HKSAR v. Chan Tin Yu

CACC 366/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 366 OF 2010

(ON APPEAL FROM HCCC NO. 6 OF 2009)

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BETWEEN

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Before: Hon Yeung JA and Hartmann JA in Court

Date of Hearing: 29 June 2011

Date of Judgment: 29 June 2011

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Hon Hartmann JA (giving the judgment of the Court):

1.On 24 March 2009, the applicant pleaded guilty in the Court of First Instance to a single count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the drug consisting of 4.77 kg of a crystalline solid containing 4.68 kg of methamphetamine hydrochloride, commonly called ice.

2.The applicant had been found in possession of the drug while travelling in Hong Kong.

3.Taking as his starting point a term of 25 years’ imprisonment, the judge reduced that to a term of 16 years and six months’ imprisonment, a one-third discount being given for the plea of guilty and a further discount of two months being given to account for certain matters personal to the applicant.

4.Initially, the applicant chose not to seek leave to appeal the sentence, there being nothing to suggest that the sentence imposed was manifestly excessive or wrong in principle.

5.In 2010, however, the applicant, having given information to the police related to his drug trafficking conviction, agreed to testify for the prosecution under immunity in the trial of a man named Ngie Hon Miu with whom he said he had conspired to traffic in ice.

6.Ngie appeared for trial in the Court of First Instance before Wright J and a jury.  The indictment contained two counts of conspiracy to traffic in ice, the second count being related to the 4.68 kg of ice that had been found in the possession of the applicant.  Both counts named the applicant as a co-conspirator.

7.The applicant duly testified for the prosecution and Ngie was convicted of the second count.  He was sentenced to a period of imprisonment of 27 years. In passing sentence, the judge observed that it was clear from the unanimous decision of the jury that they accepted the applicant’s evidence as being truthful and accurate.

8.In October 2010, shortly after Ngie’s conviction, the applicant sought leave to appeal against his sentence out of time.  He did so on the sole basis that he had rendered considerable assistance to the authorities by testifying against Ngie and was therefore deserving of a further reduction.

9.In Z v HKSAR (2007) 10 HKCFAR 183, the Court of Final Appeal held that where a person in the position of the applicant has not only given information to the authorities but has proceeded to give truthful and material evidence in court, it is usual to give a discount of 50%, that discount including any one-third reduction for pleading guilty.  In this regard, the Court said:

“The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one-third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information… ”

10.In respect of an appellant who had not only given information but had testified for the prosecution at trial, the court said :

“Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty).”

11.In the case now before us, as we have said, it is evident that the applicant gave evidence of material value concerning serious criminal offences and was found to have done so truthfully and accurately.  He should therefore be entitled to a 50% discount on his original sentence, reducing that sentence to one of 12 years and six months’ imprisonment.

12.There just remains the fact that the applicant has sought leave to appeal out of time.  Whether leave is granted will depend on the circumstances on each particular case.  This court has always been able to consider the merits of an application for leave to appeal when made out of time.

13.In the present case, the reasons for the failure to seek leave to apply within time are obvious and understandable.  Having agreed to assist the authorities, the applicant had to wait until Ngie’s trial took place and he was able to give evidence in that trial.  It was shortly after the conclusion of that trial, having obtained legal aid, that the applicant filed his application for leave to appeal out of time.  The reasons for the delay are therefore substantial.  To refuse leave to appeal out of time would, in our view, visit a substantial injustice on the applicant who plainly has strong grounds to appeal against sentence.

14.Accordingly, we grant leave to apply to appeal against sentence out of time.  We further grant the application itself and, treating the application as the hearing of the appeal, order that the applicant’s sentence be reduced from its original starting point of 25 years by 50% to one of 12 years and six months.

Miss Hermina Ng, PP of the Department of Justice, for the Respondent

Mr Phil Chau, instructed by Messrs Ip, Kwan & Co., assigned by Director of Legal Aid, for the Applicant