R. v. CHENG KWOK BON

IN THE COURT OF APPEAL

1995, No. 788
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his convictions on nine counts of trafficking in dangerous drugs. He also seeks leave to appeal against the total sentence of four years' imprisonment imposed upon him.

2. The facts are very simple. The police set up a video camera outside Block 16 Shek Kip Mei Estate at 4.15pm in the afternoon on 23 August 1994 and the camera continued to operate until 9.45pm that evening. The object of the exercise was to monitor the activities of persons suspected of trafficking in dangerous drugs.

3. According to the prosecution case at 9.18pm that evening a police officer arrested the applicant who was outside Block 16 and cautioned him. The applicant was alleged to have said: "Ah Sir give me a chance don't arrest me."

4. He was then taken back to the police station and $1,135 was found on him. He was shown the video film which depicted him talking to different people who approached him and undertaking what appeared to be various transactions with them.

5. Under caution the applicant admitted that he was selling white powder to these people. There were altogether 10 transactions. The prosecution agreed that there was no case to answer in respect of one of these transactions.

6. Other people were also depicted on the video camera as apparently selling dangerous drugs. However only one other person the applicant's co-accused in the court below was charged with him. He was charged with one count of being in possession of a small quantity of dangerous drugs and two charges of trafficking and he was sentenced to altogether two-and-a-half years' imprisonment.

7. The applicant contested the admissibility of the cautioned statement that he made. He alleged grave improprieties on the part of the police officers concerned and claimed that he had only signed the statement as a consequence of his suffering from withdrawal symptoms due to his drug addiction.

8. Her Honour Judge Bokhary who presided over the trial held a voir dire. The applicant gave evidence which the judge did not believe. She was satisfied at the appropriate level that the statement was a voluntary statement and admitted it as evidence. The applicant did not give evidence in the trial as a whole and the judge was satisfied that the charges had been proved.

9. The judge was satisfied that the applicant had been trafficking in dangerous drugs on the basis of his admission that he had been selling white powder.

10. In his grounds of appeal the applicant repeats the contentions he advanced at his trial that he had only made his confession as a consequence of the oppression he was subjected to. He also claimed that there was no evidence that he had been trafficking in dangerous drugs.

11. Before us the applicant informed us that he only saw a doctor the next day. He then was administered methadone. All of this was carefully considered by the trial judge.

12. The convictions are not in any way unsafe or unsatisfactory and the application to appeal against his conviction is dismissed.

13. Mr Percy who represented the applicant on the application for leave to appeal against sentence complained that the judge did not state the starting point she had adopted or how she had proceeded from this. He also complained that the disparity between the four years' sentence imposed upon the applicant and the two-and-a-half years imposed upon his co-accused who in effect had manifested a similar degree of culpability was too great.

14. Complaint is also made that inadequate reasons were given for the sentence imposed on the applicant. It appears that the two defendants were acting in concert. This is manifest from the applicant's cautioned statement.

15. What is obvious is that the applicant was involved in nine transactions where as his co-accused was only involved in two trafficking offences and one of possession.

16. While it may well have been the case that the quantity involved was quite small it is nonetheless true that the applicant was engaged in systematic trafficking.

17. Adopting the guidelines in Lau Tak-ming [1990] 2 HKLR 370 a starting point of somewhere in the region of two years' imprisonment is appropriate for trafficking where a very small quantity of dangerous drugs is involved. Clearly where there have been a number of successive transactions such as in the present case this is a seriously aggravating factor.

18. We have however come to the conclusion that in this case a total of four years' imprisonment was excessive. We consider that a sentence of three years' imprisonment should have been imposed. We accordingly allow the application and treating it as the substantive appeal substitute a sentence of three years' imprisonment for the sentence of four years' imprisonment.