R. v. CHAN HEI KAM

CACC000366/1994

IN THE COURT OF APPEAL

1994, No. 366
(Criminal)

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BETWEEN
THE QUEEN
and
CHAN HEI KAM

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Coram : Hon Macdougall VP, Penlington and Liu JJA

Date of Hearing : 21 December 1994

Date of Judgment : 21 December 1994

Date of handing down of reasons : 4 January 1995

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J U D G M E N T

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Liu JA:

1. On 4 November 1993, the applicant was intercepted by the police with ninety small packets of dangerous drugs on his person. The aggregatequantity was 44.69 grammes of a mixture containing 13.89 grammes of salts of esters of morphine. He was tried on a charge of traffickingin a dangerous drug before Deputy Judge Christie in the District Court and was convicted and sentenced to three and half years’ imprisonment.

2. The applicant now applies for leave to appeal against his sentence on the ground that it was manifestly excessive and/or wrong inprinciple. The gravamen of his complaint is that he was not given a sufficient discount for having given information to the policesubsequent to his arrest that led to the seizure of over six kilogrammes of heroin and the arrest of a major drug trafficker.

3. The Deputy Judge discounted from the starting point of five years for trafficking a period of three months for the applicant’s admissionthat he had been in possession of the ninety small packets of drugs found on his person notwithstanding that he had fought the caseon the basis that he had acquired them for his own consumption and that he was not a trafficker. It was submitted by Mr McCoy, counselfor the applicant, that the discount of 25% given by the judge failed to give sufficient credit for the applicant’s valuable cooperationwith the police resulting, as it did, in the arrest of a major drug trafficker.

4. Mr Reading, counsel for the Crown, informed us that the applicant would not be required to serve his sentence in an institution withthe general prison population but would be sent to Siu Lam where special facilities exist for the protection of prisoners who informon other criminals. Mr McCoy submitted however that, even so, the applicant’s family remain at risk of underworld retribution andthat in all the circumstances a discount of at least 40% would have been appropriate.

5. We agree that giving an incentive to criminals to inform on their accomplices or other criminals is greatly to be encouraged as avaluable aid to the suppression of crime. In all the circumstances of this case we think that a 50% discount should have been given.We therefore granted the application and, treating it as the hearing of the appeal, allowed the appeal, set aside the sentence andsubstituted for it one of two and a half years’ imprisonment.

(Neil Macdougall) (R G Penlington) (B Liu)
Vice President Justice of Appeal Justice of Appeal

Representation:

Mr G.J.X. McCoy & Mr C. Chiu (Bobby Tse & Co.) for the appellant

Mr John Reading (Crown Prosecutor) for the respondent