HKSAR v. Chim Fung Fei

[English Translation – 英譯本]

CACC 42/2020, [2024] HKCA 151

From: [2018] HKCFI 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 42 OF 2020

(ON APPEAL FROM HCCC 259 OF 2017)

_______________________

_______________________

________________

J U D G M E N T

________________

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

1.On 21 March 2018, the applicant admitted trafficking in 2.49 kilogramsof a solid containing 379 grammes of ketamine and was sentenced to 90 months’ imprisonment by a Deputy High Court Judge. On 22 April 2020, the applicant applied for leave to appeal against sentence out of time. On 29 December in the same year, he was granted bail pending appeal. The said application was directly transferred to the Court of Appeal for appeal on the direction of a single judge.

Facts of the present case

2.On 1 November 2016 at 1:07 pm, the police intercepted the applicant and another man outside a hotel in To Kwa Wan. The applicant was caught red-handed for being in possession of the dangerous drug involved in the present case. Under caution, the applicant stated, “Ah Sir, I bring the stuff for others.”

Original sentence

3.The applicant, aged 23 at the time of sentencing, was educated up to Form 6. Before the arrest, he was a lifeguard. He claimed that it was only because of a huge debt that he trafficked in the dangerous drug to “earn quick money” at the instigation of others.

4.In accordance with the sentencing guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the trial judge mathematically adopted the starting point of 9 years and 9 months. Since the applicant did not enter a guilty plea until the first day of the trial, he could only have a one-fifth discount in his sentence which was reduced to 93 months accordingly. On accepting that the applicant actively participated in charitable and community activities in the past, the trial judge further gave him a discretionary discount of three months. The ultimate sentence was 90 months’ imprisonment.

Present application

(Providing assistance to the authorities)

5.The applicant gave two “non-prejudicial statements” to the police on 28 June 2018 and 22 August 2019 successively to testify that the man with the surname Wong who was intercepted together with him at the material time was the person who had recruited him to traffic in the dangerous drug, thereby enabling the police to arrest Wong on 15 August 2020. Afterwards, the applicant even gave evidence as a prosecution witness at Wong’s trial (HCCC64/2021) in the Court of First Instance for three days. The content of his evidence was in general consistent with that of his “non-prejudicial statements”. Meanwhile, the prosecution also made use of the WhatsApp records provided by the applicant as well as other evidence such as police witnesses and the CCTV of the hotel in question. Nevertheless, the jury ultimately found Wong not guilty.

(Related submissions)

6.Counsel for the applicant cited two cases, namely Z v HKSAR（2007）10 HKCFAR 183 and HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, submitting that even though Wong was eventually acquitted, the applicant had already provided effective assistance to the law enforcement agencies. Therefore, he should still be given the maximum discount on the basis that he was not entitled to the full one-third discount due to a late guilty plea.

(Respondent’s response)

7.Counsel for the respondent did not object to the applicant’s application for leave to appeal out of time and the computation in general.

8.Counsel for the respondent explained that the 50% discount mentioned in Z already incorporated the one-third discount commonly applied for a guilty plea at the time. In other words, the actual discount purely for informing on and testifying against others was 16.67% (50% minus 33.33%). Since the applicant did not plead guilty until the first day of his trial, he could only have a one-fifth discount according to the new practice. Hence, the discount that he was entitled to for informing on and testifying against Wong in court would be 36.67% (20% plus 16.67%). By such calculation, the sentence of the applicant on succeeding in the appeal should be 71 months (the starting point of 9 years and 9 months to be reduced by 36.67% and followed by a further discretionary reduction of 3 months given by the trial judge).

(Discussion)

9.Counsel for the respondent’s computation is correct.

10.HKSAR v Y [2005] 3 HKC 337 was a case heard by Hon Stuart-Moore and Woo VPP and Stock JA (as he then was) of the Court of Appeal. Upon being convicted after trial, the applicant (Y) in that case then informed the police about an offender in another case, which resulted in the arrest and prosecution of the offender who entered a guilty plea. Stuart-Moore VP pointed out in the judgment that the 40% discount given to the person who had provided valuable information to the authorities without being required to testify in court already incorporated the one-third discount commonly applied to a guilty plea at the time. As such, the actual reduction for giving assistance to the authorities was about 7%. Since Y pleaded not guilty, he was not given the guilty plea (or any other) discount. Therefore, the discount which he was entitled to was only 7%. Since Y was sentenced to imprisonment for 4 years and 6 months in his own case, after a reduction of 7%, ie, about 4 months, the sentence was 4 years and 2 months.

11.The Court of Appeal specified in Y’s case the formula for calculating the discount to be given to a person who pleaded not guilty but provided assistance to the authorities. The Court of Appeal’s approach in that case was no difference from the proposition of counsel for the respondent, except that the applicant in the present case entered a late guilty plea rather than a plea of not guilty.

Judgment

12.We grant the applicant leave to appeal out of time and allow the appeal in question. His original sentence is set aside and substituted with one of 71 months’ (5 years and 11 months) imprisonment.

Ms HO Yuen Han Anna, instructed by Peter KH Wong & Co, assigned by the Director of Legal Aid, for the Applicant

Ms NG Cheuk Hwa Claudia, Senior Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.