THE QUEEN v. KONG KI KONG

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JUDGMENT

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Hon. Yang, C.J.:

1. The applicant Kong Ki-kong, the second accused in the court below, pleaded guilty to one count of possession of a dangerous drug for the purpose of unlawful trafficking and was sentenced to 12 years' imprisonment. His co-accused Lam Wai-sing (the 1st accused in the court below) was sentenced to 8 years' imprisonment on a plea of guilty. Kong now seeks leave to appeal against that sentence; Lam has abandoned his application for leave to appeal against sentence.

2. The facts are that at 9 a.m. on the 25th November 1988, Customs Officers on duty at the Departure Hall in the Hong Kong International Airport saw Kong in the area of the Singapore Airlines check-in desk. Nearby was Kong's co-accused, Lam Wai-sing, waiting in a queue to check in for departure. Lam's luggage was searched and was found to contain in a false bottom 20 blocks of suspected heroin. Lam was immediately arrested.

3. Kong was then detained for enquiry. Both Kong and Lam had Singapore Airlines tickets for identical destinations, namely, H.K./Singapore/Brussels/Singapore/ H.K. They had been allocated adjacent seats.

4. Kong was arrested by two of the Customs Officers. Thirteen keys were seized from Kong. At 3.20 p.m. the same afternoon, Customs Officers used one of the 13 keys to open a grille and door into 26/F, Block 12, Mayfair Gardens, Tsing Yi Island. A quantity of suspected dangerous drug was collected by swab in Room B.

5. In various places inside the premises were also found metal moulds and mould stands, metal frames and a further stand, together with a large quantity of screws, nuts, polythene and plastic bags, superglue, drill and drill bits, plastic sheeting and adhesive tapes.

6. Under caution Kong admitted that a friend used the moulds "to make stuff" and "to press the white powder". He also admitted under caution knowledge and possession of the dangerous drug found in Lam's luggage.

7. The total quantity involved was 3405.04 grammes of a mixture containing 3182.03 grammes of salts of esters of morphine.

8. Kong had a number of previous convictions but not similar.

9. In the course of mitigation, applicant's counsel referred to a statement made by Kong to Customs Officers on the 15th June 1989, and told the judge that its contents "form a radical departure from the mitigation that I have been instructed to put before your Lordship." This statement set out the roles the applicant and others not under arrest had played. There is in this statement a paragraph containing a Customs Officer's declaration that the statement would not be used against Kong.

10. Having heard the statement read out in court, the trial judge indicated that he would treat Kong as a courier who additionally allowed his premises to be used for the preparation of very valuable dangerous drugs. With the approval of counsel for the applicant, counsel for the prosecution then re-addressed the court. She submitted that the Crown's case was that Kong's role went far beyond that of a courier, and that he had played a major role as a partner.

11. After discussing the matter further with both counsel, the judge reaffirmed his earlier view and stated that he would disregard the contents of that statement. He correctly observed however that the earlier cautioned statement referred to in the admitted facts disclosed that the applicant was more than a mere courier.

12. In passing sentence the judge treated Lam as nothing worse than a courier, but with regard to Kong, he said this:

"Kong Ki-kong: your situation is different. On the admitted facts, your premises were used for the preparation of these drugs. On the admitted facts, it appears that your premises were the premises that were used to create the false bottoms in the suitcase which was used to carry the drugs. Because of that, it seems to me that it is likely that you did know what the real quality of this material was. But in any event, the important thing is that you were associated with this business far more than in the role of a courier. Concerning the use of your premises for the preparation of this stuff, it is a very, very severe aggravating feature."

13. Adopting the starting point of 14 to 15 years' imprisonment after trial, and finding the only mitigation his plea of guilty, the judge imposed the sentence he did.

14. The first ground of appeal is that Kong's statement should not have been read out to the judge. Whilst we can sympathize with counsel's dilemma in the peculiar circumstances he found himself, in the light of the Customs Officer's declaration that the statement should not have been used, neither counsel should have addressed the court on it. Be that as it may, the judge as we have already mentioned, expressly said that he would disregard the statement and confine himself to the admitted facts. That being so, we are satisfied that there is no substance in the second ground of appeal that the judge took into account matters of aggravation beyond the scope of the charge to which the applicant had pleaded guilty.

15. The third ground of appeal is that there is a material disparity between the sentences passed on Kong and Lam. However, in the light of the substantially different roles played by the two accused, we are satisfied that the judge was justified in reflecting this factor in the sentences he imposed.

16. It is then argued that the judge had no basis upon which to find that Kong knew what the "real quality" of the drug was, i.e., number 4 heroin. But the judge did not make a firm finding of fact: he simply said that he thought it likely that the applicant knew the real quality of the drug. He then went on to make it plain that, whether that was so or not, the important factor was that the applicant's role was far more than that of a courier in that his premises were used for the preparation of the drug.

17. In the light of all the circumstances, we cannot say that the sentence imposed is manifestly excessive.

18. The application is allowed; we treat the application as the hearing of the appeal and dismiss the appeal.