HKSAR v. Chan Sik Wai and Another

CACC000134/1999

CACC 134/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 134 OF 1999

(ON APPEAL FROM HCCC 192 OF 1998)

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Coram: Hon. Stuart-Moore VP, Wong JA and Burrell J

Date of Hearing: 16 December 1999

Date of Judgment: 16 December 1999

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 26 February 1999, the 1st Applicant (D1 at trial) was convicted on four counts of trafficking in heroin hydrochloride following a trial in the Court of First Instance before Deputy Judge Lugar-Mawson (as he then was) and a jury. He was sentenced on 1 March 1999 to a total of 22 years' imprisonment. He now seeks leave to appeal against conviction.

2. The 2nd Applicant (D2) pleaded guilty to count 10 on the same indictment before D1's trial began. This was a joint count with D1 and effectively represented the most serious charge on the indictment. The judge sentenced D2 to 13 years' imprisonment at the conclusion of D1's trial. D2 now seeks leave to appeal against sentence.

Prosecution's case

3. The case against D1 came about as the result of a Narcotics Bureau undercover operation in which a number of officers posed as potential buyers of heroin. Three small quantities were supplied to Senior Inspector Fung as samples of the type of heroin D1 claimed that he was able to supply. These supplies, without payment, were reflected in the 3rd, 5th and 9th counts of the indictment alleging the trafficking of mixtures containing 0.24, 0.28 and 0.27 of a gramme of heroin hydrochloride respectively.

4. The last count on which D1 was convicted (count 10) alleged that on 21 February 1998, he unlawfully trafficked (with D2) in a mixture containing approximately 2.675 kg. of heroin hydrochloride. As to this, the prosecution alleged that D1 acted as a broker or middleman and used D2, amongst others, to arrange for the sale of these drugs to Senior Inspector Fung who was using the code-name "Ricky" for operational purposes.

5. Much of the evidence against D1 was contained in tape recordings of conversations with Senior Inspector Fung. Nowhere in the tapes is there any direct reference to heroin, white powder or dangerous drugs. However, other slang expressions were used which, the prosecution alleged, plainly related to heroin. In support of this aspect of their case, an expert was called to explain some of the terms used which, in themselves, were innocuous sounding words or expressions.

6. Apart from references to drugs, there were other criminal topics covered in the taped conversations. These included D1's attempt to get the undercover officer interested in a scheme to defraud insurance companies.

Defence Case

7. Whilst D1 did not give evidence himself, the defence advanced on his behalf was that a number of dishonest schemes, including insurance swindles, were the real basis of the meetings between himself and Ricky and that drugs were never contemplated. In support of this contention, the defence called Lee Lun-sang (DW1) who testified that he had met Senior Inspector Fung. He also said that D1 had knowledge that Senior Inspector Fung was a police officer and that D1 referred to the officer as "Ricky".

8. The principal difficulty faced by D1 on count 10 in his claim of innocence was that, following discussions with the undercover officers about his ability to supply what were alleged to be the dangerous drugs in count 10, these were duly discovered in the boot of a motor car in accordance with the arrangements that had been made for the supply of the heroin on 21 February 1998. These arrangements were not merely related by the undercover officers and supported on tape recordings which were contemporaneously made, but supported also by D2 who gave evidence as an accomplice of D1's involvement with him in the supply. The evidence, in other words, was overwhelming and D1, as has already been said, gave no evidence in his own defence.

D1's application

9. Against this background, D1 has advanced a number of grounds to support his application. These amount to a general feeling on his part that the trial was unfairly conducted from his point of view, and that he was convicted on evidence which did not prove his guilt to the required standard.

10. Taking his points which are set out in his grounds of appeal dated 19 March 1999, he begins by complaining that the judge wrongly accepted a prosecution application not to play to the jury some of the conversations which had been audio-taped by the police officers. He particularly complains that the jury did not hear those parts of the conversations which, as he put it, provide the whole truth behind the case. These extracts appear to refer to occasions when the police are to be heard on the tapes speaking amongst themselves, before D1 himself came onto the scene and began to speak in the officers' presence. D1 of course was represented at trial and, as is pointed out by Mr William Lam, on behalf of the Respondent, the purpose behind the editing of the tapes which the jury would hear was that prejudicial and irrelevant parts were excluded as is commonly done in jury trials where this kind of evidence is presented. As the Respondent put it, D1 has no real complaint on this basis because he was placed in a better position by having the parts that were excluded kept from the knowledge of the jury. If D1 was concerned that the whole operation was a police operation to catch him in the act of trafficking in drugs and that this could be demonstrated by what was recorded on the tapes when police officers spoke to each other, it is perfectly apparent that the jury was well aware that this had been from the outset an undercover police operation.

11. In his second ground of appeal, the Applicant complains that the trial judge refused a defence application to produce a clipping from a newspaper which referred to the term "No. 4" as meaning "class 4 obscene videos". This information does not appear from the written grounds of appeal but it emerged during the hearing today. In order to make this ground understandable, it should be understood that one of the references to the drugs in the case was to No.4. The point being made by the defence at trial was that No.4 can refer to obscene videos. In fact, the clipping from the newspaper was rightly ruled by the judge to be pure hearsay, bearing in mind that no witness was going to come forward to say that No.4 could also refer to obscene videos.

12. The third ground of appeal is not comprehensible and, when the Applicant was asked to explain it, he was also unable to recall how it came to be worded in the way that we have seen it.

13. Passing now to the fourth ground, this complains that:

"the trial judge wrongly accepted the opinion of the prosecution in refusing to allow an adjournment of the case to give time for the transcripts of the audio tapes to be read when the defence were provided with these only at the start of the trial."

14. D1 disagreed with the Respondent's view that in fact an adjournment had been granted of two days at the start of the trial, namely 1 and 2 February 1999, which would have given ample time to read the transcripts. He did, however, accept that he had been provided with the tape recordings themselves for a very considerable time before the trial began and, during the course of the hearing, it emerged that in any event there was time to read the transcripts because the first trial was aborted when the jury had to be discharged after a day.

15. In this context, D1 added a further ground today in which he complained that the judge had failed to discharge the second jury when adverse press-reporting had taken place. The matter was dealt with to some extent in summing up where the judge very properly invited the jury to disregard anything that they had read about the case in newspapers, magazines, or heard on television or the radio.

16. There are, in the grounds of appeal, a number of further points which are raised by D1 in which he complains of the way in which the prosecutor presented the case. It is apparent that the prosecutor was merely carrying out his task in a way that cannot possibly be criticised.

17. In the ninth ground of appeal, the Applicant complained that the use of an audio-tape contradicted some legal principle that the evidence should be corroborated by an independent third party. When asked to explain what he meant by this, D1 said that the officer should have revealed to him his true identity. It suffices to say that this explanation reveals the absurdity of the point raised on appeal.

18. The tenth count is that the trial judge wrongly accepted evidence taken from the Senior Inspector's notebook and file, when this had not been contemporaneously recorded. However, it is obvious that the notes were recorded after the event or the undercover officer would have revealed his identity. This is precisely what he was trying not to do.

19. The Applicant also complained that he had not been provided with a full transcript of the trial but he has provided no reasons for requesting one other than, as he put it in a letter dated 4 December 1999, that he must check the transcript of the testimony of each prosecution witness in the case before "I can make the decision whether the appeal against conviction should continue." It is difficult to imagine a case that more overwhelmingly proved the guilt of any defendant. Furthermore, having had the advantage of reading the summing up of the trial judge, it is apparent that the case was presented to the jury with the utmost fairness and that no real complaint could be made about it.

20. Accordingly, D1's application relating to conviction is dismissed.

D2's sentence application

21. Turning to the application made by D2 relating to sentence, it has been submitted by Mr Timon K.L. Shum that the judge "failed to take into account" sufficiently a number of factors which were advanced in mitigation and that the sentence was therefore excessive. Of course the test for this court is whether the sentence has been shown to have been manifestly excessive or wrong in principle. A great deal of today's proceedings has focused, therefore, upon whether 26 years as a starting point for a crime as grave as this can be described as manifestly excessive or simply as an acceptable sentence in the higher bracket for this kind of offence.

22. One particular complaint made by Mr Shum is that the judge gave too little credit to a number of matters which are set out at length in the perfected grounds of appeal. He complains also that other offenders have been treated more leniently in similar cases. It suffices to say that in summary Mr Shum submits that the starting point which the judge took was too high in comparison to some other cases of the same kind, and that the mitigation advanced on D2's behalf was not given sufficient weight.

23. It is apparent from the judge's sentencing remarks that the judge gave a very careful analysis of the many factors which affected sentence in D2's case. He dealt with D1 and D2 at the same time. He said, amongst other things:

"I accept that you were both middlemen and I accept that neither of you are linchpins in the trade of dangerous drugs."

A little later, on p.59G:

"You, Chan Ching-ming (D2) have strong mitigation. You pleaded guilty. You gave evidence against Chan Sik-wai (D1). You are entitled, because of that, to expect and receive a substantial discount in a sentence you would otherwise have received.

Your counsel advances an argument to me that you are a 'supergrass' and entitled to a discount of two-thirds of the sentence you would otherwise have received. I don't agree that you are a 'supergrass'. You only offered your help to the police after the offence was committed and while you were awaiting trial. You didn't provide any information - you didn't 'grass' on anybody - during the course of commission of the offences or whilst they were being planned.

Although, as I see from your physical condition in court this morning, you have been beaten up by inmates in Lai Chi Kok in the last few days after giving evidence, your co-operation with the police was not done at any personal danger to yourself at the time you co-operated, so you are not a supergrass. Nevertheless, you have, as I have said, provided invaluable help to the prosecution and you will receive the appropriate discount in sentence to reflect that."

24. Pausing there, it may be that the learned judge was not entirely accurate in his assessment of what makes a person come within the category which may be properly described as a supergrass, although there is no doubt that the judge was right to have found that D2 was not in this category himself. As this court has previously said, a "supergrass", properly defined, is one who not only gives evidence against others who have been arrested as accomplices to the crime or crimes set out in a single indictment before the court, but also provides evidence against others on further crimes to which he was, more often than not, a party and which enables the police to make arrests based upon the information provided. The gravity of the crimes involved and the extent to which the accomplice has made genuine efforts to provide accurate information about other criminals, usually backed up by giving true evidence against those others, will determine whether he is truly to be regarded as a supergrass and not merely an accomplice to one or more offences, prepared to give evidence for the prosecution against the others charged in that indictment. Most supergrasses, if not all, provide evidence against others after they have been arrested and whilst they are themselves awaiting trial. They are a very unusual breed of offender and the courts have long held that such offenders can expect to be given a discount of about two-thirds of the sentence they would otherwise have received. Others who merely "grass" on their co-accused also put themselves at risk and are entitled to a substantial discount, but seldom will this exceed 50%.

25. It can be seen immediately that D2 fell well below the category of supergrass, but for slightly different reasons than those which were given by the trial judge. The result, however, is the same.

26. Returning to the judge's sentencing remarks. He went on to say in relation to D1:

"... you have mitigation also, though certainly not as strong as Chan Ching-ming's. It lies in the fact that you were the victim, or rather the target, of a police undercover operation. There's nothing wrong with police undercover operations to catch drug traffickers. It's a necessary technique, a necessary tactic of the police, and one that they must use if they are ever going to hope to control this evil trade.

From what I have heard, it's quite clear to me that you believed the undercover officer to be a genuine drug buyer. You enthusiastically went along with his suggestions and enthusiastically found dangerous drugs for him. Nevertheless, the fact that you have been the target of an undercover operation entitles you to a discount from the sentence that you would otherwise have received. In your case, it cannot be as large as the discount that Chan Ching-ming is to get."

27. This reference was important because of what the judge continued by saying in regard to D2 which was to this effect:

"Those observations don't apply in Chan Ching-ming's case because he had no direct dealings with the undercover police officer. He dealt with Chan Sik-wai. And certainly so far as his criminality is concerned, he believed, all along, that he was dealing with a genuine drug buyer. There is no question of you, Chan Ching-ming, being encouraged to commit these offences by the undercover officer."

28. The judge then stated that he found no mitigating circumstances in the personal backgrounds of D1 and D2. He was right to have said this. Each of them had previously served a long sentence of imprisonment which, in D2's case, was for trafficking in dangerous drugs.

29. The suggestion made by Mr Shum that mitigation to the effect that D2's involvement in count 10 was perhaps to be regarded as less than that of D1 is very difficult to follow, and we cannot accede to it. The fact that D2 just acted as a "middleman" is of no assistance to D2 because, if anything, it put him on a slightly higher rung than the ordinary foot-soldiers in the hierarchical ladder assuming that any distinction can properly be drawn at all. Further, there was, so far as D2 was concerned, no element of entrapment whatever.

30. The judge then went on to take 26 years as the appropriate starting point for the offence and, in D1's case, reduced that starting point to 22 years to reflect, rightly or wrongly, some measure of entrapment.

31. Only this week, in HKSAR v Lee Kwok-keung CACC 5/99, the court effectively re-affirmed the large measure of discretion involved where a trial judge must select the appropriate starting point for amounts of heroin in this range. That case was concerned with about 1.8 kg. of heroin, and this court did not criticise the trial judge's starting point of 25 years.

32. The judge in the present case concluded by saying:

"If there were no mitigation whatsoever, I would have sentenced each of you to 26 years' imprisonment which is well within the established sentencing practice. In your case, Chan Ching-ming, I am reducing that by one half to reflect your plea of guilty and the fact that you gave evidence for the prosecution. For your offence, you will go to prison for 13 years."

33. In saying this, the judge recognised D2 to have been a person who had provided useful assistance to the police and had fully co-operated with them. It is right to say that the courts are anxious to demonstrate in such cases the reward that an offender can expect to receive by imposing a sentence that is considerably below the usual tariff. We should add that whilst D2 has a considerable measure of sympathy from this court for the inexcusable assault upon him after he gave evidence, the possibility of such an event is one of the reasons why such a high discount is awarded to offenders in the category, so that they should be encouraged to come forward. We are led to believe that two of the offenders have been brought to justice.

34. In the result, it is apparent that all the material mitigating factors were borne in mind by the trial judge. We do not, despite the valiant and articulate arguments advanced by Mr Shum, find it possible to accede to his submissions, and we say this after very anxious deliberation on the part of the court. D2 was given a generous discount to which he was fully entitled in the circumstances and which properly reflected his co-operation and assistance.

35. Accordingly, this application is dismissed.

Representation:

Mr William Lam, SGC of the Department of Justice, for the Respondent.

1st Applicant (D1) in person (re: conviction).

Mr Timon K.L. Shum, instructed by Messrs H.W. Tsang & Co. for 2nd Applicant (D2) (re: sentence).