R v. Wong Wing Ching

1995, NO. 487
(Criminal)

Headnote

Criminal Law - sentencing - assistance and cooperation given after trial and sentence. Increased discount of 40% to 45% considered appropriate for assistance and cooperation that was useful albeit to a limited extent.

IN THE COURT OF APPEAL

1995, No. 487
(Criminal)

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Coram: Hon Nazareth, V.-P., Bokhary and Liu, JJ.A. in Court

Date of hearing: 14 May 1997

Date of delivery of judgment: 6 June 1997

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J U D G M E N T

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

1. On 22nd June 1995 the applicant pleaded guilty in the High Court before P. Chan J to the following three offences:

(a) Count 1 - trafficking in a dangerous drug, namely 36,429.62 grammes of a mixture containing 31,402.32 grammes of salts of esters of morphine (in respect of this he was sentenced to 20 years imprisonment).

(b) Count 2 - possession of a dangerous drug, namely 4.89 grammes of a mixture containing 2.76 grammes of salts of esters of morphine (in respect of this he was sentenced to 2 years imprisonment).

(c) Count 3 - trafficking in a dangerous drug, namely 5,955.33 grammes of a mixture containing 2,449.67 grammes of salts of esters of morphine and 100 tablets containing a total of 1.64 grammes of midazolam maleate, a salt of midazolam (in respect of this he was sentenced to 20 years imprisonment).

All the sentences were to run concurrently. The applicant now seeks leave to appeal against sentence.

2. The facts can be taken from the agreed summary of facts. On the morning of 31st August 1994 the police observed the applicant inside the car park at Basement 2, Phase 1 of Laguna City in Kowloon. They saw him transfer three travelling bags from Vehicle Registration No. GA7635 to the boot of Vehicle, Registration No. FS3279. He was stopped and searched by the police. Keys to Vehicle Registration No. FS3279 were found on him. Using these keys the police opened that vehicle and examined the three travelling bags and a paper bag found in the vehicle. In these, the police found 104 blocks of heroin which are the subject of the 1st count, the description being provided by the Government Chemist after analysis. The applicant was arrested and cautioned at the scene. He told the police the substance was "white powder". He admitted that keys found in vehicle FS3279 were keys to the other vehicle, GA7635 and to Flat G, 5th floor, Block 32 of Laguna City, which was used to store dangerous drugs.

3. Subsequently at police headquarters the applicant admitted under caution that he had been instructed by "his boss" to transfer the drugs from vehicle GA7635 to his own car. They were to be conveyed to Flat G, 5th floor, Block 32 of Laguna City for packaging and resale.

4. About 3.40 pm on the same day, 31st August 1994, the police entered the flat occupied by the applicant, i.e. Flat A, 17th floor, Block 32 of Laguna City. They found and seized a relatively small quantity of drugs, the subject matter of the 2nd count. Under caution the applicant admitted that he was a drug addict and said the drugs were for his own consumption.

5. After searching the applicant's flat the police went to Flat G on the 5th floor. They used the keys found in vehicle FS3279 to enter. Inside they found and seized nine blocks of heroin, numerous smaller packets and 100 tablets of midazolam maleate; these are the subject of the 3rd count. The flat contained packaging paraphernalia including a hydraulic pump for crushing drugs in block form, a mould, blenders and chemicals for diluting heroin. Fingerprints of the applicant were found on the wrapping paper of three blocks of heroin. Under caution, the applicant admitted the premises had been rented under the instruction of "his boss", and that he used the premises to dilute and re-pack the drugs for sale.

6. In sentencing him P. Chan J said this:

"The quantities involved were quite enormous. The quantities involved in the 1st and 3rd count totalled about 41 kilogrammes of mixtures, or 34 kilogrammes of salts of esters of morphine. There was a small quantity of tablets.

The 1st defendant is 31 years of age. Although he was a drug addict, he has no previous conviction on any drug offences. He finished Primary 6 and is now a transportation worker. He is married with a four-and-half year old son. I accept that the 1st defendant is not the ring leader or a mastermind, or the boss involved in these drugs. He was only engaged as a courier or a person to transport drugs from one place to another. I also accept that he was a drug addict and was easily preyed on by drug manufacturers or traffickers to assist in the trade.

I was told that the benefit to him in respect of these offences was very small compared with the quantity of the drugs. I accept that he was frank with the police upon arrest. He cooperated with the police, and is now willing to help the police if and when required. He had pleaded guilty to these charges at an early opportunity, and thus saved the court a lot of time.

Drug offences are, needless to say, very serious offences. The court has been consistently very stiff with these offences, and there are set guidelines on this type of offences. While I accept that the 1st defendant was only a courier, I think he still has to bear the consequences of his behaviour and his offences. The court still has to impose a deterrent sentence, partly to deter potential addicts or other people from helping drugs lords, and partly to send the message to them - to traffickers and manufacturers - that it will not be of any use to make use of previously innocent persons to do the job. Before the 1st defendant embarked on such activities, I am sure he should be well aware of the serious consequences.

As I said, the quantities involved here were huge. The guidelines set down by the Court of Appeal are that for 600 grammes of salts of esters of morphine, the starting point is already 20 years of imprisonment after trial. For the quantities involved in this case, in my view the starting point should be 30 years. Although I accept all the mitigating factors on his behalf, I do not see anything which would persuade me to depart from these guidelines. Doing the best I can in giving every possible allowance for all the mitigation factors, I would give him the full discount of one-third. I think in the circumstances, a total of 20 years would be appropriate.

So for the 1st count, the 1st defendant is sentenced to 20 years' imprisonment. For the 2nd count, he is sentenced to 2 years' imprisonment. For the 3rd count, he is sentenced to 20 years' imprisonment. All sentences to run concurrently."

7. Mr Daniel Marash who appeared before us for the applicant, but who did not appear for him below, submitted as his main ground in support of the application for leave to appeal against sentence, that the applicant did not receive any discount for the assistance and cooperation he provided the police and the court, which should have been given. He developed his submission in the following way. As its setting, he contended that the starting point of 30 years adopted by the judge was a bit high. He sought to demonstrate that by reference to the tariff in R v Lau Tak-ming [1990]2 HKLR 370 for very large quantities of dangerous drugs and the fact that the applicant's motive was not to profit, but to provide drugs to meet his own addiction, which was a factor that the judge could properly take into account. He sought also to rely on R v Ng Muk-kam CrApp No. 685 of 1993 unreported, which involved even larger quantities than this case, and where the offender, Mr Marash contended, played a rather more important transportation role, and yet received a sentence of 35 years from the Court of Appeal, having not pleaded guilty.

8. We have to say at once that we do not find ourselves assisted by this part of Mr Marash's submission. In particular, as this Court has had occasion to say from time to time, unlike tariffs, guidelines and principles, comparison with the sentences and facts of other cases is rarely helpful.

9. Mr Marash next turned to the sentences meted out upon two other offenders involved in the syndicate concerned, Siu and Tan. The former was said to be the applicant's "boss" and Tan somewhat higher in the hierarchy. They ended up being sentenced in a different trial to terms of 14 and 18 years respectively. Again, we do not find ourselves assisted by a comparison of these sentences. The disparity, if it can be so termed, appears to have been caused primarily by the much greater assistance they gave. In particular it was Siu's evidence that appears to have resulted in the conviction of two ringleaders with Tan "corroborating" him. One of those two ringleaders was sentenced to 30 years and the other to 25 years imprisonment. It is clear that the assistance they provided was significantly greater than that the applicant has been able to give.

10. Finally, Mr Marash came to the core of his submission, which we found rather more to the point. Turning first to the principles applicable, it is not merely guilty pleas that should be encouraged, but also cooperation and assistance that goes beyond this. That is implicit in the judgment of this Court in R v Chan Fu-kui [1986] HKLR 967 at 968 where Sir Denys Roberts observed that a reduction of 50% was a perfectly proper one for a judge to permit in an ordinary case where the defendant had pleaded and had given assistance to the prosecution in other cases.

11. In R v Sivan and ors (1988) 87 CrAppR 407 it was held that it was well-established sentencing practice that credit should be given for assistance or information given to the police or the court and that in determining the extent of such credit, regard should be had to:

(1) The nature and effect of the information imparted, i.e. did it relate to trivial or successful offences? Was the information successful in bringing to justice persons who otherwise would not have been brought to justice?

(2) The degree of assistance provided, i.e. was the defendant prepared to give evidence if necessary to bring home the information which he had provided and to assist in the conviction of other criminals; and

(3) The degree of risk to which the defendant by his actions exposed himself and his family.

12. In short the judge should tailor the sentence so as to punish the defendant but at the same time reward him so far as possible for the help he has given in order to demonstrate to others that it is worth their while to disclose the criminal activities of others for the benefit of the law-abiding public in general.

13. Turning then to the applicant's assistance and cooperation, Mr Marash submitted that the applicant had not merely admitted his part at the outset, but had provided information relating to the offence and the syndicate, and cooperated all along. Since being sentenced, he had given evidence which the authority acknowledged was valuable in the support it provided of Siu's and Tan's evidence, and in that way in bringing about the conviction of the two ringleaders. Moreover, Mr Marash submits, the applicant appears to have done so at some risk to himself demonstrated by his being kept at Siu Lam Psychiatric Centre, in which it is said prisoners at personal risk are housed.

14. Plainly, the judge allowed the applicant the usual discount of one-third in respect of his plea of guilty, in reducing the starting point of 30 years to 20 years. Equally plainly, he could not have allowed any discount in respect of the assistance and cooperation of the applicant, which we think clearly went beyond that provided in early admissions and pleas of guilty. Although the significant part of such assistance and cooperation, i.e. the evidence the applicant gave, was provided after he was sentenced, this Court can properly have regard to it (R v Sze Tak-hung [1991]1 HKLR 109; In re CW Reid [1994]2 HKLR 14).

15. Turning then to assess the additional discount that should be allowed, clearly the offences here were of a very serious nature. And, it transpires, the information and assistance the applicant provided were not instrumental in bringing to justice the other offenders, although they were useful. However, there is no question that the applicant was prepared to give evidence and in fact did so. Finally, it may be that there has been some degree of risk to which the applicant has exposed himself.

16. In these circumstances we think that the applicant clearly should receive some discount for the assistance he has given. Had all of this been provided before his sentence, we have no reason to doubt that the judge would have accorded him some discount. However, we do not think that a case has been made out for the full discount of 50%; we think that 40-45% would be appropriate.

17. Accordingly, we grant leave to appeal, and treating the hearing of the application as that of the appeal, allow the appeal, set aside the sentence of 20 years and substitute a sentence of 17 years.

Representation:

Mr Daniel Marash (M/s C.K. Tse & Kan) for the Applicant

Mr Kevin Zervos (Crown Prosecutor) for Crown/Respondent