THE QUEEN v. LI MO BOON

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JUDGMENT

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Ryan J.

1. This is the judgment of the Court.

2. The appellant was charged with four counts of trafficking in a dangerous drugs. In the first, second and third charges he was the only defendant, in the fourth charge he was jointly charged with three Nepalese men.

3. The substance referred to in the first and second charges was cocaine and in respect to the third and fourth charges related to cannabis. After trial before Deputy Judge Sharwood and a jury, the appellant was convicted on the first and fourth charges and acquitted on the second and third charges.

4. The principal witness for the prosecution was Michael Gurtner who oh the 27th September 1989 had been arrested for being in possession of cocaine. He agreed to co-operate with the authorities and to act as an undercover agent for the police. In respect of this charge, he was given immunity from prosecution. On the 5th October 1989 he met with the appellant at the Ramada Inn Hotel and was told by the appellant that he could supply cocaine at a price of $22,000 per kilo and cannabis at a price of $20,000 per kilo. On the 7th October 1989 he met with the appellant at the Grand Hyatt Hotel and it was his evidence that the appellant supplied him with a bag of substance and he paid to the appellant $22,000. Gurtner gave this bag to the police and it was subsequently tested by the Government Chemist and certified to be cocaine. This is the drug that is the subject of the first charge.

5. Gurtner subsequently had two further contacts with the appellant at which time he says he received drugs from the appellant and this constituted the substances referred to in the second and third charges.

6. On the 18th November 1989 Gurtner was given $300,000 cash by the police and an arrangement was made to meet with the appellant at the Ramada Inn Hotel. Gurtner gave evidence of having met the appellant in Abe's Cafe and of giving to the appellant a key to a room in the hotel which the accused took, left and then returned some 5 to 8 minutes later saying the drugs were in the room. They left the cafe and met a Nepalese man who the accused introduced as his partner. They went to the desk where Gurtner took out the security box into which he placed the cash and the three men then went to the room at the Ramada Inn. In that room Gurtner says he saw a black bag produced. A box was found to be in that black bag which was sealed. Gurtner smelled a pellet and was of the view that it was cannabis resin. He said a word which was a pre-arranged signla to the police and the men left the room and were subsequently arrested. The contents of the box found by the police in the room was subsequently tested and certified to be cannabis resin. The police received information from the Nepalese man who had been arrested resulting in the arrest of the other two Nepalese.

7. The appellant gave evidence at the trial. He said that on the 7th October 1989 he met with Gurtner and that Gurtner had sold him $1,000 worth of cocaine and that this was the only drug transaction that he and Gurtner had.

8. In respect of the fourth charge, he said that he had been invited by Gurtner to a cocktail party at the Ramada Inn on the 17th November 1989; that they had arranged to meet the next day at the Ramada Inn with a view to Gurnter supplying him with a further quantity of cocaine.He said that it was at the initiative of Gurtner that he gave a key to a Nepalese. He agreed that they did go to a room in the Ramada Inn, but in the belief that Gurtner was to supply him with some cocaine. He said that this didn't happen and they left the room and he had no knowledge of the presence of the bag of canabis.

9. The first ground of appeal lodged by the appellant is that the case was fabricated by the man Gurtner; that he was a witness giving evidence under an immunity and was therefore a "stained" witness and should not have been believed.

10. The Deputy Judge in his summing up pointed out to the jury that Gurtner was himself a drug user and that he had also sold drugs. He reminded the jury that Gurtner was a man giving evidence under immunity in relation to his own posssession of drugs.He specifically told the jury that Gurtner's evidence had to be approached with great caution, he told them that it was for them to decide on the question of Gurtner's credibility, and that they had to be sure of Gurtner's truthfulness before being able to convict. The warning that the Deputy Judge gave in this matter was adequate. The jury were made aware of all of the matters that they had to consider in deciding on his credibility and we are satisfied that there is nothing in this ground of appeal.

11. The second ground of appeal is that there was no corroboration of Gurtner's evidence and that in respect of the first charge the police officer who gave evidence at the trial said that he had seen everything very clearly but that he had hot seen the events take place as described by Gunner.  The police officer's evidence was to the effect that he had seen the two men together at the hotel bar, but he did not claim to have seen everything clearly that had transpired between them.

12. Gurtner was an undercover agent for the police.He was not a accomplice and there was no requirement for the Deputy Judge to give an accomplice warning to the jury. As I have already said he told the jury to approach Gurtner's evidence with great caution and that they had to be sure he was telling the truth. He did not, in our view, have to go any further than this.

13. The third ground of appeal relates to the second and third charges upon which the appellant was acquitted and are not therefore relevant to this hearing.

14. The fourth ground of appeal is that the three Napelese men who were arrested in respect of the events relating to the fourth charge were not called by the prosecution or the court to give evidence. These three men had pleaded guilty to the fourth charge and of course were not witnesses who it was necessary for the posecution to call or the court to hear from. If the defence had felt that necessary, they could have applied for a body order to produce these men in court.

15. The appellant has today raised the issue of the witness statement made by Mr. Gurtner which was dated 3rd October 1989 and which related to events which took place thereafter, that is in October and November.  He suggested that Gurtner must have signed a blank piece of paper in  exchange for immunity. The appellant suggested that the Deputy Judge misled the jury in the directions he gave to them about this issue.

16. Gurtner's explanation was that it was a simple mistake and the Deputy Judge fairly put to the jury all the facts that were relevant in relation to this matter He left it to the jury to decide whether or not they accepted Gurtner's explanation.

17. The last ground of appeal is that the jury took a one-sided view of the testimony of Gurtner, that having found him not guilty on the second and third charges, he should have also been acquitted in respect of the first and fourth charges.  The Deputy Judge properly pointed out to the jury that they had to be satisfied beyond a reasonable doubt so they were sure before they convicted him on any one of the four charges. They clearly took this direction into account in coming to the verdicts that they did and while it may be difficult to understand why they came to those sepearate verdicts without knowing the working of their minds, it is quite clear that they were  property directed and reached verdicts which the evidence entitled them to return.

18. We are of the view that there is nothing in the grounds of appeal or in the matters raised by the appellant today that would justify our giving leave to appeal and accordingly it is refused.

19. Application for leave to appeal against sentence.

20. As we have said the appellant was convicted on the 6th September 1990 after trial before Deputy Judge Sharwood and the jury on a charge of trafficking in a dangerous drugs, namely 28.2 gramme of a mixture containing 14.8 gramme of cocaine hydrochloride, a salt of cocaine, and on a second charge of trafficking in a dangerous drug, nemely 12,138.10 grammes of a resinous substance containing 1,310.30 grammes of tetrahydro cannabinol, a tetrahydro derivative of cannabinol.

21. In respect of the first charge he was sentenced three years imprisonment. On the second charge he was sentenced to five years imprisonment with the sentences to be served concurrently. He now seeks leave to appeal against both terms of imprisonment.

22. The grounds advanced by the appellant are that the three Napelese who pleaded guilty to a charge similar to the fourth charge were sentenced to 3+ years imprisonment and that he has a 78 year old mother, a wife and two sons who are in need of proper care.  He says today that he was lured into the events by Gurtner, the prosecution witness, on a promise in respect of the canabis offence of $20,000 and that this was the reason why he participated; that he didn't know the canabis belonged to the Napelese men.

23. In respect of the sentence imposed on the canabis charge, the Deputy Judge quite properly referred to the Court of Appeal authority as the appropriate level of sentence in cases involving canabis; that quantities in excess of 9,000 grammes justify a term of imprisonment of four years and upwards. Having regard to the quantity involved in the fourth charge, he found the appropriate sentence to be five years imprisonment. He observed that there were no mitigating factors that would justify him departing from the prescribed guidelines and we agree with that approach.

24. In respect of the first charge which dealt with the substance cocaine, the judge felt a term of imprisonment of three years was justified and we don't disagree with that. While the dates of the two charges were some months apart and were separate events, the Deputy Judge decided to treat the two incidents as part of one on-going event and he therefore resolved to make the sentences concurrent. He would have been entitled in our view to take a slightly more vigorous approach to the sentencing, but in the circumstances we see no reason to interfere.

25. Leave to appeal against sentence is accordingly refused.