HKSAR v. YEUNG KWOK MING AND ANOTHER

CACC 224/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 224 of 2007

(On Appeal from HCCC 5 of 2007)

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REASONS FOR JUDGMENT

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Hon. Yuen JA (giving the reasons for judgment of the Court):

1.  On 19 March 2009 we dismissed the Applicants’ applications for leave to appeal against conviction and sentence and indicated that we would hand down our reasons in due course.  We do so now.

Facts

2.  Unit 8 on the 9^th floor of Lucida Industrial Building, Wang Lung Street, Tsuen Wan had since 30 August 2006 been identified by police as being connected with the suspected storage of ketamine.  Surveillance was carried out there.

3.  On 5 September 2006, a surveillance officer saw two men (the 1^st and 2^nd Applicants) arrive at the unit with two small suitcases.  The 1^st Applicant opened the roller shutter of the unit with a key and both entered the unit at 10:23 am.  It was an admitted fact that they came out one minute later, each with a suitcase and were apprehended by police as they left the building.  In each suitcase was about 25 kg of a powder containing about 21 kg of ketamine.  The photographs exhibited at trial show that the ketamine was packed in the two suitcases in the same way - in each suitcase was a white nylon bag, inside which was a nylon and paper bag with a plastic bag of ketamine inside.  This formed the basis of the 1^st count of trafficking in dangerous drugs, to which they both pleaded guilty. 

4.  After apprehending the Applicants the police took them back to the unit.  There was no one inside and it was virtually bare except for a number of carton boxes stacked in piles of 2 or 3.  The exhibited photographs show that these carton boxes were similar in size and shape and colour.  Twenty of them were packed.  On opening them, the police found in each packed carton box a white nylon bag inside which was a nylon and paper bag with a plastic bag containing about 25 kg of a powder containing about 21 kg of ketamine.  In other words, each carton box was packed with a similar quantity of ketamine and in the same way as each of the two suitcases.  There were four cartons which had been opened and were empty.  There were also found in the unit a number of cigarette butts, with the 1^st Applicant’s DNA on two of them and the 2^nd Applicant’s on one.  The 498.94 kg of powder containing 426.04 kg of ketamine found in the unit formed the basis of the 2^nd count of trafficking in dangerous drugs, to which they both pleaded not guilty.

Verdicts

5.  After a trial before Deputy Judge Line with a jury in the High Court, both Applicants were found guilty of the 2^nd count.  They had each pleaded guilty to the 1^st count alleging joint possession of a powder containing 42.69 kg of ketamine.

6.  The judge sentenced both Applicants to a term of 14 years imprisonment for the 1^st count and 30 years imprisonment for the 2^nd count to run concurrently. 

Applications for leave to appeal against conviction

7.  Both Applicants applied for leave to appeal against conviction on the 2^nd count. 

Applications for leave to appeal against sentence

8.  The 1^st Applicant also applied for leave to appeal against sentence on the 2^nd count, and the 2^nd Applicant, against his sentence on both counts.      

1^st Applicant’s application for adjournment

9.  The 1^st Applicant sought an adjournment of the hearing before this court so that he could instruct lawyers.  He said that since his conviction 21 months ago, he had been attempting to raise funds for a lawyer to undertake his appeal but that of the $100,000 required, he still needed to raise $80,000.  Since there did not appear to be any real prospect of his raising the balance of funds required, we saw no reason for an adjournment and we proceeded to hear his applications for leave to appeal.      

10.  As for the 2^nd Applicant, he was represented by Mr HY Wong on his application for leave to appeal against conviction only. 

1^st Applicant’s grounds of appeal against conviction

11.  The 1^st Applicant’s grounds of appeal stated simply “I suggest the trial was not a fair hearing”.  No grounds were specified.  We have read the judge’s summing-up to the jury.  We did not see anything to suggest that the 1^st Applicant has not had a fair trial.

12.  The 1^st Applicant said at the hearing before us that the ketamine in the “store” did not belong to him and that he had no authority to deal with it other than to remove the drugs found in the two suitcases.  However it was not necessary for the prosecution to prove ownership, only control.  He had the key to the unit in which was stored a vast and valuable stock of ketamine.  There was no one guarding it.  He himself said that he transferred the ketamine into the suitcases from carton boxes he chose at random.  It is clear that he was obviously entrusted with the control of the stock of ketamine in the unit.      

2^nd Applicant’s grounds of appeal against conviction

13.  The 2^nd Applicant’s first ground of appeal was that the judge failed to differentiate the evidence against the 1^st Applicant from that against the 2^nd Applicant.  Mr Wong said that his second ground of appeal, that the judge had failed to sum up to the jury evidence favourable to the 2^nd Applicant,  was an extension of the first. 

14.  Mr Wong referred to the 1^st Applicant’s evidence that a person called Ah Keung had promised to pay him $10,000 to collect ketamine from the unit, given him the keys to the unit and instructed him to buy 2 suitcases and to fill them up from any of the carton boxes in the unit.  The 1^st Applicant said he recruited the 2^nd Applicant to help him.  Mr Wong emphasized that there was no evidence that the 2^nd Applicant had been told that the suitcases could be filled from any of the carton boxes in the unit. 

15.  However it should be noted that the 1^st Applicant had also alleged in his evidence that that was the first time he had been to the unit and that he had only recruited the 2^nd Applicant the day before.  This evidence was contradicted by the cigarette butts found in the unit with the DNA of the 1^st and 2^nd Applicants.  The 1^st Applicant sought to explain the cigarette butts  by saying that after the police apprehended them and took them back to the unit, they were allowed to smoke cigarettes there.  This was denied by the police witnesses.  The 2^nd Applicant did not give evidence but it was suggested by his counsel that there was enough time to smoke a cigarette between 10:23 and 10:24 that morning when they were inside the unit.

16.  Mr Wong also submitted that there was no evidence from which the jury could come to the only reasonable inference that the 2^nd Applicant knew that the rest of the carton boxes also contained ketamine. 

Discussion

17.  We do not agree that the judge had failed to differentiate the evidence against the 1^st Applicant from that against the 2^nd Applicant.  On the contrary, the  judge was at pains to tell the jury that they must consider the cases against each defendant separately.  He said:

“As I will repeat to you again in due course, you must consider the cases of the two defendants separately.  You may think it important to keep well in mind that one of them had the key to the premises and one did not” (p.32M-O).

“Remember that you must give separate consideration to their cases.  The evidence in respect of each is different.  It is not identical.  The fact that you might find one defendant guilty or not guilty does not mean you have to come to the same conclusion in respect of the other defendant” (p.44L-O).

18.  The judge had set out the basic facts supporting the prosecution case against both defendants saying: 

“The basic facts, which support the prosecution case, have not really been in dispute.  The main factual dispute is whether or not the defendants were smoking in the premises once they had been taken back there by the police.  There is a conflict of evidence concerning that matter.  How you resolve that conflict is, of course, a question of fact for you.  What if you resolved it in favour of the prosecution?  You would probably then ask yourself if there was time to smoke cigarettes in the premises on the day in question.  Paragraph 9 of the written Admitted Facts, and we will take a look at those later, conclusively sets out the relevant times.  Suppose you were to infer from this and all the evidence, which includes evidence of four empty cartons, two only being needed to fill the suitcases on 5 September, that one or other or both of them had been in the premises before” (p.33Q- p.34D).

19.  That was essentially the main evidence against the 2^nd Applicant on the 2^nd count.  The jury was entitled to reject the hypothesis that he smoked the cigarette within the one minute between 10:23 and 10:24, and it was also entitled to reject the 1^st Applicant’s evidence that the police allowed them to smoke there after their arrest.  The jury was thus entitled to find on the evidence that the 2^nd Applicant had smoked a cigarette in that unit before the day in question.  There was no evidence as to when or why he had gone to the unit previously.  The unit was used to store ketamine, all packed in cartons containing one bag each.  Four of the cartons had been opened and their contents transferred.  The contents of two had found their way to the suitcases on the day of the arrest.   Clearly the other two cartons had been emptied and its contents transferred previously.  When he was arrested after leaving the unit, the 2^nd Applicant admitted to the police that he knew that what he was carrying in the suitcase was ketamine.

20.  Mr Wong submitted that as far as knowledge of the contents of the other cartons was concerned, the difference between the case against the 1^st Applicant and that of the 2^nd Applicant was that the 1^st Applicant admitted that the cartons could be chosen at random.  He argued that the judge should have drawn this to the jury’s attention. 

21.  First, it is clear that the judge referred the jury to this piece of evidence only when he was summarizing the 1^st Applicant’s own evidence (p.43D).  It did not form part of his summary of the prosecution evidence against the 2^nd Applicant which has been set out above.  In any event in making that admission, the 1^st Applicant was simply stating the obvious.  The cartons were similar in size,  shape, colour and weight, they were piled in similar stacks and they carried no distinguishing marks.         

22.  We do not agree that there was no evidence from which the jury could come to the only reasonable inference that the 2^nd Applicant knew that the rest of the carton boxes also contained ketamine.  Although the 2^nd Applicant had said to the police that that was the first time he had been to the unit and that he had only waited outside on the 1^st Applicant’s instructions, having been told not to look inside, he had agreed to Admitted Facts stating that he had actually entered the unit and left one minute later, and there was also the evidence of the cigarette butt inside the unit showing a previous visit.  The jury would have been entitled to take into account the unlikelihood of a mere courier being allowed to enter an unguarded store containing $95 million worth of drugs and to arrive at the conclusion that both the 1^st and 2^nd Applicant had been entrusted with control of the stock.

23.  Accordingly, we saw no ground for the suggestion that the verdict was unsafe or unsatisfactory and dismissed both applicants’ applications for leave to appeal against conviction.

Applications for leave to appeal against sentence

24.  As for the sentences, the 1^st Applicant has only said that he regarded the sentence as too heavy. 

25.  The 2^nd Applicant said he was “old and may not be physically suitable for long-term imprisonment”.  He also claimed that he did not have a criminal record and was of previous good conduct, having participated in voluntary work.  The 2^nd Applicant is 54 years old and there is no evidence that his physical condition renders him unsuitable for long-term imprisonment.  Contrary to his assertion, he has a criminal record, having been convicted of handling stolen goods in 1985 for which he was sentenced to 9 months imprisonment suspended for 2 years, and a charge of theft in 1998 for which he was sentenced to 120 hours of community service.     

26.  In any event, a clear record would be of little relevance in a case of this gravity.  As the offences were committed in 2006, the sentencing guidelines in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 applied.  This provided that for 800 grammes of ecstasy and over (which also applied to ketamine), a sentence of 8 years and upwards would be appropriate.  In HKSAR v Suen Yung Yung (also known as Yuyun Sunjaya) and another CACC 509/2001, the defendants were charged with a single count of conspiracy to traffic in 9.75 kg of ecstasy.  The judge adopted a starting point of 20 years.  The 1^st defendant, who pleaded not guilty, was  sentenced to 19 years and 6 months imprisonment and the 2^nd defendant, who had pleaded guilty, was sentenced to 13 years and 4 months.  The Court of Appeal dismissed their applications for leave to appeal against sentence.                     

27.  In the present case, the quantity of ketamine was far more substantial than that in Suen Yung Yung.  In respect of the 1^st count, the quantity was 42.69 kgs with a street value of $8.5m, and in respect of the 2^nd count the quantity was 426.04 kgs with a street value of $95m.  On the basis of their having played a lesser role than the “brains or financiers”, the judge sentenced them to 14 years imprisonment on the 1^st count and 30 years for the 2^nd count. 

28.  We appreciate that as both applicants are in their 50's, these sentences mean that they will be released from prison as old men.  However that was the risk they took when they dealt with these large quantities of ketamine.  The evil that this drug does to users has been proven.  We did not consider these sentences as manifestly excessive nor did we see any error on the part of the judge in passing those sentences.

29.  Accordingly the applications for leave to appeal the sentences were also dismissed.