HKSAR v. MAN CHAK KUEN, ROGER

IN THE COURT OF APPEAL

1997 No.158
(Criminal)

^{____________________}

^{____________________}

^{______________________}

J U D G M E N T

^{______________________}

Power, V.-P. (giving the judgment of the Court):

1. The applicant pleaded guilty to two charges - one of trafficking in dangerous drugs and one of conspiracy to traffic in dangerous drug. The trafficking charge particularized that on 10th August 1996, at Flat B, 8th floor, Lee Wing Building, No.3 Shansi Street, Kowloon, he had trafficked in a quantity of 1,657.21 grammes of a mixtures containing 170.70 grammes of heroin hydrochloride and the conspiracy charge particularized that between 16th July and 10th August, he conspired with another person not in custody trafficked in heroin. He pleaded guilty to both of those charges and was sentenced to 7 1/2 years on the first charge and four years on the second charge and it was ordered that the sentence on the conspiracy charge was to run after service of 4 1/2 years of the sentence on the first charge. The applicant now appeals against those sentences. It is submitted by Mr. Grounds, firstly, that the trial judge was wrong in a matter of fact when he said that the applicant had admitted that several deliveries of dangerous drugs had been made.

2. The facts were that the flat where the applicant lived was being kept under observation on the day charged. The police intercepted him when he was leaving it and found keys in his person. They took him back to the flat and there, in a bedroom, a red plastic box placed next to a dressing table was found. That box contained the heroin. Also found under the dressing table was a carton box in which were several plastic bags containing chemical additives. He admitted that the red plastic bag contained the heroin and admitted that the carton box contained additives. Found with those additives was an electronic scale, a blender, a hammer and some transparent polythene bags. Under caution he said that his boss was a person named 'Ah Chung' and that he had made several delivers of dangerous drugs on behalf of Ah Chung using his private car GD 6103.

3. The additives were examined by the government chemist. They included caffeine and all were such as could be used to adulterate heroin.

4. The first ground was that the judge was wrong to have said that an admission was made of "many deliveries" when in fact the applicant admitted only "several deliveries". It is true that there was a misstatement of fact and we will bear this in mind when we come to assess sentence. It is urged by Mr. Grounds, as a second ground, that as regards the conspiracy charge there was no specific evidence as to the amount of dangerous drugs involved over the period of the conspiracy. This is correct. The third and fourth grounds can be taken together. It is submitted that the conspiracy charge probably or possibly arose out of the same transaction as the first charge and therefore concurrent sentences should have been imposed and that the applicant confessed his involvement in the conspiracy charge and that without this confession the prosecution would not have known about that involvement, certainly would not have known the extent of it.

5. As we have said in a number of cases what we are really concerned with is whether the overall sentence of 8 1/2 years was appropriate given the criminality involved. The applicant was, on his own admission, a member of a conspiracy to traffic in dangerous drugs. It is true that at the time of arrest the conspirators were only dealing with dangerous drugs in the amount charged. However the applicant admitted that there had been other quantities involved but there is nothing to establish how substantial they were.

6. Mr. Grounds says, in effect, that all couriers are in reality conspirators and that the sentence of 7 1/2 years which was imposed in relation to the first charge, the possession for the purpose of trafficking, was really a proper and adequate sentence to cover the circumstances here obtaining. The question posed by the submission is whether the offences taken together merited a sentence longer than that imposed on the trafficking offence. The clear answer in our view is that a greater sentence was called for. The applicant was not a mere courier. He was a person fully involved in a conspiracy. He admitted that he had made several deliveries thereunder. He was, further, for the purpose of the conspiracy, storing drugs. He was also storing additives, which could be used to adulterate drugs, and was storing blending equipment. It is true, and we bear this mind, because it must tell in his favour, that he freely admitted his involvement in the conspiracy and that it was this admission which led to the laying of that charge. However the sentence he received in the outcome involved only one additional year of imprisonment. This was, in our view, an overall lenient sentence. There is nothing, and we bear in mind the misstatement of fact by the judge, in our view, which makes that sentence either wrong in principle or manifestly excessive. The application must, therefore, be dismissed.