HKSAR v. LEUNG WAH

CACC 65/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 65 OF 2000

(ON APPEAL FROM DCCC 984 OF 1999)

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J U D G M E N T

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

Introduction

1. On 3 February 2000, the Applicant was convicted, following a trial in the District Court before Judge Saunders, of possession of heroin hydrochloride (charge 1) and trafficking in heroin hydrochloride (charge 2). The Applicant was sentenced to a total of six and a half years' imprisonment. He now seeks leave to appeal against conviction and sentence.

Conviction

2. The facts were straightforward. So far as the first charge is concerned, it was the prosecution's case that during the evening of 21 June 1999, two police officers (PW1 and PW2) were on duty on the first floor of premises on an estate in Wong Tai Sin keeping observation. At about 8.36 p.m., they saw the Applicant and another man walking along Tung Tau Tsuen Road towards their location. In view of the somewhat furtive manner of both men, the police stopped them. The Applicant tried to run away but he was immediately arrested and searched. In the right pocket of the trousers he was wearing, police found the heroin relating to the first charge. This was a mixture containing 12.64 grammes of heroin hydrochloride. The Applicant was taken to the police station where a video interview was carried out. He said that the police had taken the drugs from a flowerbed and had planted them on him.

3. At trial, the Applicant's defence on this charge was that he had been standing innocently at the side of the road, on his own, waiting for public transport. He saw the other man, with whom he had allegedly been walking, but he merely acknowledged his presence. The Applicant said that the officer had then taken him to the staircase of Wai Tung House where he was searched but nothing was found on him. He was then assaulted and the drugs were planted on him.

4. So far as the second charge was concerned, the prosecution alleged that at about 3.00 a.m. on 22 June 1999, the Applicant was taken back to his home for the purposes of searching his premises. It was agreed by the Applicant that inside a pocket of a winter coat which was hanging beside a bed in his address, the drugs, the subject of the second charge, were found together with 36 small, transparent, resealable plastic packets. The mixture contained 18.32 grammes of heroin hydrochloride. The prosecution invited the court to draw the inference that the Applicant had those drugs in his possession for the purposes of trafficking, having regard to the quantity of the drugs and the presence of the plastic packets.

5. In his defence, whilst admitting possession of the drugs found in his home, the Applicant denied that he had them for the purpose of trafficking. He said that he had been a drug addict for twenty years and that he had bought a quantity of drugs in bulk as he had received money from the sale of family property in the mainland and was able to buy at a discount.

6. The judge did not find the Applicant to be a credible witness and the Applicant's evidence raised, in the judge's mind, no doubt about the prosecution's case. In relation to the first charge, the judge rejected, for sound reasons, the allegations of assault and planting of drugs by the police. On the second charge, the judge disbelieved the Applicant's explanation for the existence of the 36 plastic packets. While he accepted that these could be used to hold coins as the Applicant had suggested in the trial, the Applicant had not explained why they were in the same coat as his drugs. On this aspect the judge said:

"His efforts to explain his coin dealing collapsed in confusion and differed at different times he made the explanation."

7. In such circumstances, it is hardly surprising that the judge convicted the Applicant on both charges.

8. In his grounds of appeal, the Applicant has repeated the points made at trial in his defence by reminding us of the nature of his case and adding today that there was no fingerprint evidence to connect him with the drugs. The matters raised were fully canvassed at trial and we can see no reason to interfere with the verdicts recorded by the judge. The application relating to conviction is dismissed.

Sentence

9. In relation to sentence, the judge imposed two years' imprisonment on the first charge and five and a half years' imprisonment on the second, ordering that four and a half years' of the latter sentence should run consecutively to the sentence on charge 1, making six and a half years in all.

10. The sentencing guidelines in R v Lau Tak-ming & Another (1990) 2 HKLR 370 provide for a tariff sentence of between five to eight years' imprisonment which will normally be imposed for quantities of narcotic in cases involving heroin weighing between 10 and 50 grammes. The judge rightly identified, as the basis of his sentence on charge 2, the bracket of sentence with which he was concerned, and perfectly properly imposed a sentence of five and a half years on this charge.

11. The difficulty arises in relation to charge 1 where the sentence of two years is, in itself, not open to criticism for the simple possession of this sizeable quantity of heroin carrying with it a high latent risk that some of the drugs might find their way into the hands of others. However, by effectively increasing the sentence by a year to arrive at six and a half years, the Applicant has received exactly the same sentence that he would have received if both charges had been in relation to trafficking. The combined narcotic weight in charges 1 and 2 was 30.96 grammes. Under the Lau Tak-ming guidelines, the normal sentence which might have been expected to be imposed for trafficking in such a weight would have been in the region of six and a half years' imprisonment. However, the Applicant was not trafficking in that full amount, only a proportion of it. For this reason, as Mr Reading, SC, for the Respondent, has very fairly conceded, the sentence as it stands must be reduced as a matter of principle.

12. The Applicant's appeal grounds which relate to his personal circumstances are matters which can carry very little weight in a case of this gravity and they take the matter no further.

Conclusion

13. For the reasons we have given, we shall grant leave in relation to sentence on this application and, treating the hearing as the appeal, we allow the appeal. We propose to reduce by six months the overall sentence the Applicant is serving. This will be achieved by ordering that four years of the sentence on charge 2 will run consecutively to the sentence of two years on charge 1. The total sentence to be served by the Applicant is therefore reduced from six and a half years to six years' imprisonment and, to that extent, the appeal is allowed.