HKSAR v. Chung Chi Kuen

CACC 337/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 337 OF 2013

(ON APPEAL FROM HCCC 321/2011)

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Before: Hon Yeung VP and D Pang J in Court

Date of Hearing: 16 September 2014

Date of Judgment: 16 September 2014

Date of Reasons for Judgment: 24 September 2014

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the Reasons for Judgment of the court):

1.On 4 July 2012, before Deputy Judge McMahon in the Court of First Instance, the applicant pleaded guilty to one count of ‘trafficking in a dangerous drug’, namely 263.12 grammes of crystalline solid containing 249.09 grammes of methamphetamine hydrochloride, 9 tablets and 0.01 gramme of tablet fragments containing 0.06 gramme of methamphetamine and 55.55 grammes of a mixture containing 35.02 grammes of heroin hydrochloride. From a starting point of 13 years, he was sentenced to a one-third discounted term of 8 years and 8 months’ imprisonment. Fourteen months later, on 18 September 2013, the applicant gave notice to apply for leave to appeal against sentence out of time. The home-made ground of appeal attached to his Form XI was that he had given evidence against “the mastermind behind the scene in this case”.

THE CASE

2.The facts on which the applicant had pleaded guilty were as follows:

“1. Acting on information received, a team of police officers including [PW1 and PW2] mounted an anti-dangerous drugs operation at Yue Man Square, Kwun Tong on 2 May 2011. At 0723 hours, PW1 noticed the defendant …… behaving suspiciously …… and decided to intercept him ……

2. The defendant was searched …… and inside his shoulder bag PW1 found [the dangerous drugs in question] and an electronic scale. PW1 arrested and cautioned the defendant …... In reply, the defendant said the drugs were for self-consumption.

3. At the police station, the defendant was interviewed …… the defendant said that he had purchased heroin, ice and cocaine in Shenzhen for self-consumption and that he then took the cross-border bus back to Hong Kong. He had used the electronic scale to weigh the drugs. However, he refused to disclose the source/value of the drugs, his daily dosage or the reason for weighing the drugs.

……

5. The street value of the ice (excluding the tablet and tablet fragments and the heroin was put at $224,603.

6. The travel movement record of the defendant …… showed that the defendant left Hong Kong for China via the Lok Ma Chau Spur Line Control Point at 2107 hours on 1 May 2011 and that he had returned to Hong Kong at 0604 hours on 2 May 2011 via the Lok Ma Chau Terminal.”

3.It is undisputed that the applicant had given evidence against a man called Leung in a prosecution subsequent to his (High Court Criminal Case 423 of 2012).  The applicant’s evidence lasting the best part of 22 August 2013 was that Leung was the person who instructed him to bring the drugs into Hong Kong – the very drugs with which the applicant was arrested in Yue Man Square.

GROUND OF APPEAL

4.Now legally aided, the applicant’s ground of appeal remains the same as that stated in his Form XI.  It is pointed out that the applicant first implicated Leung in a record of interview dated 9 March 2012.  That was whilst he was on remand, awaiting trial.  Subsequent to his plea, three non-prejudicial statements were taken from him dated 29 October 2012, 15 November 2012 and 30 November 2011.  These statements formed the basis of the applicant’s evidence against Leung.

5.According to the applicant, it was Leung who telephoned and took him to Shenzhen on 1 May 2011.  There, in a hotel, Leung rented a room where the applicant received dangerous drugs from a third man.  It was arranged that Leung, who had left by himself, would show up at Yue Man Square to collect the drugs.  However, the applicant was arrested before making contact.

6.Given the assistance that the applicant had provided, particularly in giving evidence against Leung, Mr Suen of counsel submits that a further discount should now be accorded the applicant, with the result that the applicant would benefit from an overall discount of 45‑50% in sentence upon pleading guilty: HKSAR v Chan Sau-hing & Another CACC 211/2001 (unreported).  It is drawn to our attention that although out of time, the applicant’s notice to apply for leave to appeal was filed only 20 days after the conclusion of Leung’s trial (29 August 2013).

RESPONDENT’S REPLY

7.The respondent resists this application.  It is so stated in the respondent’s written submissions[1]. It is submitted that any credit given should not be significant[2].

8.Before us, Mr Li, Senior Public Prosecutor, underscores the fact that Leung, in his trial, was found not guilty of the charge that relied solely on the applicant’s evidence (Count 1).  He stresses that it was a unanimous verdict.  Only of another drug trafficking charge involving substances found in his home (Count 2) was Leung convicted[3].  Mr Li attributes this result to the questionable nature and quality of the applicant’s assistance to the authorities.  This Mr Li seeks to explain in a table of chronology which we reproduce below (the parts in parentheses being the respondent’s critique of the applicant’s action or evidence):

Date	events
2 May 2011	Applicant entered Hong Kong border at 0604 hrs.
	Arrested by the police, and verbal admission at the scene was post-recorded in police notebook.  A caution interview was also recorded in a pol 857. (The Applicant’s repeated claims in this caution statement that the drugs found on him were for his own consumption and the admitted use of the electric scale were referred to in detail in cross examining the Applicant at Leung’s trial.  The Applicant also refused to talk about the provider of the drugs in this caution interview)
13 Jul 2011	Letter from Applicant to CAPO complaining framed up by the police. (This letter was used extensively to cross examine the Applicant at Leung’s trial for the purpose of discrediting the Applicant.  The content and the use of phrases, parts of which were read out in court, would, in the Respondent’s submission, give an obvious impression that the author of this letter was talking rubbish and could not be believed)
8 Aug 2011	Applicant withdrew the CAPO complaint of “frame up” in an interview by CAPO officer. Applicant claimed that his complaint was only a tactical act to seek disclosure of certain documents from the police for his defence in the case and there was in fact no frame up by the police. Subsequent to the withdrawal of the complaint, Applicant sent another letter to CAPO asking for an interview as he could provide important clues to the case. (The withdrawal of the CAPO complaint and the subsequent letter of “frame up” were used to attack the Applicant’s credibility at Leung’s trial)
16 Sep 2011	Applicant wrote to CAPO to complain that the police conspired with trafficker(s) in a drug trafficking case and demanded for an interview.  The trafficker’s name was not mentioned.
16 Nov 2011	CAPO officer interviewed the Applicant who named the officers involved in the alleged frame up as Sgt 53903, PC 58906, PC 1557, PC 3745 and PC 3870 and stated that he in fact had no drugs on him at the time of his arrest.  The Applicant agreed for CAPO to temporarily suspend the investigation into his allegation as the case was sub-judice. (The facts that Leung was not named in the letter dated 16 September 2011 as the trafficker who had allegedly conspired with the police officers to frame up the Applicant and that the Applicant had no drugs on him at the time of his arrest were raised in cross examining the Applicant at Leung’s trial.)
12 Dec 2011	Pre-trial review.  The defence applied for and was granted new trial dates, 4th–16th of July 2012.
2012
16 Jan 2012	Leung was arrested in a flat where drugs in the second count in HCCC 423/2012 were found.
20 Feb 2012	Applicant’s trial counsel wrote to DOJ about Applicant’s intention to plead guilty to the charge.
9 Mar 2012	Applicant was interviewed under caution in which he implicated Leung who instructed him to bring the drugs back to Hong Kong from the Mainland for a reward of $3,000.
20 Mar 2012	Leung was interviewed under caution in respect of Applicant’s allegation against him. He remained silent.
2 May 2012	Applicant identified Leung in an ID parade.
9 May 2012	The Applicant’s case was listed for “plea”, but defence indicated before the hearing stated that the Applicant had changed his mind and would then be pleading not guilty to the charge.  The case was to be re-listed for trial. The Commissioner subsequently halted the investigation further into the allegation against Leung because of the Applicant’s change of intended plea.
14 Jun 2012	Pre-trial review in which the Applicant maintained his plea of not guilty.
3 Jul 2012	Defence wrote to indicate that Applicant would plead guilty to the charge.
4 Jul 2012	First day of scheduled trial.  The Applicant pleaded guilty to the charge and asked police to resume the investigation into his information on Leung.
19 Jul 2012	Applicant was sentenced to 8 years and 8 months by McMahon DHCJ.
29 Oct 2012	An NPS statement taken in respect of Leung.  (“the first NPS statement”)
15 Nov 2012	A second NPS statement taken in respect of Leung.  The content of this statement is identical to the first NPS statement except an additional paragraph concerning description of a trafficker called “****” and places “****” frequented.
30 Nov 2012	A 3rd NPS statement taken in respect of Leung.  This statement described how the Applicant first met Leung in 2010.  He met Leung at Law Yiu-sang’s place where drugs were consumed.  Leung went there to consume drugs too, and the Applicant did not allege that Leung brought drugs to that place for consumption thereat nor Leung had delivered drugs to the Applicant’s home before. (At Leung’s trial, the Applicant testified that it was Leung who brought drugs to Law Yiu‑sang’s place and that Leung had previously delivered drugs to his home.)
2013
22 Aug 2013	Applicant testified in court in respect of the 1st count of trafficking against Leung.
28 Aug 2013	Judge A Pang summed up the case for the jury.
29 Aug 2013	Jury unanimously found Leung not guilty of the 1st count and guilty of the 2nd count.

DISCUSSION

9.We are not impressed by the stance that the respondent has taken.  The prosecution were fully aware of the circumstances in which the applicant finally pleaded guilty in his own case.  They were fully aware of the circumstances in which he implicated Leung in the matter.  They, nevertheless, put the applicant forward as a credible witness, only to be unanimously disbelieved by the jury in Leung’s trial.  There being no suggestion that the applicant had departed from his non‑prejudicial statements, it is not open for the prosecution/respondent to renegade their original position, make light the applicant’s evidence and resist the applicant’s application for a further reduction in sentence.

10.Having regard to all the circumstances of the case, a further reduction amounting to an overall discount of about 45% in sentence would, in our view, be appropriate to reflect the assistance with which the applicant had provided the authorities.

JUDGMENT

11.We grant the applicant leave to appeal against his sentence out of time and treating the application as the appeal, allow the appeal and reduce the applicant’s sentence to one of 7 years and 2 months’ imprisonment.

Mr Li Hay Chit, Andrew, SPP of the Department of Justice, for the respondent

Mr Suen Kam Hee, instructed by Tsangs, assigned by Legal Aid Department, for the applicant

[1]  Respondent’s written submissions, paragraph 3.

[2]  Respondent’s written submissions, paragraph 13.

[3]  The search of Leung’s home had nothing to do with the applicant. It arose from a separate police operation.