HKSAR v. Lam Siu Sang

CACC 135/2022, [2024] HKCA 206

On Appeal From [2022] HKCFI 2787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 135 OF 2022

(ON APPEAL FROM HCCC NO 360 OF 2020)

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REASONS FOR JUDGMENT

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1.The applicant pleaded guilty before a magistrate, on 28 December 2020, to a single count of trafficking in a dangerous drug, namely 2,979.9 grammes of a crystalline solid containing 2,920.5 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having been committed to the High Court for sentence, he in due course confirmed his plea and was sentenced by Wong J, on 15 August 2022, to 17½ years’ imprisonment.

2.By his Form XI, filed on 31 August 2022, the applicant now seeks leave to appeal against his sentence.

Facts accepted by the applicant

3.On 24 February 2020, the applicant arrived at Hong Kong International Airport from Thailand. He was intercepted for customs clearance when an X-ray and baggage examination revealed suspicious items in his suitcase. When the suitcase was cut open, Customs officers found inside various concealed compartments, 26 plastic packets containing the dangerous drugs in question, to a total street value of $1,594,247.

4.Upon being arrested and cautioned, the applicant admitted bringing the dangerous drugs into Hong Kong for a reward of HK$15,000.

5.In a subsequent video-recorded interview (“VRI”), the applicant explained how the suitcase (with the drugs) had come into his possession in Thailand. According to his account in interview, a male person by the name of “Bingo” in Hong Kong knew that he was in need of money and introduced this “job” to him; Bingo then accompanied the applicant to check in for the flight to Thailand, which Bingo had paid for and given him some expenses for the journey. Bingo told him that someone would give him a suitcase when he was in Thailand.

6.On the night before he was due to return to Hong Kong, the applicant said he met with two other persons in the hotel lobby of his hotel in Thailand, on which occasion he was given a suitcase to bring back to Hong Kong. He understood that someone would pick him up once he had cleared Customs in Hong Kong, but he did not know who that person was. He had not so far been paid the HK$15,000 reward he was promised.

Mitigation, alleged assistance and sentence

7.The applicant was 25 years of age at the time of sentence and his parents were divorced. He had been unemployed for 6 months immediately prior to the commission of the offence.

8.It may be relevant to point out that the sentencing hearing was adjourned (after it had been convened) on three occasions at the request of defence counsel (not Mr Wong), in view of the applicant’s indication that he wished to give assistance to the Police with a view to reducing his sentence.

(a)  The first hearing took place before Deputy Judge McWalters on 8 September 2021 and was listed for plea and sentence, although the applicant was not, on this occasion, in fact asked to confirm his plea.

(b)  The second hearing was fixed before Wong J (“the judge”) on 14 April 2022, but was adjourned after the applicant had confirmed his plea and accepted the facts.

(c)  The first part of the third hearing before the judge on 18 July 2022 was held in camera, while the other part was heard in open court and then immediately adjourned to 15 August 2022 for sentence.

9.The applicant had provided three non-prejudicial statements to the Police, dated respectively 8 June 2021, 15 June 2022 and 20 July 2022. It is not necessary to go into the information contained in the statement/report of Senior Inspector Ng Ka Yu, dated 12 August 2022. However, it concluded with the observation that, “coupled with [the applicant’s] poor credibility, the information provided by [him] is of no practical use”.

10.At the final hearing on 15 August 2022, having heard counsel and considered a further mitigation letter from the applicant[1], the judge adopted a starting point of 24 years and 10 months’ imprisonment, which was then enhanced by 2 years’ (or 24 months’) imprisonment for the ‘international element’ involved in the offence, taking the notional sentence after trial to 26 years and 10 months’ imprisonment, which was then discounted by one-third to reflect the applicant’s timely plea of guilty. Of his alleged assistance, the judge said, at the end of his sentencing remarks, “there is information before the court which persuades me to give the defendant a further discount of 4 months”[2]. The resultant sentence thus became 17½ years’ imprisonment.

Grounds of appeal

11.Mr H Y Wong, for the applicant here but not below, indicated that he had no criticism of the base starting point of 24 years and 10 months’ imprisonment and the enhancement of 2 years adopted by the judge. His sole ground of appeal was a complaint that the 4-month discount for the applicant’s alleged assistance was inadequate, thus rendering the overall sentence manifestly excessive.

12.Mr Wong submitted that the 4 months’ reduction was equivalent to a mere 1.24% of the enhanced sentence, which percentage was too low when compared with five appellate authorities to which he referred[3]. In each of those five cases, the applicants had assisted in a controlled drugs delivery operation and, although such assistance did not ultimately lead to the arrest of any other persons, the additional discount of sentence varied from 4.85% to 7.5%.

13.Mr Wong also relied on HKSAR v Yeung Hoi Ting[4] and submitted that if a non-prejudicial statement was considered potentially useful by the prosecution, it may still yield a greater discount on sentence.

Respondent’s submissions

14.Ms Ranee Khubchandani, for the respondent, submitted that the non-prejudicial statements of the applicant were not useful at all and, absent any valid basis to reduce his sentence for his purported assistance, the giving of an additional discount of 4 months’ imprisonment was more than generous. She described it as “paradoxical” that the judge, who had erred on the side of generosity when he could (and should) have given no credit at all for the applicant’s assistance since it was of no practical use, should now be criticised for not giving him enough credit.

15.She pointed out that the material contents of the applicant’s three non-prejudicial statements were inconsistent not only with each other, but also with what he had earlier said in his VRI, leaving the applicant’s credibility in considerable doubt.

16.Ms Khubchandani explained that, notwithstanding a person was arrested and identified by the applicant at an identification parade, that person had remained silent under caution and there was no evidence to link them with the applicant, or with the offence of drug trafficking, so as to provide the basis of any credible case against them.

17.As for the authorities cited by the applicant, the respondent submitted that no meaningful comparison could be made between their facts and the circumstances of the applicant’s case. Five of the cases relied on involved controlled delivery operations, which were effectively “sting operations” conducted by the law enforcement authority concerned, and in which the defendant/appellant had played a genuine part at obvious personal risk. The sixth case of Yeung Hoi Ting concerned an appellant who had given a non-prejudicial statement, described by prosecuting counsel at trial as “potentially very useful”, and yet the prosecution had ultimately decided not to call her to give evidence. In the result, the trial judge had given the appellant no credit for her assistance, when plainly she was deserving of some recognition. In the present case, by contrast, the prosecution had, in conformity with the procedure set out in Yeung Hoi Ting, determined that the applicant’s information was “of no practical use”.

Consideration

18.In Yeung Hoi Ting[5], the Court took the opportunity to prescribe the correct procedure for dealing with assertions of assistance rendered by a defendant to the authorities. In the absence of any suggested non-compliance with the relevant procedure, or error by the sentencing judge, an appellate court should be slow to consider the information afresh or interfere with the authority’s assessment of it[6].

19.In the present case, the alleged assistance provided by the applicant was in the form of information relating to another person contained in three non-prejudicial statements. That person had never been mentioned in the applicant’s earlier VRI. Before me, Mr Wong sought not to argue that the relevant authority had failed in its duty, so that the applicant was effectively prevented from providing ongoing assistance, which he could otherwise have provided, such as testifying as a prosecution witness. Instead, he accepted the authority’s conclusion that the information provided by the applicant was of no practical value but pointed out that the judge had nevertheless been persuaded to give a small discount for it. Having been so persuaded, a greater discount should have been given, since the applicant had evidently tried his best to “genuinely” assist the authorities.

20.It seems to me that the judge was very generous in the circumstances in giving any discount at all for the applicant’s suggested assistance. Furthermore, I am not persuaded that the judge found his assistance to be “genuine”. There was nothing to show that the applicant had any connection with the person he identified, other than he must have known (or known of) that person in order to have been able to identify them. There were no calls or text messages between telephones or anything to link them at all, and nothing to suggest that this person had been involved with the applicant at the relevant time, or with dangerous drugs or with this offence. Consequently, the prosecuting authority would have had to make a careful assessment and decision as to whether the applicant’s credibility was strong enough to sustain a case against the person he had named in his non-prejudicial statements on his word alone. The prosecution determined that such were the extent of the problems with the applicant’s developing information, both in his VRI and in his non-prejudicial statements, that the information he had provided was of no practical use. Indeed, Senior Inspector Ng went so far as to suggest that the applicant’s 2^nd and 3^rd non-prejudicial statements were a “made-up story with a view to concealing the (applicant’s) real recruiter”.

21.The position of the appellants in the controlled delivery cases and in Yeung Hoi Ting were very different for the reasons concisely explained by Ms Khubchandani. I agree with her that the judge would have been perfectly entitled to give the applicant no credit at all for his alleged assistance. The fact that he was persuaded to give the applicant some credit, when the authority itself had declared the applicant’s assistance to be of no practical value and, worse, that it was disingenuous, does not mean that an appellate court is bound to apply a percentage discount range or formula on the basis that it was of practical use. This line of argument is not one that I consider to be reasonably arguable on appeal.

22.The application for leave to appeal against sentence was accordingly refused. 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 the applicant has 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 Ranee Khubchandani SPP, of the Department of Justice, for the Respondent

Mr H Y Wong, instructed by the Legal Aid Department, for the Applicant