R. v. TSO KAM ON

IN THE COURT OF APPEAL

1996, No. 487

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. At the commencement of this application the court was moved to grant leave to the applicant to adduce additional evidence pursuant to s83V of the Criminal Procedure Ordinance Cap 221. Two additional items of evidence were sought to be adduced. The first was an affirmation made by the applicant in which he affirms that it had never occurred to him that the victims of these offences who were drivers might attempt to drive their vehicles while under the influence of the stupefying drugs he had administered to them.

2. The other evidence sought to be adduced was evidence that the applicant had already received compensation from a party he was suing for damages in respect of personal injuries he had suffered. Mr Mullick who represented him at his trial and mitigated for him had been instructed that the applicant had not been in a position to repay his family members who had wished to compensate the victims for the losses they had suffered as a consequence of the applicant's criminal acts.

3. Pang J had made the observation that he did not see why the applicant's family members should suffer as a consequence of the applicant's criminality. This observation had been mistaken as the applicant had received the compensation which would have enabled him to recompense his family members.

4. One of the requirements of s83V is that the court has to be satisfied that it would afford a ground for allowing the appeal.

5. We do not see how the requirement can be satisfied in this case.

6. So far as the first matter is concerned we reject the suggestion that it might be argued that it is to the applicant's credit that he did not contemplate that his victims who were drivers of vans would not attempt to drive the vehicles under the influence of the drugs which had been administered.

7. So far as the additional evidence relating to the finances of the applicant is concerned this also is a matter which is inconclusive.

8. The applicant admits that he was aware of the fact that he had received his compensation and had failed to inform his counsel of this. It would be wrong to grant leave under s83V simply on account of the applicant's inadvertence. It is also significant to add that even in the affirmation it is sought to adduce as evidence there is no statement to the effect that any payment has been effected to the family members or to the victims.

9. This application is refused.

10. On the substantive application the applicant seeks leave to appeal against the total sentence of 8 years' imprisonment imposed upon him by Pang J when he pleaded guilty to 5 counts of administering stupefying drugs with intent to commit an indictable offence namely theft.

11. These 5 offences were committed over a short period of time in early January 1996.

12. According to the agreed facts the modus operandi was similar in each case. The applicant would engage the services of a light van driver to move goods for him. When the driver would arrive he was told that it would take some time to get together the goods to be transported. They would then be offered refreshment. This refreshment would include a soft drink which was spiced with triazolam.

13. The characteristics of this drug were described by a Pharmacist in the Department of Health in this way.

14. When the victim came under the influence of the drug the applicant would relieve him of his personal possessions. The value of the items stolen from the victims was approximately $61,000.

15. In addition to this two of the victims had attempted to drive their vehicles under the influence of the drug and had crashed their vans. Very fortunately no one had sustained injuries in these accidents.

16. When mitigating to the court Mr Mullick had referred to the case of Kwok Yuk-ho (unreported) being Cr.App. 15/1996. One of the grounds of appeal argued in this application is that the judge failed to differentiate sufficiently between the circumstances of that case and the present one. In Kwok's case the scheme was rather more elaborate and the amount stolen was approximately $300,000. The judge had imposed a sentence of 14 years' imprisonment.

17. It is impracticable to attempt to compare the facts of different cases with any degree of precision as there are almost certainly significant differences in the facts of the cases. What is clear however is that the judge did impose a lighter total sentence in this case.

18. As the judge pointed out in his Reasons for Sentence the maximum for this offence is life imprisonment.

19. This was undoubtedly a serious case. It was repeated on a number of occasions. It is also not difficult to appreciate the many danagers attendant upon such a criminal exercise.

20. The sentences imposed were neither wrong in principle nor manifestly excessive. This application is dismissed.