The Queen v. Hung Siu Cheung(D2)

CACC000301/1986

BETWEEN

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Coram: Hon. Li, V-P, Yang J.A. and Bewley, J.

Date of Hearing: 10th October, 1986

Date of Delivery: 10th October, 1986

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JUDGMENT

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1. This applicant was arrested, together with a co-defendant, in a flat where heroin was being manufactured. He pleaded guilty to a charge of manufacturing dangerous drugs, whereupon the drown offered no evidence on a second count alleging possession of over 10 kg. of dangerous drugs for the purpose of unlawful trafficking:

2. His co-defendant was convicted on the first count, after a trial in which the applicant was a prosecution witness, and acquitted on the second count.

3. The trial judge took 15 years as the starting point for the sentence on the first count. Making some allowance for the co-defendant's age (55), he sentenced him to 14 years.

4. Sentencing this applicant, the judge took into account his plea, his willingness to give evidence for the Crown and his previous history - he had one previous conviction - and imposed a term of 12 years.

5. Mr. Alderdice submits that the judge gave the applicant insufficient credit for his plea and for his co-operation with the police. He referred us to several cases in England and Hong Kong.

6. In particular he relied upon R. v Leroy Davies ^(1), in which the English Court of Appeal decided that public policy required that criminals who are prepared to give assistance to the police should receive a substantial discount in sentence, depending on the gravity of the offence and the quality of assistance.

7. This case was cited by Addison J. in R. v Chiu Shin-ming^(2). In that case the judge said the sentence he would have passed after trial was 14 years but, in view of the defendant's assistance to the police, he reduced it to 6 years imprisonment

8. Mr. Alderdice also referred to R. v Chan Fu-kui ^(3), in which the Court of Appeal held that the proper reduction for a 'supergrass' was two-thirds of the normal sentence, though he conceded that this applicant did not fall into that category.

9. We could, however, observe that there was a very strong case against the applicant. Not only as he present when the police broke into the flat, while manufacturing was in process, he alone was in possession of keys to the premises. This reduces the credit to be attached to his plea.

10. He certainly deserves a considerable discount for giving evidence for the prosecution, though it is not possible to say to what extent this contributed to the conviction of his co-defendant.

11. Leroy Davies eras an exceptional case. The defendant had committed a great many robberies, to which he had confessed, and had also given information to the police, which resulted in the detention and arrest of some of the most dangerous and violent criminals in the country.

12. Chiu Shing -ming was also exceptional in that the information was so important that it could not be stated in open court.

13. Yet we feel that there was one aspect of the case to which the learned judge did not give sufficient weight. The applicant's cooperation will result in his having a difficult and dangerous time in prison and thereafter. In Leroy Davies the Lord Chief Justice agreed with counsel's submission that every year the appellant served would be the equivalent of 18 months or 2 years in a happier atmosphere and said that a sentence on an offender who has helped the police is one of intense severity.

14. For these reasons we think Mr. Alderice is right and that the sentence should be reduced to 10 years.

15. We grant the application, treat it as the appeal and allow it to that extent accordingly.

(1)    1979 Cri, App. R (p. 319)

(2)    No. 213 of 1984

(3)    CA No. 6 of 1986

Representation:

Mr. M. D. Wilson, Crown Counsel for Crown.

Mr. Gary Alderdice instructed by D.L.A. for D2/Appellant.