The Queen v. Ng Wai Kwong

CACC000341/1990

Headnote

Defendant pleads guilty to four charges and gives evidence against co-accused in two of the charges in which they are concerned. Defendant is charged alone in the other two charges. Defendant is entitled to discount by reason of his co-operation with the police and the fact that he had given evidence against the co-accused. He is not entitled to a full discount on all four charges. The discount to be given should relate either to the charges with regard to which he gave evidence or if applied across the board to all charges, should be appropriately scaled down.

BETWEEN

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Coram: Hon. Silke, V.-P., Power & Macdougall JJ.A.

Date of Hearing: 28 December 1990

Date of Delivery of Judgment: 30 January 1991

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JUDGMENT

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Power J.A.:

1. This is the judgment of the Court.

2. The applicant was found guilty after trial by Deputy Judge Leong on three counts of possession of dangerous drugs for the purpose of unlawful trafficking and on one count of possession of arms and ammunition without a licence.

3. The facts disclosed that on the afternoon of Saturday 27th May 1989, surveillance officers followed the defendant and two others to Ha Wan Village, a small fishing village in the New Territories. The three men parked their car and went into a house, emerging a short time later with 2 bags.  The police then arrested them and found that the two bags contained No. 4 heroin. The first contained 3,756.66 grammes of a mixture containing 3,455.24 grammes of salts of esters of morphine (Count 1), and the second contained 3,892.07 grammes of a mixture containing 3,458.97 grammes of salts of esters of morphine (Count 2). The police on the next morning searched the applicant's flat and discovered No. 4 heroin, raw opium, mandrax tablets and amphetamines. The quantities were 631.03 grammes of a mixture containing 592.53 grammes of salts of esters of morphine, 18,162.90 grammes of raw opium, 3,967 tablets containing a total weight of 730.50 grammes of methaqualone, and 3,571.50 grammes of methamphetamine hydrochloride (Count 3). The police also found a 7.62 x 25 mm calibre pistol (Count 4). The applicant said that he was in the process of collecting a second consignment at the time of his arrest.

4. He admitted all four offences under caution, saying that the drugs the subject of Count 3 had been a first purchase from Mainland China, bought on 23rd May 1989, and that the pistol had come with them "for goods - escort purpose". It was common ground that the applicant had after arrest given information to the police with regard to the drug offences, that he had pleaded guilty at the first opportunity when he appeared before a magistrate and that he had given evidence against the three co-defendants on Counts l and 2. Two of these were in the outcome acquitted by majority verdicts but this was in no way as a result of the evidence of the applicant who, the prosecution conceded, had lived up to his proof of evidence.

5. It is important, because of the thrust of this appeal, to make it clear at the outset that the evidence which the applicant gave involved the first of the two dangerous drug charges with which he was charged with three co-defendants, and that the other count of possession of dangerous drugs for the purpose of unlawful trafficking and the count of possession of arms and ammunition without a licence were counts against him alone as to which no evidence was given.

6. Mr. Alderdice, who appears for the applicant today and who appeared at the trial, said when addressing the trial judge in mitigation that the proper approach was to follow the guidelines set out in R. v. CHAN Chi-ming [1979] H.K.L.R. 491. He submitted:

"Now, incidentally in the course of that Judgment in LAU Tak-ming and others, my Lord, the approach in CHENG Yeung was discarded. That is the conversion approach. So, I ask you also not to sentence on the basis of CHENG Yeung.

But there is still a saver in CHAN Chi-ming. CHAN Chi-ming, of course, now retired by the decision in Lau. So I ask you to approach the sentence in this case on the CHAN Chi-ming principles, and CHAN Chi-ming in itself makes an allowance and recognizes that there ought to be higher sentences for No. 4, and that is what we are dealing with here."

The approach urged by Mr. Alderdice appears to have been to apply the CHAN Chi-ming guidelines to the amount of the mixture, but to increase the length of sentence taking into account the fact that No. 4 heroin was involved. Mr. Alderdice conceded that, in using this approach, if the applicant were to have received the appropriate consecutive sentence for each offence, the overall sentence would have been about fifty years. Although, in the outcome, the trial judge appears to have adopted this approach it was, as the law then stood, in fact, not applicable. Given the date of the offence, the correct approach was that set out in R. v. CHENG Yeung (1989) 2 H.K.L.R. 258. The trial judge should have required a notional conversion of the No. 4 heroin into No. 3 heroin and have based the sentence thereon. The fact that this was not done cannot but have worked to some extent in favour of the applicant.

7. While addressing the trial judge in mitigation, Mr. Alderdice unexpectedly received further instructions and the matter was adjourned to allow these to be confirmed.  On the following day Mr. Alderdice stated that, according to these instructions, the applicant

".... did give names and nicknames of persons he knows and whom the police have targeted in relation to drug syndicates. He did give information - and I perhaps should add that the series of debriefing interviews took a week at Lai Chi Kok because of the amount of information and the nature of those interviews. He did give information about the operation of the Wu Nam gang who are people coming here illegally from China, as your Lordship knows, and who are fitted out to do robberies and then leave the territory."

He went on to state:

"My Lord, he has done the best he can and although it must be accepted that no immediate arrests have resulted from the information, that is not the point. The point is that he has cooperated to the fullest extent and this information has been regarded as useful. It is there in the police intelligence data bank and it is the sort of information which in this sort of business they do find helpful. So his assistance has gone beyond the limits of this particular case.

My Lord, you have a discretion in terms of the authorities, in particular Chan Fu-kui, to give in an ordinary case where someone has given help a discount of up to 50%."

8. The trial judge appears to have acted upon the basis of these submissions. In so far as the dicta in Chan Fu-kui [1986] H.K.L.R. 967 may have played a part in the matter, the applicant was again fortunate. In The Queen v. NG Hon-kit C.A. 90 of 1990, this Court made it plain that CHAN Fu-kui's case "should not be taken to have established any guideline to be generally followed. Every case of this type must depend very much upon its own circumstances." Mr. Alderdice drew to our attention the fact that the co-defendant who was convicted on the .first two counts after trial received a sentence of 14 years. He pointed out that, although disparity was not a ground of appeal, the trial judge indicated that his client would have received a sentence of 18 years after trial on those two counts. This apparent inconsistency in the judge's approach is, perhaps, explained by the fact the co-defendant who received 14 years was involved only in two offences which arose out of the single incident at Lau Fau Shan, whereas the applicant was involved in a further quite separate drug offence, the 3rd count, which arose from the finding of drugs in his premises. It is not a matter, in our view, of which anything can properly be made.

9. The trial judge when sentencing said:

"This is a very serious case. Each of the quantities of the 1st charge and the 2nd charge would attract, according to the guidelines of CHAN Chi-ming in normal circumstances, a custodial sentence of at least 12 years imprisonment.

However, Chan Chi-ming is essentially dealing with number 3 heroin mixture. All the circumstances in this case indicate that this is a case for which I am entitled to depart from those guidelines and impose a heavier sentence rather than strictly adhering to chose guidelines.

For the 1st and 2nd charge each should attract a sentence of 18 years imprisonment and for the 3rd charge the conviction should attract at least 14 years imprisonment.

On the 4th charge on the authority of Attorney General v. Li Kit-wai following the authority of Attorney General v. Lai Shu-ping, the proper sentence for simple possession of a firearm after a plea of guilty is 6 years imprisonment.

But in the earlier case of Lai Shu-biu (sic) the Court of Appeal also indicated that if there was an indication to use the firearm for an unlawful purpose, a sentence in excess of 6 years after a plea of guilty is appropriate. By your own admission there is every intention for you to use the firearm for escorting your commodity of dangerous drugs. Taking into consideration the plea of guilty to this 4th charge, it should attract, taking that aggravating factor into consideration, a sentence of 7 years imprisonment.

However, I will take into consideration other factors in determining the appropriate sentence that I should impose. I take into consideration your record, you are not a person with a clean sheet. You have four previous convictions. So anything that would be given consideration in respect of a person with a clear record would not be given for your benefit.

On the other hand, I will take into consideration that your previous convictions involve two convictions relating to dangerous drugs. For the purpose of your mitigation I will take into consideration your plea of guilty at the very first instance in the magistrate's court, your full cooperation with the police in this particular case as well as in divulging information to the police in respect of other cases the police are now investigating.

I also take into consideration that such information are considered as - has been confirmed by the prosecution to be useful to the police. I also take into consideration you have given evidence in the trial against the other defendants.

However, all these do not lead me to come to the conclusion that you come into the category of a supergrass. However, I consider that you should be entitled to the full 50% discount on the sentences which are attracted by these offences.

You are accordingly sentenced as follows: on the 1st charge 9 years imprisonment after a reduction by 50% from, the sentence of 18 years. On the 2nd charge 9 years imprisonment after a reduction by 50% from the sentence of 18 years imprisonment. On the 3rd charge 7 years imprisonment after a reduction by 50% from the sentence of 14 years. All the sentences on the 1st, 2nd and 3rd charge are to run concurrent.

On the 4th charge you will go to prison for 6 years after a reduction for your cooperation with the police in giving evidence. The sentence on the 4th charge is to run consecutive to the sentences on the other three charges."

10. The thrust of the appeal is that the trial judge failed to apply "the full 50% discount" to all of the sentences and that this produced an overall sentence which offended against the totality principle. Although he does not state it in terms, the reasoning of the trial judge was, in our view, clear. He was satisfied that the discount should only be given in relation to the sentences with regard to which the applicant had given evidence. The applicant was again fortunate that the trial judge applied the discount to all three drug offences. The third drug count was quite separate offence with regard to which he was charged alone, and which might well have been separated from the other two drug offences as his evidence had no application thereto.

11. Mr. Alderdice acknowledged that the factor of real significance weighing in favour of the applicant' was not the provision of information but the giving of evidence against the three co-accused. We certainly take the view that the substantial discount was warranted primarily because of that factor. The providing of information to the authorities, which does not result in the apprehension of any other offenders, while a matter of some weight, is of very much less significance than the giving of evidence whereby a defendant publicly and irrevocably lays bare his intention to cooperate with the authorities and exposes himself to a very real possibility of reprisal.

12. We are satisfied that the submission of Mr. Alderdice that the full discount given in these circumstances should be applied equally to all counts faced by an applicant cannot be correct. Its incorrectness can be demonstrated by posing the case of an offender who is arrested on four charges, one of burglary committed in company with others and three of robbery committed alone. If such an applicant should give evidence against the co-defendants in the burglary charge, it would, in our view, be quite wrong to give the discount, to which he entitled himself by giving evidence in the burglary charge, across the board by applying it also to the sentences in the three robbery charges. Mr. Alderdice in the outcome conceded that his "full discount across the board" argument might not be sustainable where other offences were involved as to which the evidence had no bearing, but argued that the discount, scaled down if that be considered necessary, should then be given across the board. He also argued that the possession of arms and ammunition charge was so intimately involved in the dangerous drug offences that it was appropriate that the discount be applied thereto. This argument overlooks the fact that both it and the third count with which it was connected were quite separate offences from the first two counts with regard to which the evidence was given.

13. We are satisfied that it would be proper for a trial judge either to adopt the approach of the trial judge in this case, that is to apply the discount to the offences with regard to which the applicant gave evidence and to impose the normal sentence with regard to the other offences, or to apply the discount across the board approach but scaling down the discount bearing in mind that offences which did not attract any discount were thereby included.

14. We are further satisfied that, given the seriousness of the offences and, in particular, the international aspect of the drug offences, the 15 years imposed does not offend against the totality principle.

15. While we hesitate to adopt too mathematical an approach to the calculation of sentence, we cannot help but remark that had the trial judge adopted a scaled down discount and applied it across the board he would, in our view, have arrived at the same sentence. The three charges before application of the discount should, he was satisfied, have attracted a concurrent sentence of 18 years. The arms and ammunition count before application of any discount should have attracted a sentence of 7 years. The total sentence before discount would, therefore, have been 25 years. Applying a scaled down discount of 40% to this sentence, one arrives at a sentence of 15 years.

16. The application is dismissed.

Representation:

Mr. C. Coghlan (Crown Prosecutor) for the Respondent.

Mr. Gary Alderdice (D.L.A.) for the Applicant.