R. v. Chiu Pak Wing

CACC000422/1992

IN THE COURT OF APPEAL

1992, No.422
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Barnett, J.

Date of hearing: 23 June 1995

Date of judgment: 23 June 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant faced a count of possession of dangerous drugs for the purpose of unlawful trafficking. That count particularized that he on 21st June 1991 at Flat 1, 12th floor, Block A, Hamden Court, No.149 Hong Ning Road, Kwun Tong, had in his possession a dangerous drug, namely 9,772 grammes of methylamphetamine hydrochloride, for the purpose of unlawful trafficking therein. He pleaded not guilty to that charge and was, after trial before Bewley J. and a jury in the High Court, convicted and sentenced to imprisonment for 25 years.

2. Mr. McCoy, who appears for him today, does not take any issue with that sentence. A massive quantity of dangerous drugs commonly known as "ice" was involved and the sentence was one which was in accord with the sentencing policy of this court.

3. The applicant, however, is able now, some years having passed since the trial and sentence, to urge to this court that there are special considerations which place him in a category known as "the supergrass". He has given evidence in three trials in Hong Kong, the first in January 1994 when he gave evidence in The Queen v. Suchart. The defendant in that trial was convicted on counts of conspiracy to traffic in a dangerous drug and was sentenced to imprisonment for 16 years. The applicant's evidence showed that on a number of occasions between December 1968 and June 1990 the drug "ice" had been supplied to him and pointed clearly to the existence of a conspiracy. It was instrumental in securing the conviction of the defendant.

4. The second time he gave evidence was on 25th April 1994 in the trial for a person known as Ngai Yiu-kwok. This arose out of an investigation by the Independent Commission Against Corruption. The applicant's evidence was not accepted due not to any explicit finding of untruthfulness but because the magistrate felt doubt as to its reliability because of the criminal record of the applicant. The authorities accept that the applicant was giving evidence in accordance with his proof and, as far as they were concerned, his evidence at that trial was satisfactory.

5. The third trial in which he gave evidence in Hong Kong took place from 23rd March to 4th April 1995. This was the trial of a person known as Wong Jen. He gave evidence implicating that person as a major drug supplier. His evidence was the principal evidence in the prosecution case. The defendant was in the event acquitted but his evidence was up to proof and the authorities take the view that he was giving truthful evidence.

6. The applicant in 1993 while in custody was interviewed by Mainland Police officers. He gave them very substantial assistance which led to the apprehension of persons in China.

7. We are satisfied that the applicant is prepared to give as full assistance as he can to authorities investigating matters of which he has knowledge. That this is so is borne out by the continued assistance which he is giving to Canadian authorities who will be taking evidence from him shortly in Hong Kong pursuant to a Letter Rogatory. We are unable to give any substantial weight to that aspect of the matter as, at this stage, we can do no more than note his promise to give evidence. Whether he does, whether that evidence is truthful and how effective it is will be matters to be weighed by the executive when determining whether a further reduction of sentence would be justified.

8. Mr. McCoy submits that the applicant can be properly regarded as a "supergrass". He points out further that he is presently, for his own good, in protected custody in Siu Lam Psychiatric Centre which is a more restrictive form of custody than he would normally have to endure. Mr. McCoy points out also that his family has on occasion been threatened. There is no demur as to anything that has been said from Mr. Bruce who appears for the Crown.

9. We are satisfied that the applicant must be placed in the category of a true supergrass. He has given evidence on several occasions, he has co-operated throughout, he appears to have been prepared to reveal all that he knows of the operations of international drug traffickers. There can be no doubt that the information which he has supplied has given substantial assistance to the police authorities enabling them to curb drug trafficking activities. We are satisfied that the application for leave to appeal must be allowed and that the sentence should be varied from one of 25 years to one of 10 years. We order accordingly.

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. McCoy instructed by Messrs. Haldane for the Applicant.