HKSAR v. X

CACC 193/2022

[2024] HKCA 1168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 193 OF 2022

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.We have refrained from providing detailed particulars about this case because of the sensitivity of the subject matter that we need to address in this appeal concerning the appellant’s assistance he has rendered to the authorities. The appellant appeals, by leave of the Single Judge[1], against the sentence of 18 years’ imprisonment imposed on him in the High Court following his conviction after trial of trafficking in dangerous drugs.

2.The sole perfected ground of appeal is that the appellant provided assistance to the authorities before and after the appellant’s conviction and sentence. It is submitted that the assistance rendered was of practical use, and therefore should have been considered as warranting a discount to his present term of imprisonment.

3.The respondent principally acknowledges that the appellant has assisted the authorities by providing sufficiently specific information leading to the interception of a consignment containing dangerous drugs, but no arrests could be made.

4.The issue in this appeal is, therefore, how much of a sentencing discount should be granted to the appellant for the assistance he has rendered to the authorities.

The appellant’s assistance to the authorities

5.The details of the information supplied by the appellant to the Customs and Excise Department were mainly recorded in confidential documents that have been addressed in statements from the relevant Customs officers. The appellant has in turn filed an affirmation together with supporting documents regarding the assistance he provided. This material is properly before us without objection from the parties.

6.Some time ago, the appellant was arrested and charged for trafficking in dangerous drugs. He stood trial before a judge and jury and was found guilty of the charge. He was sentenced to 18 years’ imprisonment. He had provided information to the authorities prior to his trial, but it was not until after he was convicted and sentenced that he gave detailed particulars about a shipment of drugs that were destined for Hong Kong. He provided the names of the persons involved in the shipment and the mode of concealment of the drugs. The subject of the assistance he had rendered to the authorities had not been raised when he was sentenced.

7.The appellant gave particulars about a shipment of dangerous drugs, including the nature and quantity of the drugs, the method of concealment of the drugs, details of the consignor, consignee and the arrival date of the shipment. Acting on this information, Customs officers intercepted the consignment and found suspected drugs concealed in the manner disclosed by the appellant. However, preliminary drug tests were not conclusive and the suspected drugs were submitted for further chemical analysis, albeit three months later. It was subsequently confirmed that the suspected drugs were in a form where other chemical reagents were required to convert them into a dangerous drug for sale in the local drug market. Two lots of drugs were seized by the Customs officers. One lot consisted of over 3 kilogrammes of a solid containing over 2.5 kilogrammes of a narcotic, and the other consisted of over 6 kilogrammes of a solid containing 660 grammes of a narcotic. It has been accepted that the drugs had a street value of nearly $1 million.

8.The Customs officers took the view that the information provided by the appellant was of “limited” practical use because apart from the drugs, the details of the consignor, consignee and mode of shipment did not result in any arrests and were of no potential future use.

9.As submitted by the appellant’s counsel, the information provided was useful to the extent that it allowed the Customs officers to intercept the shipment, which turned out to be a substantial quantity of drugs, which would have infiltrated the local drug market, a factor usually considered in sentencing. The information provided by the appellant was truthful and accurate and was not within the knowledge of the authorities prior to the interception of the shipment. The shipment and nature of the drugs were as the appellant predicted and constituted serious criminal offences. It was shown that the appellant had genuinely co-operated with the Customs officers and expressed a willingness to give evidence if arrests were made.

10.After the interception of the shipment, the appellant allegedly received threats inside prison on two occasions. As a result, he requested to be placed in a category that offered limited contact with other inmates.

11.The respondent acknowledges that the appellant provided particulars of the drugs shipment and the names of the persons involved. However, the respondent submits that this information did not result in any prosecution or conviction, and there is no concrete evidence supporting the alleged threats faced by the appellant, nor of any harm inflicted upon him or his family because of the tip off about the shipment.

12.The respondent submits that the sentencing discount to the appellant’s current sentence should be a relatively small percentage.

Discussion

13.The sentencing discount given to a defendant for the assistance he or she has rendered to the authorities is a pragmatic means of dealing with criminal activities before or after they have taken place. This was explained by Li CJ, with whom the other judges of the Court of Final Appeal agreed, in Z v HKSAR:[2]

“11. The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one.”

14.Given the sensitive nature of the subject of assistance rendered to the authorities by a defendant and the role played by courts in the sentencing process, it is imperative that the issue is addressed in a principled and disciplined manner to ensure that there is no abuse or misuse of the process. It is therefore important that the assistance is properly assessed for this purpose. Li CJ provided the following guidance on how to assess the assistance provided:

“13. In deciding whether the assistance given by the defendant to the authorities merits a discount in a particular case and if so, its extent, a number of factors should be taken into account. Broadly speaking, the most important factors usually include:

(a) The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

(b) The likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody, and danger to himself and his family after his release from prison.”

15.Li CJ then went on to refer to the discounts normally approved by the Court of Appeal for certain categories of assistance rendered by an appellant:

“23. The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one-third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at p 340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep, CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat Fan (unrep, CACC No 414 of 1999, [2001] HKEC 662). Where the level of co-operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two-thirds has been used. R v Chan Fu Kui [1986] HKLR 967 at p 968, HKSAR v Ng Shek Yu (at p 3).”

16.We have been referred to several cases[3] as if they provide guidelines for the range or amount of discount to a defendant’s sentence that he or she should receive for assistance to the authorities that have been assessed to be of practical use. The following remarks of this Court in HKSAR v Sysoev Igorevich Iurii[4]are apposite:

“131. It should be appreciated that the Court in HKSAR v Lo Sze Tung Stephanie [5] was not setting out sentencing guidelines for assistance to the authorities. It was explained in general terms that specific categories of assistance would usually fall within a range of percentage discounts between 33.3% to 40% and 40% to 50% (incorporating a one-third discount for a timely guilty plea). It was not restricting a sentencing court from exercising its discretion when determining an appropriate discount for assistance to the authorities which may be more or less than the usual range of percentage discount depending upon the circumstances of the case. Therefore, the Court of Final Appeal in Z v HKSAR was careful when referring to percentage discounts for assistance to the authorities to describe them as the ‘usual’ discount.

132. We would stress that care needs to be taken when considering an appropriate discount for assistance to the authorities other than slavishly applying the range of percentage discounts usually given for a particular category of assistance. There are many factors that need to be considered when a court exercises its sentencing discretion in respect of an offender on the ground of assistance to authorities. Hence, generalisations should not constrain or corrode the sentencing process. This was succinctly encapsulated by Gleeson CJ (as Gleeson NPJ then was) when discussing sentencing for assistance to authorities in R v Gallagher:[6]

… it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by ‘tariffs’ derived from other or different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.

133. To deliver individual justice, a court should exercise its sentencing discretion with the necessary degree of flexibility and sensitivity when addressing the circumstances of the offence and the offender.”

17.In HKSAR v Yeung Hoi Ting [7], in setting out the approach to be adopted when dealing with assistance from a defendant as a mitigating factor, this Court discussed the basis for assessing the assistance:

“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 was ‘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 VP and McWalters JA, 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 VP, 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.

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’.”

18.There is no fixed method or a list of criteria for evaluating the assistance rendered by a defendant to the authorities. It will very much depend upon the particular facts and circumstances of the case. In cases where the assistance provided is information it may only be after a period of time that the information is shown to be of practical use, particularly when the information relates to a future event. This case is an example of how the usefulness of the information was eventually established when the event to which it was related occurred.

19.When a defendant provides assistance to a law enforcement authority, it is for the authority to determine whether or not the assistance is of practical use. If the authority forms the view that the information or assistance is of no practical use and the prosecuting authority agrees with this view, unless the papers clearly suggest to the contrary, that should normally be the end of the matter. It is not for the courts to become embroiled in endless debates or futile wrangling between the defence and the prosecution about how the information or assistance should be treated or regarded. It is only in exceptional circumstances that a sentencing court will become involved in a dispute regarding the assistance that a defendant has rendered to the authorities, where it can be shown that there was an issue of bad faith on the part of the authority or the evidence strongly suggests an entirely different view of the assistance rendered by the defendant: Yeung Hoi Ting [8].

20.The regime in assessing the assistance rendered by a defendant to the authorities relies on the law enforcement agency and the prosecuting authority fulfilling its duties and obligations of making a true and accurate assessment of such assistance: Yeung Hoi Ting [9]. It is therefore fundamental that those responsible for making the assessment of the assistance carry out this important task properly, otherwise it will invoke the court’s scrutiny and opprobrium if it is found that it has not been properly addressed as required. We stress that the process also involves prosecuting counsel ensuring that the assessment is true and accurate.

21.In the present case, the information provided by the appellant was, with respect, far from being only of “limited” practical use. It seems such a restrictive view was made because it did not result in any arrests, nor was it considered to be of potential future use at the time. However, it was subsequently confirmed after chemical analysis that the seized substances were dangerous drugs, which simply required chemical conversion in order to render them into a form for the local drug market. The appellant’s information was detailed and specific, uncovering a large shipment of valuable dangerous drugs and preventing their distribution to the local drug market. The appellant was willing to testify against those involved, but as it turned out, there were no arrests. Simply because the appellant could not testify in any forthcoming trial against those involved did not “limit” the practical use of the information that he had provided. Such characterisation of the appellant’s information was unduly restrictive.

22.As cases differ in so many ways, it is essential that a sentencing court has a degree of flexibility to deliver individual justice when imposing a sentence on a defendant who has assisted the authorities. Whilst there is a limit to the discount that can be given to a sentence for such assistance, it will depend on the nature and outcome of the assistance and the consequences to the defendant where relevant.

23.We consider that the appellant’s assistance was of practical use in the sense that it prevented a significant quantity of valuable dangerous drugs from ending up on the streets of Hong Kong. By the nature of the information and the circumstances of this case, the Customs and Excise Department also obtained relevant intelligence regarding the method of smuggling of these drugs and the persons allegedly involved.

Conclusion

24.We have made an assessment of the discount the appellant should receive to his sentence and have come to the view that it should be 1 year and 6 months. Accordingly, we allow the appellant’s appeal, set aside his sentence of 18 years’ imprisonment and substitute it with a sentence of 16 years and 6 months’ imprisonment.

Ms Kasmine Hui, SPP, of the Department of Justice, for the respondent

Mr Richard D Donald and Ms Nisha Mohamed, instructed by Eric Cheung & Lau, assigned by the Director of Legal Aid, for the appellant