SUEN SHEK v. CHING KOON FONG AND OTHERS

1987, No. 317
(Criminal)

IN THE COURT OF APPEAL

BETHEEN

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JUDGMENT

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Jones, J.

1. The three appellants, Suen Shek (1st appellant), who was the 1st defendant at the trial, Ching Koon-fong (2nd appellant) who was the 3rd defendant and Yeung Chi-yin (3rd appellant) who was the 4th defendant, were convicted of conspiracy to traffic in dangerous drugs in May of this year. The offence involved the importation of a very large quantity of dangerous drugs.

2. The 1st appellant pleaded guilty to the count and also pleaded guilty to three other counts viz Possession of dangerous drugs for the purpose of unlawful trafficking; Possession of a poison included in Part I of the Poisons List contrary to section 23 of the Pharmacy and Poisons Ordinance and to Possession of arms and ammunition without a licence. He was sentenced to a term of imprisonment of 11 years on the first and second counts, one year's imprisonment on the third count and seven years' imprisonment on the fourth count, all the sentences to be served concurrently.

3. The 2nd appellant pleaded not guilty to the same counts but was convicted after trial and he was sentenced to 20 years' imprisonment on the first two counts, one year's imprisonment on the third count and seven years' imprisonment on the fourth count, all these sentences to be served concurrently.

4. The third appellant was only charged with the first count of conspiracy to which he pleaded guilty and was sentenced to a term of imprisonment for 17 years.

5. The appellants today seek leave to appeal against their sentences.

6. The facts reveal that the appellants, together with two other persons who were named in the indictment and other persons unknown, arranged for the shipment of the dangerous drugs to Hong Kong from Bangkok, the drugs being concealed in a shipment of other goods in some cartons marked 'fish sauce'. The drugs were imported by the shipping company of the 2^nd appellant. They were placed in a container and the shipment arrived in Hong Kong on the 14th November 1986. Before its arrival, a surveillance had been set up by officers of the Customs & Excise Department and by officers of I.C.A.C. and a video recording of the actual arrival of the shipment was made and produced in evidence at the trial. The 2nd appellant and two other conspirators had been seen by these officers before the arrival of the shipment and after the shipment had been cleared at Customs, it was taken to the Hot Hing Food Company in Kwun Tong of which the 5th defendant in the indictment was the proprietor. After the goods had been transferred there from the godown, they Here eventually transferred at the food company to a truck for transportation elsewhere. After the truck was driven away it was followed by Customs officers who intercepted it in Cha Kwo Ling Road. One of the passengers in the truck was the 1st appellant. The Customs officers seized three boxes which were inside the truck which contained the dangerous drugs whilst another contained a Colt 0.45 automatic pistol together with 22 rounds of ammunition suitable for use with the pistol. The box also contained four packets of Strychnine Hydrochloride, a Part I poison used for the manufacture of heroin, the quantity being analysed by the Government Chemist at 2.02 kilogrammes. The Government Chemist analysed the total quantity of the dangerous drugs to be as follows:

27.45 Kg. of a mixture containing 23.521 Kg. of salts of esters of morphine, which is No. 4 heroin.

5.896 Kg. of a mixture containing 5.184 Kg. of esters of morphine, which is heroin base.

The large quantity of No. 4 was capable of conversion to 235.21 Kg. of No. 3 grade heroin for sale to drug consumers and the smaller amount was capable of conversion to 56.972 Kg. of No. 3 grade heroin, a total of 292.182 Kg. of No. 3 heroin, the market value of which was estimated to be HK$21,000,000.

7. The 1^st appellant is aged 53 and he has no previous convictions. It was submitted on his behalf that tile trial judge had indicated that if the 1st appellant had not pleaded guilty, the sentence that would have been imposed would have been 20 years. Mr. Percy who appeared on his behalf cited R. v. Chan Fu-kui[1] where the Court of Appeal held that the maximum reduction for an ordinary defendant who pleads guilty and helps the police was 50% and that a defendant who is in the supergrass category can expect a maximum reduction of two-thirds. A supergrass is described as a defendant who has expressed willingness to assist the police at considerable personal risk. It is for the judge to decide this issue as a question of fact. The trial judge, in this case, did not find that the 1st appellant was a supergrass and upon the evidence, we find no reason to disturb this finding. He was an ordinary defendant who gave evidence, albeit crucial, for the Crown. There was in fact no evidence to show that he had placed himself at any risk as a result of the co-operation that he had given to the prosecuting authorities. It therefore remains to determine whether the trial judge gave sufficient weight to the appellant’s plea of guilty, his co-operation with the police and the fact that he gave evidence for the Crown.

8. In our view, the trial judge did not fall into error. The maximum reduction is only a guideline and we see no reason to interfere with the sentence imposed so far as the 1st appellant is concerned. Indeed a generous discount was given. Treating the application for leave to appeal, as the appeal we grant leave to appeal against sentence but dismiss the appeal.

9. I now come to the 3^rd appellant who was also represented by Mr. Percy. He is aged 49 and has no previous convictions. It has been submitted on his behalf that his role in the conspiracy was that of an employee of the 2nd appellant and that taking into account his age and previous good character the trial judge did not reflect this in the sentence that he imposed, namely, one of 17 years' imprisonment.

10. The 3rd appellant did not in fact plead guilty until after the jury had been empanelled. He was described by the trial judge as a vital member of the conspiracy and that he stood to gain HK$150,000 had the conspiracy been successful. However, he did not have the role of financier. Having regard to the sentences imposed on the other appellants, we are of the opinion that the sentence passed was too high and that there should be a variation so far as he is concerned by a reduction from 17 years imprisonment to 15 years imprisonment to reflect the totality of all the sentences. Treating the application as the appeal we grant the application for leave to appeal and vary the sentence accordingly from 17 years to 15 years imprisonment.

11. Finally I come to the 2nd appellant who was today represented by Mr. Poll. He is 38 years of age and has no previous convictions and the totality of his sentence was one of 20 years. The grounds of appeal that have been lodged on his behalf and argued on his behalf today contend that the trial judge failed to take into account that he had no discretion to consider his personal circumstances, and in particular the fact that he is suffering from terminal cancer. We have medical reports and also an up-to-date report indicating that he is not expected to live for more than two years. In those circumstances, it has been urged upon us that we should, as an act of mercy, reduce the sentence or alternatively pass a sentence of probation on condition that the appellant be detained in hospital. Our attention was drawn to the case of R. v. Tsui Lai Ying & Ors.[2] where as an act of mercy in another drugs case, a sentence of 20 years was reduced to one of 16 years. Although the appellant was not a financier, he took a very active role in the conspiracy. In fact, he was the main organiser for as I have said it was his shipping company that shipped the goods to Hong Kong.

12. It is our decided view that in cases of this nature where a convicted defendant is said to be ill the exercise of c1emen~y is for the Executive and not for the Courts. Having regard to the serious nature of the offences, we do not feel that the sentence imposed was a day too long and treating the application as the appeal, we give leave to appeal but dismiss the appeal against sentence.