1 stated under caution in his video-recorded interviews the following:-

(a)  D2, his friend for over 10 years, has given him the USB drive containing the relevant video as well as PW1’s telephone number. He watched the video and discovered that it depicted PW1’s wife who was topless and was changing. He believed that it was from the CCTV of PW1’s home.

(b)  D1 was responsible for contacting PW1 to ask him to buy the video back which he knew was illegal. He started contacting PW1 about two months ago. He was the one who had sent the messages on 17 and 19 January 2020. He had sent PW1 the photo of the encrypted USB drive.

(c)  PW1 had told him over the telephone that he wished to buy the video back and that he should contact his assistant, Mr Chan. D1 then contacted Mr Chan to discuss the details of the trade. The contact save on his seized Samsung phone as “A” was Mr Chan whom he had called several times in March 2020 as shown on his call records. The contact saved under the name of “B” was PW1.

(d)  D2 had suggested that D1 should ask PW1 for HK$90 million. D1 was to get HK$50 million while D2 was to get HK$40 million. It was D1’s idea to raise the sum to HK$100 million.

(e)  He had purchased the USB drive at HK$1,000 and saved the video onto the USB around half a month ago.

(f)  At around 6 am on 1 April 2020, his friend drove him to the pier near IFC. D1 then received PW2’s call and walked over to the top floor of the Star Ferry Car Park for the trade.

25.D2 admitted under caution the following in his video-recorded interviews:-

(a)  He started to know D3 10 years ago when they were working together in the field of security. D3 was working at the CCTV room of PW1’s home at the material time and saw Y getting changed. D3 then took a video out of curiosity and showed it to D2 6 to 7 years ago.

(b)  Around a year ago, D3 told him that he was short of money and asked for ideas. D2 then suggested that they could sell the video clip to PW1.

(c)  D2 then asked D1 whom he had known for 25 years to help handle the matter as it would not be appropriate for D2 or D3 to do it themselves as they had both worked for PW1 before. D3 did not know D1.

(d)  D3 had PW1’s number as he used to work for him. D3 then gave PW1’s number and the video clip to D2 who passed them on to D1 to call PW1 to buy the video clip.

(e)  D2 had told D1 that they should ask for HK$30 million so that D2 and D3 could each receive HK$10 million. He did not know that D1 has asked for HK$100 million.

(f)  They had arrangements to trade before Chinese New Year but D1 cancelled it as he felt that he was being followed. D3 asked D2 whether he had any ideas again in March so D2 called PW1 himself asking if he wanted to buy the video clip. PW1 then asked Mr Chan to contact D1 and they continued their discussions.

(g)  After discussing with D1, D2 had thought about selling the video clip to PW1 through a law firm. D2 had also called PW1 himself and made this suggestion.

(h)  He had used many prepaid SIM cards to contact D1. He had used the mobile phones seized on him to contact D1 and D3. He also had multiple calls and WhatsApp messages with D1 to ask him about the progress.

26.D3 admitted the following under caution in his video‑recorded interview:-

(a)  PW1 was his ex-employer for whom he had worked for 2 to 3 years. D2 was his current colleague whom he had known for over 10 years.

(b)  Several years ago, he was responsible for security in PW1’s home and was reviewing the CCTV footages when he saw PW1’s wife getting changed. He then took a video of it using his mobile phone out of curiosity for his own viewing and sent it to his own e-mail account. He had never sent the video to anyone but had shown it to D2 on his mobile phone.

(c)  In November 2019, D2 asked D3 for the footage so that he could ask PW1 for money. D3 was told that they would get HK$15 million to be shared between them. He then saved the video from his e-mail account onto a USB drive and passed it to D2.

(d)  In December 2019 or January 2020, D2 told him that he would be doing the job within those few days. D2 has occasionally told him that he had not yet received the money and that he would give the money to D3 in cash.

(e)  He did not know about D1’s involvement. D2 had told him about an assistant named Mr Chan. D2 had told him not to care about the details, as D2 would take care of it. He knew nothing about the messages sent to PW1.

The defendants’ background

27.D1 is now aged 57.  He was born in Hong Kong in 1963.  He was educated up to Form 3 level.  He was a delivery worker earning a monthly salary of HK$25,000 at the time of arrest.  He was married but now separated from his wife.  He lives with his adult son in a public housing estate.  He has a clear record. 

28.D2 is now aged 46.  He was born in 1974 in Hong Kong.  He was educated up to Form 3.  He was working as a bodyguard earning a monthly salary of around HK$30,000 at the time of the arrest.  He is married and lives with his wife and two daughters, aged 23 and 16 respectively, in a public housing estate.  He has a clear record. 

29.D3 is now aged 51.  He was born in 1969 in Hong Kong.  He was educated up to Form 5.  He was a security guard earning a monthly salary of around HK$28,000 at the time of the arrest.  He is divorced with a son, aged 20, who is now studying in Canada.  He lives with his parents, both of senior age, in a public housing estate.  He has a clear record. 

Mitigation

D1

30.Mr Kwong for D1 submitted a written mitigation.  It is submitted that D1 pleaded guilty at the first available opportunity and should be given a one-third discount.  He was the front man doing all the dirty work in this case until he was arrested at the car park.  He participated in the crime because he was indebted to an illegal bookmaker and was constantly chased after for repayment.  He took no part in the preparation of the USB containing the footage of the wife of the victim.  The video is brief and it does not show any indecent acts. 

31.D1 is now 58 years old and has a clear record.  He has a steady job as a logistic worker earning HK$21,000 per month.  He has worked for the same employer in excess of 15 years.  He is married with one grown-up son. 

32.There is no sentencing guideline but it is accepted that a gaol term is the only realistic sentencing option.  Although the demand was for a huge sum, no part of it was ever paid and it was a one-off demand. 

33.D1 did not act alone and it was someone else who gave him the USB and the code.  The menace did not involve violence or threats of violence and no triad was involved.  There was no damage to any property.  The video clip was never published to the general public.  The victim did not suffer any loss. 

34.Both the wife and the son spoke favourably for D1 and they submitted mitigation letters to the Court. 

35.Solicitor for D1 submitted the Court of Appeal authority HKSAR v Fong King Choi [2020] 2 HKC 2019 where the Court of Appeal listed out a number of factors relevant for sentencing for the subject offence.  It is submitted that a starting point of around 2 to 3 years appeared to be appropriate for this case. 

D2

36.Mr Boyton submitted a written mitigation for D2.  It is accepted at the outset that the starting point must be an immediate term of imprisonment and there must be an element of deterrence in the sentence.  Two cases, R v Hadjou [1989] 11 Cr App R 29 and R v Cheung Kwun Yin [2008] 5 HKLRD 592 were submitted and both involved a threat of exposing the victim’s photographic images.  In the latter case, the Court of Appeal reduced the sentence of 3 years’ imprisonment for a demand of HK$1 million to one of 2½ years’ imprisonment. 

37.Counsel for D2 also submitted Fong King Choi where the CA outlined the factors to be considered during sentencing for the current offence.  It is submitted that on the facts of this case, save the amount demanded, this case should be at the lower category of offending.  It was D1 who had made the final demand on his own beyond the agreement, though D2 accepted that he had conspired in a conspiracy and the eventual demand was HK$100 million. 

38.The offence charged is conspiracy to blackmail.  Although each defendant had a different role to varying degrees, the starting point of sentence for the three defendants should be substantially the same.  It is noted that D3 was a former employee of the victim and that the photographic images were obtained whilst in that employment.  It is accepted that that aggravated the offence as there was, in general terms, a breach of trust with his former employer. 

39.D2 had also previously worked for the same employer but there was no actual breach of trust on his part although the roles of the defendants were effectively the same as this was a conspiracy.  

40.D2 is a man of clear record, he was born and educated in Hong Kong and is now 46 years old.  He is married with two daughters and living in a public housing estate.  He was a bodyguard for a local family earning about $30,000 a month.  He now has a criminal record and it is unlikely that he would be employed in this field. 

41.He pleaded guilty at the earliest opportunity and is therefore entitled to the full one-third discount.  Apart from that early plea, D2 had offered assistance to the authority by providing a non-prejudicial statement and indicating his willingness to testify against the co-accused.  I shall come back to the details later.

42.Counsel for D2 relies on the authority HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309.  As submitted, that D2 should be entitled to a further discount in addition to the usual one for early plea.  Counsel submitted that it should be 40 to 50 per cent. 

D3

43.Mr Yuen for D3 also submitted a written mitigation.  D3 pleaded guilty at the first opportunity and admitted the relevant facts.  He is a man of previously good character.  His motive for committing this offence was one of greed and he committed this offence because of financial pressure and poor judgment.

44.D2 and D3 were colleagues many years ago, both working for X’s family. In the course of their employment under X, D3 came to know D2 and D3 lent money to D2 on numerous occasions.  By the time of the offence, D2 still owed D3 more than $70,000 and monetary desperation led D3 to use the video footage. 

45.D3 understands that there is an element of breach of trust in his involvement in this case.  Counsel submitted that D3’s involvement is less than his co-accused.  It is submitted that D3 had no part in deciding the actual sum demanded.  He never contacted X directly and that he merely wanted the money to recover a debt from D2 and also to pay his own debts.  It is also submitted that only in January 2020 that D2 told D3 that they would share $15 million, a small fraction of the 100 million demanded by D1 and D2 of X. 

46.D3’s family has shown him utmost support.  There are mitigation letters from his father and sister and also from D1 himself pleading for the Court’s leniency.

D2’s assistance to authority

47.The sentence was last adjourned for the prosecution to confirm the assistance given by D2 to the authority.  Miss Yuen for the prosecution provided a written submission dated 27 May 2021.  A chronology of the most relevant events is as follows. 

48.On 24 December 2020, there was a mention at the District Court when the case was adjourned for the defendants to obtain legal advice.  On 11 January 2021, the prosecution received a letter dated 9 January 2021 from D2’s counsel, Mr Boyton, stating that D2 would be pleading guilty and that D2 would be willing to testify against the other defendants and providing an NPS to the police. 

49.On 14 January 2021, the police took an NPS from D2 at Stanley Prison. On 19 January 2021, D2’s NPS was served on solicitors for D1 to D3.  On 30 March 2021, there was another mention at the District Court where D1 to D3 all indicated that they would be pleading guilty to the charge. 

50.The prosecution submitted that the NPS was largely consistent with the version which D2 had given to the police during his video-recorded interviews. His evidence would strengthen the prosecution case in the event of trial against D1 and/or D3.  The prosecution accepted that, as such, D2’s information could potentially assist the prosecution and was considered to be of practical use. 

The sentence

51.The maximum penalty for blackmail is 14 years’ imprisonment.  It is not in dispute that there are no sentencing guidelines or normal range of sentencing for blackmail (see for example R v Lau See Kau, CACC 573/1995), and that deterrence is perhaps the most important part of the sentence in such a case (see for example R v Hadjou, HKSAR v Ki Chun Yim, CACC 398/2011, HKSAR v Lee Yik Lun, CACC 56/2015 and HKSAR v Fong King Choi). 

52.In the relatively recent case Fong King Choi, judgment dated 23 July 2019, submitted by the defence, the Court of Appeal at paragraph 26 usefully set out the factors bearing on the gravity of the offence which include:-

(a)  the nature and amount of the demand; whether the demand was for a one-off payment or regular payments;

(b)  the nature and circumstances in and by which the demand was made; whether the offender acted alone or with others; whether the demand was made on a single occasion or on repeated occasions; whether there was actual or threatened violence to a person or damage to property; whether there was expressed or implied triad connection; whether it was part of a sustained campaign of intimidation against other victims; and

(c)  the consequences of the demand and the effect on the victim; whether the victim yielded to the demand for extortion of money and whether any loss was suffered.

53.It is noted that the facts of the case of Fong King Choi are very different from those in this case.  It involved a drunken appellant entering a convenient store in the early hours, swearing at and threatening the staff members and collecting protection money.  The Court of Appeal reduced the original starting point of 30 months to one of 21 months. 

54.The other case relied upon by the defence, namely Cheung Kwan Yin, the facts were also very different from those of this case.  In that case, the applicant who had an affair with the victim threatened her that unless she paid him $1 million, he would disclose their relationship to the husband.  The Court of Appeal considered that the appropriate sentence after trial for the offence of blackmail should be 2½ years’ imprisonment. 

55.Despite the submissions by all defence representatives, I opine that no doubt this case is much more serious than those two cases.  In any event, direct comparison among blackmail cases serves little purpose for sentencing as the subject offence can be committed in an infinite variety of circumstances. 

56.By considering the factors listed out in Fong King Choi and the particular facts of this case, I am of the view that there are several aggravating factors in this case. 

(a)  Without a doubt, this case involves an element of breach of trust. The video clip in question was secretly taken by D3 when he was working for and being responsible for security in PW1’s home. D2, who was also working for PW1 at that time, even not having physically taken part in the recording of the video must have known that it was recorded whilst D3 was on work duty for PW1. Similarly, D1, who had viewed the video, must have known that it was taken by someone working for PW1 at the latter’s home.

(b)  This case involves a serious invasion of privacy. The video was taken when PW1’s wife was changing at home. Any normal and reasonable person would expect that he or she would be safe at home. Invasion of such basic right in the circumstances of this case, even by a stranger, must be condemned by Court and reflected in the punishment.

(c)  The amount of the demand was huge, which was $100 million. Even if the lower figures respectively admitted by D2 and D3 in their cautioned interviews are to be considered (D2 claimed he had told D1 to ask for $30 million whereas D3 claimed he would share $15 million with D2), they are nevertheless very substantial demand of money.

(d)  This case was not committed by a single offender but three defendants acting together in a conspiracy. Also, there were not one-off or heat‑of‑the‑moment threats. The case involved substantial planning and premeditation, in particular as to how the video clip was to be handed over and how the money was to be collected.

(e)  The consequences of the demand and the effect on the victim were serious. Although there was no threats of violence and no financial loss eventually resulted, the immense stress of psychological harm caused to the victim and possibly his family must be reflected in the sentence. PW1 is a business tycoon and his wife is a celebrity in Hong Kong. The threat of publishing the video where the wife was changing at home and with her naked upper body exposed must have caused the victim a lot of anxiety. Not to mention the fact that there were numerous demands made to PW1 or his assistant throughout a prolonged period of over two and a half months from 11 January to 31 March 2020.

57.Although the three defendants had different roles to play, they were all in this criminal scheme by entering into a conspiracy.  None of their participation were dispensable.  D1 was the frontman who did most, if not all, the dirty work by negotiating with and finally attempting to collect the money from the victim.  He must be the one to do all these if the plan was to succeed as he was the only stranger and both D2 and D3 had once worked for PW1.  D3’s involvement was essential and he was the one to provide the video clip so that the unwarranted demand could be made to PW1 and the threat would be operative. D2 was the man in between D1 and D3 to pull the strings to make the whole plan work. 

58.I do not see any significant difference in the respective criminality of the three defendants and I am prepared to adopt the same starting point in sentence for all of them. 

59.In my view, none of the individual personal circumstances of the defendants amount to any significant mitigation.  Subject to one matter which is only relevant to D2 and which I shall deal with later, the only valid mitigation in this case is the defendants’ timely pleas for which I shall give each of them a one-third discount. 

60.I was told that D2 had given a non-prejudicial statement against the co-accused and indicated his willingness to testify against them.  All these were done before D1 and D3 formally indicated their guilty pleas at the mention hearing on 30 March 2021. 

61.Although I noted that D1 and D3 made full admissions upon arrest and shortly thereafter, D2’s assistance to the prosecution must have some effect on their pleas.  Even if there was none, D2’s offer of assistance should be, as a matter of principle, reflected in his final sentence. 

62.It was decided as early as in 2007 by the Court of Final Appeal in HKSAR v Z [2007] 10 HKCFAR 183 that where a defendant had not only given information but had also proceeded to give truthful and material evidence, he could be given a usual discount of 50 per cent including the one-third deduction for pleading guilty.  Here, D2 did not proceed to give evidence in Court because it was unnecessary when all the other defendants decided to plead guilty. 

63.In the case of Lo Sze Tung Stephanie, the Court of Appeal observed in paragraph 64 of the judgment that within the 40 to 50 per cent discount range, there was a category of cases relating to a defendant who had offered to testify for the prosecution but whose offer had not been taken up because of some supervening event beyond the defendant’s control.  In that case, the applicant, though not testifying, had assisted in the apprehension of a co-accused and prevented nearly 2 kilogrammes of ‘Ice’ entering Hong Kong.  The Court of Appeal took the view that the appropriate discount was around 43.5 per cent. 

64.Having considered all the circumstances in this case, I am of the view that the proper starting point for all the defendants should be 4 years’ imprisonment.  D1 and D3 is each given a one-third discount for their guilty pleas and each be sentenced to 32 months’ imprisonment.  D2, for the guilty plea and the assistance given to the authority, is given a total discount of around 45 per cent and is sentenced to 26 months’ imprisonment.