HKSAR v. W

CAC C 10/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 10 OF 2011

(ON APPEAL FROM HCCC NO. 131 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the Judgment of the Court):

1.This applicant pleaded guilty in the Court of First Instance to trafficking in a substantial quantity of dangerous drugs and was sentenced to a lengthy term of imprisonment. She now seeks leave to appeal the sentence.

2.The gravamen of the appeal is that she provided assistance to the investigating authorities in respect of which the sentencing judge did not accord due recognition, for he merely reduced the sentence by one third on account of a plea of guilty and gave her no credit for the assistance.

3.In accordance with the standard procedure for such cases, we have handed down a judgment in chambers dealing with the details of her case.  Given the question of principle that arises, there is a need to say a little more than usual in the open part of the judgment but given the desirability of protecting her from identification in view of the assistance which she said she has given, this part of the judgment will seek to avoid revealing facts which will identify her.

4.The applicant is a national of a foreign jurisdiction.  On the evening of her arrest, she arrived at Hong Kong International airport on a flight from a Southeast Asian capital and in the luggage she was carrying were found the drugs.  She said that she had been provided with the luggage by a boyfriend who lived in that capital city and that he had told her what transpired to be a lie about the contents of the luggage.  What seemed unusual about the interview was the details of the man of whom she spoke; for she provided what she said were his full name, his age and year of birth, and his e-mail address and telephone numbers in that capital city; all recorded in her notebook.  She even described albeit in terms of general geographic location where in that capital city he lived.

5.This information was swiftly passed to the law enforcement authorities there who managed to ascertain the name and reported address of the subscriber of the two telephone numbers and paid a visit to that address which turned out to be a local college where no person by the name provided by the applicant was found.

6.Some months later she provided, at her instigation, a non-prejudicial statement in the course of which she furnished the police with a photograph, allegedly of the man in question, as well as the name and prisoner number of a person at one of the correctional services institutions in Hong Kong whom she said knew her supplier.  She also provided the receipt for the money which she said her boyfriend – the supplier – sent for her visa to the Mainland – and a further telephone number for him.  This information was also passed to the authorities of the foreign jurisdiction but that yielded no positive result.  The address given was vacant and one of the telephone numbers provided no longer operational; the other was registered in another person’s name and the money receipt could not be traced.

7.The gravamen of the applicant’s submission before us is that the authorities in the foreign jurisdiction did not with sufficient or efficient purpose pursue the information provided by the applicant and for that reason it is unjust not to accord to her credit for the information provided by her which, but for the suggested lack of purpose, may very well have borne fruit.

8.It has for long been the approach in this jurisdiction not to accord credit for information which in the event bears no fruit.  Mr McGowan seeks to persuade this court that policy requires that some recognition should be accorded a defendant who has genuinely cooperated with the authorities by the provision of information which could be of significant assistance, where the failure to yield results can be attributed to the inadequate pursuit by the law enforcement authorities of the information provided.

9.It is true that the particulars provided by the applicant about the supplier of the drugs were more specific than usual and if the information had resulted in the apprehension and successful prosecution of the supplier, credit to the applicant would have been justified over and above that for her plea of guilty.

10.Mr Hui, for the respondent makes a valid point which is this: it must be recognized, especially in the case of international drug trafficking, where vulnerable couriers are used, that those who engage them are precisely the type likely to instruct them as to the story to tell if they are apprehended, stories with sufficient detail to be convincing but which will be such as to lead to a dead end when investigated.  He suggests as well that there is becoming evident a trend in this jurisdiction of overseas drug couriers providing similar types of information which transpire ultimately to lead nowhere; and there is some basis within the recent experience of this court to support that concern.

11.So, where information provided in fact leads nowhere, the system opens itself to abuse if credit is given merely for the provision of detailed and specific information which in the event bears no fruit.  And “fruit” in such a case is not produced by mere identification without the assistance of the accused in actually securing, directly or indirectly, the prosecution and conviction of the person concerned.

12.That must be the general approach.  There might be wholly exceptional cases where the specific information is demonstrated to be truthful and likely to be of significant assistance to a prospective investigation which can reasonably be expected as a result of the provision of the information; where it is clear that the accused intends to testify in the event of an arrest and prosecution; but where the provision of the information is shown to bear no fruit by reason of clearly culpable inaction on the part of the law enforcement authorities.  In such circumstances – the burden of showing which would lie squarely on the accused – some credit may be due to the defendant.  We apprehend that cases of that kind would be rare.

13.This was not one of those cases.  The information provided upon her arrest was, for reasons which we have given in the judgment handed down in chambers, suspect in several regards and although one or two extra investigative steps might have been taken which were not, the fact that they were not taken does not strike us in the circumstances of this case as material.

14.Accordingly, the application is dismissed.

Mr Martin Hui SADPP & Mr Antony Leung PP, of Department of Justice, for the Respondent

Mr James McGowan, instructed by Krishnan & Tsang, for the Applicant