HKSAR v. X

CACC 109/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 109 OF 2011

(ON APPEAL FROM HCCC NO. 234 OF 2010)

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BETWEEN

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Before: Hon Cheung & Yuen JJA in Court

Date of Hearing: 2 February 2012

Date of Judgment: 2 February 2012

Date of Reasons for Judgment: 8 February 2012

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REASONS FOR JUDGMENT

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Hon. Yuen JA (giving the reasons for judgment of the Court):

1.This is an application by the applicant (“X”) for leave to appeal against sentence passed by Wright J on 3 March 2011. At the conclusion of the hearing, we granted leave to appeal, treated the hearing of the application as the appeal, and reduced the appellant’s sentence on a count of manufacturing dangerous drugs to 12 years and his sentence on a count of trafficking in dangerous drugs to 9 years, to be served concurrently. Our reasons appear below.

Background

2.X was charged in the High Court with (1) manufacturing dangerous drugs and (2) trafficking in dangerous drugs.  His co-defendant (“B”) was charged with (1) conspiring with X and 3 other persons to manufacture dangerous drugs and (2) possession of dangerous drugs.   X was granted immunity from prosecution on the conspiracy charge in the circumstances set out below. 

3.On 21 February 2011 X pleaded guilty to both the charges against him.  Sentence was deferred pending the trial of B who pleaded not guilty to the two charges against him.

4.X, as well as 3 police officers, gave evidence against B.  However B was acquitted by the jury on both counts. 

5.On 3 March 2011, the judge sentenced X to 13 years and 4 months imprisonment.  The judge took a starting point of 20 years imprisonment for the 1^st charge, and 15 years imprisonment for the 2^nd charge, to be served concurrently.  He gave a reduction of one-third for X’s plea of guilty but refused to give a further discount even though X had given evidence against B.  X’s contention is that the judge should have given him a further discount.

6.The judge did not give a further discount on the ground, essentially, that X’s evidence was, “for whatever reason”, rejected by the jury.  It is therefore necessary to see what was the evidence against B.     

Evidence of police officers

7.The evidence of the 3 police officers was that they were staking out a flat on the 14^th floor of Chung Hing Building, hiding behind some fire doors.  At 9:20 pm on 15 December 2009 (the dates being material to the issues in this case), they heard a noise that sounded like the movement of the front door.  By the time they looked out through a gap in the fire doors, the front door had been closed.  They said that 8 minutes later, they heard noises from the front door again and saw X and B leaving the flat.  As X was locking the door, the police officers intercepted them.  X put up a struggle but B did not.  The flat was virtually empty except for paraphernalia for manufacturing dangerous drugs.  They were both arrested. Subsequently X’s DNA and fingerprints were found on the paraphernalia, but there was nothing in the flat to indicate that B had been inside.

8.X and B were kept separate after their arrest and were interviewed by their respective arresting officers.  Both said they had not yet entered the flat when they were intercepted by the police.  As the judge remarked in his summing-up, “this went entirely unchallenged or uncontradicted by either of the interviewing officers”.

9.Cross-examination of the police officers also revealed differences in their evidence, as the judge reminded the jury in his summing up.

Evidence of X   

10.X’s evidence was to the effect that approximately at the beginning of September 2009, he first met B and another person “C” at a park in Sham Shui Po. 

11.After about 3 weeks, B asked if he wanted to make some money and offered to teach him how to make crack cocaine. The offer was made when B was alone with X in a park in Tai Kok Tsui. 

12.After about a week, X agreed.  Although 4 weeks from the “beginning of September” would have taken one to the beginning of October, X said that this was “at about the end of the last week of October”, a difference of about a month. 

13.Following this, X said that in November, C took him to the flat in Chung Hing Building and showed him how to make crack cocaine, and that in mid-November, C introduced him to the “masterminds”, viz “D” and “E”.  They said since he would be working for them, they would provide accommodation for him.  C then took him to a flat in Chi Kong Street.

14.Three days later B came to the flat in Chi Kong Street.  There he demonstrated to X how to make crack cocaine and then gave him the keys to the flat in Chung Hing Building.

15.X said the first time he went up to the Chung Hing Building flat to make crack cocaine, B went with him and supervised him.  X then packaged it and delivered it according to the instructions of D and E.  B went with him for part of the journey but the delivery was made by X alone. 

16.X said C at first delivered the cocaine to him for converting to crack, but this was only for a few days, and he then received the cocaine himself from other people at locations given by D.  X said he made crack cocaine many times at the Chung Hing Building flat on his own.  D paid him $6,000 - $7,000 for his work.

17.X said B had been to the Chung Hing Building flat 3 times, the 1^st occasion when B supervised X’s work, a 2^nd time at the end of November or the beginning of December when B needed to obtain some cannabis, and the 3^rd and last occasion, on the day of the arrest.

18.X said that on the day of his arrest, D had instructed him to meet up with B and go up to the Chung Hing Building flat to measure the quantity of cocaine there.  X met up with B and went up to the flat.  He measured the cocaine, and they left the flat, whereupon they were intercepted by police. 

19.In cross-examination, 4 matters were elicited from X:-

(1)      he had given statements that he did not know Urdu or English, when in fact he could understand these languages to a certain extent;

(2)      he had said in his police interview that B had only been to the Chung Hing Building flat twice, and on the occasion previous to the arrest, he (X) had told B to wait outside; this was contrary to his evidence in court that B had earlier supervised his making crack cocaine there;

(3)      he had also said in his interview that he and B had not yet entered the flat when they were intercepted by police; this was contrary to his evidence in court which was that they were intercepted on leaving it (which was consistent with the evidence of the 3 police officers); and

(4)      he had said in his interview that his finger had been injured prior to the arrest; this was contradictory to a complaint that the police had “tortured” him, injuring his finger in the process.

20.Perhaps more importantly, before cross-examination of X, defence counsel indicated to the prosecution that he had information that C had in fact been imprisoned on 12 October 2009 for 9 months.  The trial was stood down for a while and the information was then verified.

21.In re-examination, X said he could not remember the dates exactly and he may have been mistaken as to time, on account of stress and tension he was suffering caused by the illness and death of his loved ones shortly after his arrest.  He said that if C had been imprisoned in October, then he (C) must have taken him (X) to the flat and introduced him to the “masterminds” 1-1.5 months before October.

22.B did not give evidence and did not call any witnesses.  He had however given a statement to the police in which he said that he had visited the flat once before, but on that occasion it was empty. This was inconsistent with both X’s statement in his interview that B had waited outside on that occasion, and his evidence in court that B had supervised him making crack cocaine there.

Summing-up

23.In his summing-up, the judge directed the jury that:

(1)     if they accepted X’s evidence, they could convict B of Count 1, and if satisfied that B was in possession of the drugs on the day of his arrest, also of Count 2;

(2)     if they did not accept X’s evidence but accepted that of the police officers that they were intercepted on leaving the flat, they should    acquit B on Count 1, but they could convict him on Count 2 if he was in possession; and

(3)     if they did not accept the evidence of X and the police officers, then they should acquit on both counts.

24.The judge directed the jury that a person would be in possession if the object was in his control and he knew it to be so, and had the intention to exercise control over it.  He also reminded the jury that the prosecution was inviting them to find that B was intercepted after having been in the flat for 8 minutes, and from that, that they could infer he must have been a party to the conspiracy (Count 1), or at least that he was guilty of possession (Count 2), for otherwise he would not have been let inside.

Jury’s verdict

25.In the event the jury unanimously acquitted B of both charges.

Judge’s reasons for sentence

26.The judge then proceeded to sentence X. There is no dispute between counsel before us that the judge adopted the correct starting point.  There is also no dispute that an appropriate discount for a defendant providing assistance to the prosecution by giving evidence against a co-defendant in this type of case would be in the region of 40-45% (including the one-third discount for pleading guilty).  The dispute is whether the judge was right to have refused to give any further discount in this case.

27.Before we come to the judge’s reasoning, we would note that the prosecution confirmed that “what [X] said was, in essence, up to proof”.   

28.The judge however refused to give any further discount because “it is plain that the jury, by its verdict, did not accept [X’s] evidence. [X’s] was the only evidence which implicated B ...”. The judge noted that there were differences between X’s previous statements and his evidence, and in particular the judge referred to X’s previous statement that both B and C recruited him but said in evidence that B was alone when he did so.  (In fact this particular difference was not made the subject of cross-examination by defence counsel.  However it is clear that what the judge was referring to was X’s references to C’s involvement – eg taking him to the flat and showing him how to make crack cocaine, and introducing him to the “masterminds” – in November when C was in prison).  The judge said that “the prosecution’s case was dependent entirely upon your evidence which, for whatever reason, was rejected by the jury”, that the principle of giving a further discount was to encourage people to give evidence truthfully, not falsely, and that the evidence that X gave was such as not to warrant any further discount than the one-third for the plea of guilty.

Analysis

29.It is of course correct that the views of the sentencing judge on the appropriateness of a further discount should be accorded much weight.  However we note that the prosecution had confirmed that X’s evidence was “up to proof”.  The prosecution was aware of the differences between his statements to the police and his evidence (except as to the date of C’s imprisonment, which point we will discuss below), and chose, despite those differences, to mount a prosecution against B on the basis that the truth lay in his evidence and not his statements.

30.As for C’s period of imprisonment, it should be noted that X did not purport to give exact dates of his involvement, nor did he give any reasons for remembering the dates.  As we noted earlier, his evidence was that he agreed to accept the work offered to him about 4 weeks from the “beginning of September”, which would have taken one to the beginning of October, but when he said that this was “at about the end of the last week of October”, this discrepancy was not picked up in chief and it was not clarified. 

31.Furthermore it is agreed that X had given C’s full name to the police in a statement some 2 months before trial. Apparently a check undertaken by the police at that stage did not reveal C’s imprisonment.  Had a proper check been undertaken then, the discrepancy in timing would have been picked up and could have been clarified before its apparently dramatic impact on this case.

32.Further we agree with Mr Dunn’s submissions that the judge had, with respect, overstated the case when he said that X’s evidence was the “only” evidence that implicated B.  In the course of his summing-up, the judge had directed the jury that if they did not believe X but did believe the police officers, they could convict B of Count 2, because if he had been inside the flat for 8 minutes, it was a reasonable inference that he was in possession of the drugs which were in full view inside.  However the jury acquitted B on both counts.  It could therefore be inferred that the jury acquitted B because they did not believe both X and the police officers when they said the pair had been intercepted after leaving the flat. 

33.Accordingly we take the view that some discount should have been given to X if only for the risk in which he placed himself by giving evidence against a co-defendant.  In all the circumstances, we considered that a 40% total discount was appropriate, and working from the starting point adopted by the judge of 20 years for Count 1 and 15 years for Count 2, we sentenced him to 12 years on Count 1 and 9 years on Count 2, to be served concurrently.        

Mr John Dunn, instructed by M.C.A. Lai & Co, assigned by the Director of Legal Aid, for the Applicant  

Miss Agnes Chan, ADPP of Department of Justice, for the Respondent