Case Detail

CACC000503A/1999

CACC 503/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 503 OF 1999

(ON APPEAL FROM HCCC 135/1999)

__________________

BETWEEN
	HKSAR	Respondent

	AND

	CHAN MAN CHAU	1st Applicant
	WONG KING CHUEN	2nd Applicant

___________________

Coram: Hon Stuart-Moore Ag. CJHC, Leong JA and Wong JA in Court

Date of Hearing: 7 November 2000

Date of Judgment: 7 November 2000

______________

J U D G M E N T

______________

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

1. The 2nd applicant Wong King-chuen and the 1st applicant Chan Man-chau were jointly charged with trafficking in a dangerous drug. The amount involved was approximately 12.58 kilogrammes of heroin hydrochloride and 156.69 kilogrammes of ice. The 2nd applicantpleaded guilty. The 1st applicant pleaded not guilty. The 2nd applicant gave evidence for the 1st applicant at his trial. The 1st applicant was convicted after trial and was sentenced to 26 years imprisonment.

2. The 2nd applicant was sentenced to 20 years imprisonment. The 2nd applicant now seeks leave to appeal against sentence.

3. The facts as admitted by the 2nd applicant were these. On the morning of 15 October 1998, police officers saw the two applicants arrive in a car at the water-front outside the Cheung Sha Wan Fish Market and wait outside the car. Sometime later, a small boat arrived and a man from the boat came ashore delivering to the two applicants four carton boxes and five nylon bags of substances. The two applicants loaded them into their car. Police officers subsequently intercepted the car and found the 2nd applicant in the seat next to the 1st applicant who was the driver. The boxes and nylon bags were found to contain what was subsequently proved to be the dangerous drugs specified in the charge.

4. In sentencing the 2nd applicant, the trial Judge, Deputy Judge Longley stated that he adopted 27 years as the starting point. He reduced the starting point by 1 year because it would be the first time the 2nd applicant was sent to prison. He then gave the 2nd applicant 6 years discount for his plea of guilty, arriving at the sentence of 20 years imprisonment.

5. The Judge explained why he did not give the 2nd applicant full one-third discount for his plea in these words:

"You, WONG King-chuen, pleaded guilty at the start of the trial, and in normal circumstances you would expect a discount of one-third to reflect that plea. That discount would reflect, amongst other things, the saving of time occasioned by your plea. In your case that benefit was substantially eroded by the fact that you gave evidence which was clearly, and in my view rightly, disbelieved by the jury, in an attempt to enable your co-defendant to escape justice. In such circumstances it would be completely inappropriate for you to receive a full discount of one-third. Instead of the discount of one-third I would otherwise have given you, I am prepared to discount your sentence by six years to reflect your plea."

6. Clearly from what the Judge said, he was reducing the normal discount for plea because the 2nd applicant gave evidence for the 1st applicant which evidence appeared to have been rejected by the jury.

7. On the first ground of appeal, Mr Wong Po-wing, counsel for the 2nd applicantsubmits that the Judge should not have penalised the 2nd applicant by reducing his discount for giving evidence for his co-defendant even though his evidence was rejected by the jury.

8. Mr Vincent Wong, counsel for the respondent submits that it was up to the Judge to exercise his discretion relating to the degree of remorse shown by the 2nd applicant and what discount for the plea should be given.

9. In our view, the purpose of discount for plea was to give the defendant credit for showing remorse and saving court time in proceedings against him. Whether he gave evidence for his co-defendant should have no effect on the credit he would have been given. Even if he does give evidence which eventually is not believed and the trial of the co-defendant has been thereby unnecessarily prolonged, much to the dislike of the trial judge, still there is no justification to penalise him for giving evidence. If the 2nd applicant had pleaded not guilty, but he did not give evidence in his own defence, instead he had chosen to give evidence for the 1st applicant and his evidence was rejected, could a longer sentence be imposed on him because of him giving evidence for the 1st applicant? The answer must be "No". If it were the opposite, a defendant who pleaded guilty and gave evidence for his co-defendant but was not believed, would be in a worse position than if he had pleaded not guilty. As Liu JA said in R v Yu Hong-kit CACC 323/1995, the fundamental concept is that "no man should be discouraged from testifying in a court of law". The authorities referred to in the respondent's argument do not indicate anything contrary to this principle.

10. In the case of R v Lawless [1998] 2 Cr App R (S) p. 176 it was held that it was wrong not to allow a defendant who had pleaded guilty a discount for his plea on the ground that he had given evidence for a co- defendant who was convicted. Thomas LJ said at p. 177:

"... It is of course well recognised that unless there are special reasons to the contrary, which sometimes there are, a person who pleads guilty is entitled to credit for his plea of guilty and for his expression of remorse. This appellant did not get that credit. The reason that he did not get it was the fact that he gave evidence on behalf of the co-accused and that evidence was rejected by the jury. As I have said, in our judgment that approach is wrong in principle. Unwittingly the recorder was in truth sentencing this appellant for something in respect of which he had not been convicted, namely telling lies in the witness box. Needless to say a co-defendant is not to be encouraged to go into the witness box and tell a pack of lies. However, it is also important that a co-defendant should not be inhibited from giving evidence on the basis that if that evidence should be disbelieved he will lose the credit which otherwise he would get for his plea."

11. As Power Ag CJ said in R v Lun Nai-kin (unreported) CACC 652/1996, the appropriate discount for a plea is one-third and although the question of discount is a matter for the discretion of the trial judge, the exercise of this discretion must be on some rational basis. We see no reason why the approach in the case of Lawless should not be followed. The fact that the 2nd applicant's evidence had been disbelieved is not inconsistent with the 2nd applicant being remorseful.

12. Mr Vincent Wong for the respondent further refers to R v Wu Pak-kun and another CA 1985/456. In that case District Judge Souyave did not give to a defendant who had pleaded guilty a discount in sentence similar to that given to other defendants who pleaded not guilty. The Judge found the defendant had no option but to plead guilty and he had given perjured evidence for his co-defendants at their trial. The Judge considered the defendant was therefore not remorseful and by giving evidence at the trial the defendant had wasted time and money. The Court of Appeal said the Judge's approach could not be criticised.

13. Based on this case, Mr Wong submits that the Judge was right in exercising his discretion not to give the usual one-third discount to the applicant who had prolonged the trial by giving evidence not accepted by the jury and that demonstrated that he had no remorse.

14. We do not think the case of Wu is applicable to the present case. That was a case before the now generally accepted principle of giving one-third discount in sentence to a defendant who had pleaded guilty had been established. That rule was necessitated to encourage those who are remorseful to come forth and plead to the charge thereby saving the time and expenses of a trial and to make clear to them the benefit normally would be derived from him taking such a course of action. Over the years since the Wu case there has been changes of circumstances with the result that an approach different from the approach of District Judge Souyave in the Wu case should now be adopted.

15. We conclude that the Judge was wrong in giving less than one-third discount to the 2nd applicant for his plea because he gave evidence for his co-defendant which evidence was disbelieved.

16. The 2nd complaint of the 2nd applicant is the 27 years starting point is too high, having regard to the minor role he played in the enterprise. Mr Wong Po-wing referred to cases with similar quantity of drugs where a lower starting point had been adopted. Suffice to say, every case depends on its own circumstances and it has been said time and again that it would serve no useful purpose by making comparison of this nature. Having regard to the enormous quantity of ice 156.69 kilograms and the very substantial quantity of heroin 12.58 kilograms, even on the basis that the 2nd applicant was not the main culprit in this trafficking enterprise, 27 years as a starting point is not manifestly excessive. This ground must fail.

17. The third ground of appeal is that the Judge did not give the 2nd applicant some discount for his assistance to the police. The assistance, the 2nd applicant said he had given to the police was he was willing to give evidence against his drug boss Cheung Ming if and when the latter was arrested and that he had given information in this regard to the police.

18. From the transcript, the Judge was told that the only information given by the 2nd applicant to the police was the name Cheung Ming and a mobile telephone number and these were mentioned in the 2nd applicant's cautioned statement. The name Cheung Ming was unknown to the police. The police had checked the mobile telephone number but with no fruitful result. The 2nd applicant had not given any witness statement to the police. Thus, it was a mere promise to give evidence and no useful information on which the police could act had been given by him. In R v Leung So-lee (unreported) CACC 724/1996 a case referred to by Mr Vincent Wong for the respondent, Mayo JA (as he then was) said in relation to the discount for a defendant who had pleaded guilty and provided information to the police:

"... If the amount of assistance is limited basically to information contained in a cautioned statement describing the circumstances of the offence it would be unusual that anything more than the usual 1/3 discount would be given.

If however as a separate exercise an offer is made to provide assistance to the police and worthwhile information is forthcoming it may well be the case that an additional discount would be given."

19. The circumstances of the present case do not justify giving the 2nd applicant further discount in this regard. The Judge was right in this respect. This ground fails.

20. We consider that the Judge was too generous in giving 1 year discount because this was the 2nd applicant's first term of imprisonment. That should not have been given in a crime as serious as the present one. We therefore conclude that the starting point should be one of 27 years. From this, the discount of one-third is to be made. The proper sentence after plea in the circumstances of the 2nd applicant's case should be one of 18 years.

21. Since we have arrived at the reasons we have given, it is not necessary for us to deal with the final ground regarding the duty of defence counsel in advising a defendant as to giving evidence for a co-defendant.

22. We grant the application for leave to appeal against sentence. We treat this hearing of the application as the appeal hearing. We allow the appeal and reduce the sentence of 20 years imprisonment to one of 18 years imprisonment.

(M Stuart-Moore)	(Arthur Leong)	(Michael Wong)
Chief Judge, High Court (Ag)	Justice of Appeal	Justice of Appeal

Representation:

Mr Vincent Wong, SGC, of the Department of Justice, for the respondent

Mr Wong Po-wing, assigned by the Legal Aid Department, for the 2nd applicant

CACC000503/1999

CACC 503/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 503 OF 1999

(ON APPEAL FROM HCCC 135/1999)

__________________

BETWEEN
	HKSAR	Respondent

	AND

	CHAN MAN CHAU	1st Applicant
	WONG KING CHUEN	2nd Applicant

___________________

Coram: Hon Stuart-Moore VP, Leong JA and Wong JA in Court

Date of Hearing: 13 July 2000

Date of Judgment: 13 July 2000

______________

J U D G M E N T

______________

Leong JA (giving the judgment of the Court):

1. The 1st applicant Chan Man-chau and the 2nd applicant Wong King-chuen were convicted, following a trial before Deputy Judge Longley and a jury, of one charge of trafficking in approximately 12 kilogrammes of heroin hydrochloride and 157 kilogrammes of ice. The 1st applicant was sentenced to 26 years of imprisonment and the 2nd applicant to 20 years of imprisonment.

2. On 15 October 1998, Narcotics Bureau police officers on surveillance duty saw the 1st applicant drive a private car to a pier outside Cheung Sha Wan Fish Market where he dropped off the 2nd applicant and then drove away. Some 28 minutes later, he returned in the same car to the pier. He got off and together with the 2nd applicant, waited there for 10 minutes. A boat later arrived at the pier and a man on the boat passed some boxes and nylon bags to the two applicants. The two applicants then loaded these goods on to the private car which they subsequently drove away. Police officers followed the car and eventually intercepted it with the two applicants and the goods on board. The boxes and nylon bags were found to contain what was subsequently proved to be the dangerous drugs specified in the charge. The 1st applicant at an interview by the police after his arrest admitted having conveyed the boxes and nylon bags but he said he did not know they contained dangerous drugs.

3. The man on the boat which brought the dangerous drugs onshore gave evidence for the prosecution. His evidence was that when the boat departed from the mainland to Hong Kong, the boxes and bags were already loaded on board and he was asked to deliver them to the man whom he would contact by phone on arrival. He was given a piece of paper with a phone number on it and this phone number was admitted by the 1st applicant to be his phone number.

4. The 1st applicant's defence was that he did not know the boxes and bags contained dangerous drugs. The 1st applicant now applies for leave to appeal against conviction. The 2nd applicantacting in person also applies for leave to appeal against sentence but this has now been adjourned.

5. Dealing with the 1st applicant's application, the first ground of appeal relates to the Judge's summing-up at p. 4 line L to O and it is this:

"Obviously, if the facts that you found to be proved beyond reasonable doubt led to other conclusions just as compelling as the guilt of the accused, then you could not be satisfied beyond reasonable doubt of his guilt of the offence charged."

6. It is submitted by Mr Boyson on behalf of the 1st applicant and relying on KWAN Ping-bong and Another [1978] HKLR 1 that it is for the prosecution to find the compellinginference and this direction was wrong because it amounted to telling the jury to acquit only if an alternative conclusion was as compelling as the guilt conclusion where it would be sufficient to acquit if the alternative inference is the only possible or probable inference and this is a reversion of the burden of proof.

7. We do not think this complaint is justified. That part of the Judge's summing-up being complained of must be viewed having regard to its context. What the Judge said in relation to inferences starting at line H on p. 4 of his summing up is this:

"... You may, however, draw inferences from facts that you find proved beyond reasonable doubt, and this is what the prosecution are asking you to do in this case. But you may only draw inferences of guilt or inferences adverse to the defendant if you are satisfied that those are the only reasonable inferences that you can draw. Otherwise you cannot draw those inferences."

8. Earlier in his summing-up at p. 2 line K to P, the Judge told the jury about the burden of proof and the standard of proof in these terms:

"... It is the prosecution that brings this charge in this trial against the defendant, and it is for the prosecution to prove his guilt. There is no burden whatsoever on the defendant to prove his innocence.

In order to prove the defendant guilty, the prosecution must establish his guilt beyond reasonable doubt. Simply put, it means that they must satisfy you so that you feel sure that he is guilty. If, having considered all the evidence, you are left with a reasonable doubt as to his guilt, then it is your duty, of course, to acquit him."

9. Having regard to the summing-up in these terms, the jury could not have been under any misunderstanding that they should acquit if they have a reasonable doubt. What the Judge said was where there was an alternatively compelling inference from the facts, it must be obvious that the charge had not been proved beyond reasonable doubt. He did not say only in such a case that the applicant should be acquitted. The first ground is unsustainable.

10. The second ground complains that the Judge invited the jury to speculate about matters not received in evidence.

11. The complaint is in respect of what the jury were told at p. 18 line B to G of the summing-up. There the Judge said:

"A further feature of the evidence of these two officers is that if they are accurate the defendant was standing with WONG talking to him in the vicinity of the tyres for around 10 minutes before the boat arrived with the drugs. This is significant, members of the jury, because it suggests, you may think, that the defendant would have known that they were waiting for something that was going to be delivered from the sea and that at least he would have been given some sort of explanation as to what it was that they were waiting for."

12. It is submitted for the 1st applicant that the Judge invited the jury to speculate on what the applicants were waiting for at the pier and suggested that they were waiting for a delivery from the sea. The Judge was also wrong, it is submitted, in requiring the applicants to give an explanation as to their purpose on the pier.

13. We disagree with that submission. What was said by the Judge was merely a view taken by him of the evidence and that was a view which the jury may or may not take into account. It cannot be an invitation to the jury to speculate. The Judge had warned the jury in clear terms not to speculate, this is at p. 4 line F to H of the summing-up:

"Do not speculate about matters that you have not received in evidence. If there is no evidence upon a particular matter, then you must accept that and reach your verdict in the absence of such evidence. Do not try to fill in the gaps by guessing about what things might have been. ..."

14. The Judge also told the jury that it was their choice whether to take opinions expressed by the Judge into account, this is at p. 1 line P to T of the summing-up:

"You have heard counsel on both sides express certain views about the evidence, and during the course of the remarks that I make to you, probably tomorrow, you may feel that, unconsciously or consciously, I am expressing my opinion about the evidence. I want to emphasis to you that you are in no way bound by any opinion, no matter who expresses it, unless that opinion accords with your own as far as the facts are concerned. ..."

15. The second ground under these circumstances cannot be sustained.

16. The circumstantial evidence of the case is that it would be open for the jury to find the 1st applicant to have knowledge that the goods he took delivery from the boat at the pier were dangerous drugs and the jury did find so.

17. We see nothing wrong with the conviction and the application for leave to appeal against conviction must be dismissed.

(M Stuart-Moore)	(Arthur Leong)	(Michael Wong)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr Vincent Wong, SGC, of the Department of Justice, for the respondent

Mr David Boyson, instructed by M/S Cheung, Chan & Chung for Chan Man-chau, 1st applicant (re: conviction)

Wong King-chuen, 2nd applicant in person (re: sentence)

HKSAR v. CHAN MAN CHAU AND ANOTHER

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