HKSAR v. Yeung San Ming

CACC000642/1998

CACC 642/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 642 OF 1998

(ON APPEAL FROM HCCC NO. 473 OF 1997)

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Coram: Hon Liu, Hon Mayo & Hon Stuart-Moore, JJ.A. in Court

Date of Hearing: 27 April 1999

Date of Judgment: 27 April 1999

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J U D G M E N T

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Liu, JA:

1. The applicant faced one count of trafficking in the Court of First Instance. He pleaded guilty and was sentenced by Deputy Judge Lugar-Mawson to a term of 15 years. The Particulars of Offence were: between 21 March 1997 and 2 June 1997 at Flat 1212, On Hei House, Siu Hei Court, Tuen Mun, the applicant unlawfully trafficked in a dangerous drug of a mixture of 2,311.68 grammes containing 1,555.63 grammes of heroin hydrochloride.

2. For his sentence, the judge adopted a starting point of 25 years. The judge took into consideration his role of a "foot soldier" and his family circumstances. His parents are deaf and dumb. His younger sister and his father have psychiatric problems. His younger sister is regularly hospitalised. He was employed but dismissed at the end of 1996. He claims to have been driven to the "white powder trade" in great financial hardship which, as the judge rightly said, provided no good excuse. His family circumstances were also, so the judge concluded, no justification for the applicant to do what he did. He was 25 and a first offender. He pleaded guilty and was remorseful. The judge took all these matters into account. Having taken into consideration also his cooperation with the police, in the end the applicant was given about 40% discount. In fact, he gave evidence against his "boss" which formed part of the incriminating evidence against him, resulting in a conviction. His assistance was reflected in the jury's verdict of the "boss". He has agreed with the police to give evidence against any drug trafficker named in the information he had supplied to the police, including the partner of the "boss".

3. This court acknowledges the inherent dangers to a person like the applicant and his family in his cooperation with the police. The applicant is willing to give evidence against drug traffickers, including the partner of the "boss". This is part of his cooperation with the authority which can be given due weight. Of course, if and when his promise is realised, that would be a matter for consideration by the Executive. The applicant's assistance given to the police which comprised his court evidence against the "boss", does not seem to have been sufficiently reflected in the discount given him in the present circumstances.

4. For encouraging a defendant to come forward to offer to assist the police and to testify in court against other drug traffickers, the usual discount after plea is a substantial one. This incentive is important for law enforcement. That trend is confirmed by Ms Anna Lai for the Secretary for Justice who supports a discount of 50%, and it is 50% discount that this court would allow the applicant. The starting point of 25 years cannot be faulted. But for the overall discount of 50%, the judge duly considered the other circumstances.

5. We allow the application, grant leave to appeal, treat the application as the appeal proper, allow the appeal and set aside the sentence. We substitute a 121/2-year sentence for the 15-years imposed upon the applicant, in effect, raising the discount from the starting point of 25 years to 50%.

Representation:

Ms Anna Y. K. Lai, SGC for Respondent.

Applicant Yeung San Ming in person.