HKSAR v. WONG WAI HUNG

CACC 245/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 245 OF 2002

(ON APPEAL FROM HCCC 21 OF 2002)

____________________

____________________

____________________

J U D G M E N T

____________________

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

1. In February 2004, this court (differently constituted) dismissed the applicant's appeal against his conviction for trafficking in a mixture containing 4.32 kilogrammes of heroin hydrochloride.

2. The judgment concludes by stating:

"44. One final matter to which we make reference concerns the sentence imposed upon the applicant against which sentence he has not appealed. What we say must be prefaced by a statement of the fact that we have not seen a transcript of the mitigation advanced by counsel on behalf of the applicant at trial. Nor have we seen a transcript of the judge's remarks at the time of sentence. That being so the applicant's hopes should not be raised.

45. However, subject to what those transcripts may reveal, we would invite the applicant to consider making a late application regarding his sentence if he is concerned that he was sentenced for trafficking in heroin when, as far as he was aware, the nature of the drug was more akin to 'ecstasy'."

3. We do not need to recite the facts of this case. These are set out in full in the earlier judgment (also CACC 245/2002) handed down on 27 February 2004. It suffices to say that the large quantity of heroin referred to in the indictment was found in the boot of the car the applicant had been driving at the time he was stopped by police. On arrest, he said: "Ah Sir, I do not know that it is this kind of stuff. I thought they were 'fing tau'. I did not know that it is white powder. I thought it was pills.". The applicant later confirmed these remarks by repeating this story to the police.

4. It is perhaps too obvious to state that because the applicant expressed his belief about the drugs in these terms, it did not necessarily follow that the judge was bound, for sentencing purposes, to accept it.

5. Without having any of the relevant transcripts available to us at the time the appeal against conviction was dismissed, we had wanted to ensure that there had been a proper basis for sentencing the applicant for trafficking in heroin as opposed to ecstasy which would have carried a lower penalty under the guideline tariffs set out in HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46. We have now been provided with these transcripts, and it is apparent to us, and we would have hoped that it would have been equally apparent to those advising the applicant, that Deputy High Court Judge Whaley went to considerable lengths to set out, in plain and unambiguous language, his reasons for imposing the sentence he did. Indeed, he had specifically invited defence counsel to address him on the topic and counsel's mitigation included an invitation to the judge, along the lines in R v Bilinski [1988] 86 Cr App R 146, to deal with the applicant as if there was a possibility that he may have thought the drugs in which he was trafficking were ecstasy rather than heroin.

6. Having dealt with the facts of the case and the mitigation which had been advanced, the judge said:

"I queried with (defence counsel) and invited submissions from him as to whether the English authorities to the effect that a belief by a defendant that the dangerous drug he was importing was less serious than the drug which he actually did import, that this could be a mitigating factor, depending on the circumstances, whether this might have any application in this case, bearing in mind what the defendant was alleged to have said to police officers in his cautioned statement after he was arrested in this matter.

I have received submissions from Mr Oderberg on this point, both yesterday and again supplementary submissions today. However, on reviewing the facts and circumstances which pertained in this case, it is my view that those English authorities have no application on the facts of this case.

The defence, as it was put to the prosecution witnesses in cross-examination, was to the effect that he had no idea that there were any dangerous drugs in the car which he was driving. All along he said what he was doing as far as he was concerned, was helping to deliver the car, which belonged to Cheng Sui-lun, and a document in it. I should add that the document in question, which was seized by the police as an exhibit, turned out to be a six-week-old goods manifest.

The evidence of the police officers was to the effect that after he was arrested and cautioned, the defendant said that he did not know it was white powder in the boot. He thought that they were 'fing tau' pills which he was delivering at the request of one Fa Chai to a person who would come to collect them in a taxi outside a named restaurant.

The defendant's defence, as it was put in cross-examination, to these police officers was that he had never said any such thing of his own accord. It was put to the police officers that it was the police officers who had suggested to him that in his own interests he should say that he thought they were 'fing tau' pills and that he would be in less trouble if he said this.

The jury clearly rejected any suggestion that the defendant was ignorant of the presence of dangerous drugs in the boot of the car which he was driving. Nor is there any reason to think that the jury accepted that the defendant genuinely believed that he was delivering 'fing tau' pills rather than heroin.

In all the circumstances and on the facts of this case, it would not in my view be right to sentence the defendant on the basis that he may well have believed he was delivering 'fing tau' pills rather than heroin, and I do not sentence him on that basis.

The matter is of some importance, considerable importance, of course because if 'fing tau' pills in fact refer to Ecstasy as counsel suggest it does, then the guidelines for sentencing in Ecstasy cases are very considerably less, in fact about half, indicate that the sentence of about half the severity of the sentence applicable to trafficking in heroin would be appropriate.

In any event, the English authorities in question stated that to what extent such a belief by the defendant that he was importing a less serious drug would constitute mitigation in the case would depend very much on the facts of the particular case and that an important factor was the degree of care which had been exercised by the defendant.

While I accept that this is not a case of a person with a bag next to him on the seat of the car whose contents he wilfully ignores examining, and I also accept that there was no evidence that the defendant was present when the drugs were put in the boot of the car, nevertheless a cursory check, even a cursory check, by the defendant would have immediately revealed the 16 blocks of heroin, which were in the travel bag without any packaging around them, underneath a simple layer of cardboard which was lying loosely on top.

In all these circumstances, such a professed belief by the defendant, which he professed after his arrest at the scene as was recorded in his cautioned statement, even if it could be properly attributed to him for purposes of sentence, now it would constitute very little if any mitigation in my view." (Appeal bundle pp. 198-200)

7. The judge had rightly directed the jury in the summing up that they could convict the applicant provided they were sure that to his knowledge he had been trafficking in a dangerous drug although not necessarily heroin. When it came to sentence, it was for the judge to decide the proper basis on which to sentence. No Newton hearing was necessary. The judge had considered the replies allegedly given by the applicant to the police and he had looked at these in the context of all the evidence given at trial. The applicant himself had not testified.

8. We have in mind, as Mr Zervos, SC, for the respondent, helpfully reminded us, what was stated in HKSAR v Yip Wai-yin & Anor, CACC 80/2003 (unreported), the spirit of which was faithfully adhered to by Deputy Judge Whaley. Ma CJHC said in that case:

16. While (the defendant's mistaken belief) is admittedly a factor that is relevant to sentencing, it is important in our view to stress the following:-

(1) The availability of this factor depends on the Court being provided with evidence supporting the belief on the defendant's part that he was dealing with a different type of drug. Except where this is accepted by the prosecution, it will be rare that a Court will be satisfied by a bare assertion made in mitigation alone. The defendant will therefore have to demonstrate his belief on a balance of probabilities, unless this is already clear on the evidence before the Court. The Court will be required to look at all the circumstances of the case. For example, the Court may well have to be satisfied of the degree of care exercised by the defendant:- see Bilinski at 149. Overall, it is important to bear in mind the specific context in which this factor arises, namely, that the defendant is already admittedly a drug trafficker.

(2) Even where the Court is satisfied, this would only be a factor that goes to a reduction in what otherwise would be the appropriate sentence. The defendant will not be entitled to be sentenced on the basis, using any appropriate tariff, that the drugs were in fact what he believed them to be:- see HKSAR v Chan Yiu Hong, unreported, CACC 592 of 2002, 18 September 2003, Court of Appeal; R v Gena Ngiam [2002] 1 Cr.App.R.(S) 150 at 152. In other words, where, for example, a defendant establishes to the satisfaction of the Court that he thought the drugs were Ecstasy when in fact they were Ice, he will not be entitled to be sentenced as though the drugs had been Ecstasy. He will be sentenced in accordance with the tariff for Ice but given a discount on account of his mistaken (but genuine) belief that the drugs were something else."

Conclusion

9. There is no foundation whatever for this application. Leave out of time is refused and the application is dismissed.