R. v. Tsui Hang Kwai

CACC000059/1995

IN THE COURT OF APPEAL

1995, No. 59

(Criminal)

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Coram: Hon Litton, V.-P., Bokhary and Ching, JJ.A.

Date of hearing: 25 August 1995

Date of judgment: 25 August 1995

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

1. The applicant Tsui Hang-kwai, aged 40 was convicted on one charge of trafficking in dangerous drugs after trial before Her Honour Judge Chua in the District Court and was sentenced to five years eight months' imprisonment. He originally sought leave to appeal against both conviction and sentence but in this court he has withdrawn his application in relation to the conviction. What we have to say therefore is relevant only in relation to his sentence.

2. The facts of the offence are briefly these. On 10 June 1994 at 10.25pm police officers in plain clothes stopped the applicant in the street outside Yick Yin Building, Tokwawan Road and asked where he was going. He said he was going into Yick Yin Building and when he was asked if he lived there he did not reply. A black leather bag he was carrying was searched and the police found three plastic bags inside, two bags containing heroin. The total mixture weighed 54.45 grams with a high concentration of active ingredient namely 50.41 grams of salts of esters of morphine. The third bag contained 19.84 grams of caffeine. The applicant had cash on him which totalled $28,541.

3. At the trial the applicant gave evidence. He said that in June 1994 he was earning $10,000 a month and had won the money he was carrying at mahjong. He claimed to have bought the drugs in question the previous day for his own consumption. His story was disbelieved by the court and he was accordingly convicted of trafficking in dangerous drugs.

4. The judge took as her starting point the maximum permissible in the District Court of seven years' imprisonment. The applicant, of course, was not entitled to any credit for remorse because he did not plead guilty and fought the matter to an unsuccessful conclusion. The main factor the District Court took into account in mitigation was this. After his arrest he gave information to the police which led to the arrest of two persons and a seizure of some 500 grams of heroin.

5. With the helpful assistance of Mr Saw we have received in this court greater detail in relation to the assistance which the applicant had rendered to the police.

6. This is a highly unusual case. The applicant fought the case at trial, yet earlier he had given the police full and accurate information which the police had acted upon, leading to the arrest of the two persons mentioned by the District Judge. One of them in fact was a distant clansman of his; as to the other person he, in the words of Mr Saw, "took a leave from the applicant's book" and gave further information to the police which led to other arrests. So it is quite clear that the assistance which this applicant gave was indeed extremely useful.

7. As it turned out his testimony was not needed in the High Court. We will not go into the reasons why the applicant chose not to plead guilty before the District Court. It is possible that there was a misunderstanding between him and the police to whom he was giving information. It is not necessary for us to go into that. Suffice to say that at least before this court the applicant is no longer maintaining the story that was told to the District Judge.

8. The applicant claims that by his cooperation with the police he was "buying his liberty with his life". This is perhaps an exaggeration of the circumstances under which he was labouring, but the element of risk of physical harm to himself and to members of his family is not something which can be altogether overlooked and that goes to the applicant's credit.

9. It is not entirely clear whether the story as has now emerged was fully told to the District Judge. Quite possibly it was not. The discount which the District Judge gave was this: From her starting point of seven years' imprisonment she gave a reduction of 20 per cent. In our judgment, having regard to all the circumstances, this was too low a discount. There is a policy in these courts of encouraging cooperation with the authorities. We feel that to give effect to this policy a far greater discount should have been given.

10. In these circumstances we set aside the sentence of imprisonment of five years and eight months and substitute a sentence of imprisonment of four years.

Representation:

Mr D.G. Saw (Crown Prosecutor) for Crown/Respondent

TSUI Hang-kwai - Applicant in person