HKSAR v. Man Man Tai

HCMA000966/1999

HCMA966/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.966 OF 1999

(ON APPEAL FROM TMC2219 OF 1999)

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Coram: Hon Nguyen J in Court

Date of hearing: 16 December 1999

Date of judgment: 16 December 1999

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J U D G M E N T

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1. The Appellant pleaded guilty to one count of trafficking in 34 packets of heroin and was sentenced by Mr T.S. Jenkins to 12 months' imprisonment. He pleaded guilty on the basis that two of the 34 packets of heroin, which were the subject matter of the charge, were for onward distribution to other drug users, and the rest were for his own personal consumption. He was sentenced by the Magistrate on that basis.

2. He also gave evidence against another person on the charge of trafficking in dangerous drugs. That person had been arrested by the ICAC for cigarette smuggling offences. The ICAC had intelligence that that other person had also been involved in drug trafficking offences, but they had no admissible evidence to substantiate that intelligence. After that other person was arrested by the ICAC, the Appellant gave information to the ICAC which resulted in that person being charged in addition to the cigarette offences, with drug trafficking offences. For the cigarette offences, that person pleaded guilty and was sentenced to 18 months' imprisonment. For the drug trafficking offences, the Appellant gave evidence at that person's trial, his evidence was accepted by the Trial Judge, and the other person was convicted and sentenced to five years' imprisonment, consecutive to the 18 months for the cigarette offences.

3. The learned Magistrate in the instant case had set two years as the starting point and had reduced that starting point by eight months as a discount for the Appellant's plea. He also further reduced the sentence by four months to reflect the Appellant's assistance to the prosecution, and ultimately sentenced the Appellant to 12 months' imprisonment which amounted, in effect, to a 50% discount of the Magistrate's starting point of two years.

4. Mr Stephen Chan, for the Appellant, had submitted that this Appellant should be treated as a supergrass and therefore entitled to a two-third discount. I do not think that this Appellant fell into the category of a supergrass if only because he assisted the prosecution in only one case as opposed to a normal supergrass who would assist the prosecution in a number of cases. However, it has been pointed out to me by Mr Chan that in the previous cases which he had cited for my consideration, a discount of 50% was usually only for information supplied to the authorities, without the information being coupled with the Appellant appearing in court as a prosecution witness.

5. In R v. Siu Chun-chung & anr. Cr.App.741 of 1995, which Mr Chan relied upon, the Court of Appeal was of the view that one Appellant should be entitled to a discount of 60% and another to 55%. I am of the view that this Appellant should receive a discount of 60% for his assistance. Using the same starting point as the Magistrate of two years, giving him a 60% discount, the sentence, on a strict mathematical basis, should be one of nine months and 18 days. But following what the Court of Appeal did in Siu Chun-chung, I think it is proper to reduce it to nine months. The appeal is allowed to that extent.

Representation:

Mr David Chan, SGC of the Department of Justice, for HKSAR

Mr S.M. Chan, instructed by the Legal Aid Department, for the Appellant