THE QUEEN v. LEUNG CHUK LING AND ANOTHER

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JUDGMENT

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

1. The applicants, Leung Chuk Ling (D1) and Wong Sai Cheung (D2), together with three other persons (D3, D4 and D5), appeared in the High Court before Sears, J. and a jury on an indictment charging the following offences -

1st Count (D1 and D3) Conspiracy with two others named, and with other persons unknown, between 9th September and 5th December 1988 in Hong Kong and elsewhere to traffic unlawfully in dangerous drugs.

2nd Count (D1 only) : With two others named, on 16th September 1988 in Hong Kong unlawfully trafficking in dangerous drugs, namely 2,061.23 grammes of a mixture containing 1,846,89 grammes of salts of esters of morphine.

3rd Count (D1, D2 and D5) : Conspiracy with three others named, between 5th December 1988 and 24th February 1989 in Hong Kong and elsewhere to traffic in dangerous drugs, namely 13,313.60 grammes of a mixture containing 11,856.05 grammes of salts of esters of morphine.

2. On 22nd August 1990, D1 was convicted on all three counts, and D2 on the 3rd count. D3 and D4 had earlier been acquitted on the 3rd count following successful submissions of "no case to answer". The jury were unable to agree upon a verdict in respect of D5 on the same count and an appropriate order was made in relation to her.

3. On 24th August D1 was sentenced to the following terms of imprisonment: 25 years on the 1st count, 22 years on the 2nd count and 25 years on the 3rd count. The judge ordered all three sentences to run concurrently save that he directed that 3 years of the sentence imposed on the 2nd count should run consecutively to that imposed on the 1st count and that 4 years of the sentence imposed on the 3rd count should run consecutively to the sentences imposed on the 1st and 2nd counts. Thus the effective term of imprisonment which D1 was sentenced to serve totalled 32 years.

4. On the same day D2 was sentenced to a term of 25 years' imprisonment.

5. The applicants both filed applications for leave to appeal against their convictions and sentences. They were represented on their applications relating to sentence by Mr. Macrae who did not appear in the trial court. They were unrepresented in respect of their convictions. When the hearing before us began, D1 abandoned his application for leave to appeal against his convictions.

6. The conspiracies alleged in the 1st and 3rd counts were different ones, but both involved the supply of heroin to the USA market. The case for the prosecution on the 1st count was that D1 was deeply implicated in a plan to ship some 70 kilos of high grade heroin to San Francisco with a street value of approximately US$90 million, although the shipment never actually took place. As to the 3rd count, the prosecution led evidence to prove that D1 and D3 took part in another conspiracy to supply 13.3 kilos of No. 4 heroin to the USA. At the time of this conspiracy, D1 was in Vancouver and arrangements were made for D2 to hand over the heroin in Hong Kong to a man who turned out to be an undercover agent.

7. The prosecution's case in respect of the 2nd count was that D1 had supplied some 2 kilos of heroin to the undercover agent in a Hong Kong hotel as a sample of the grade of heroin which would be provided for the proposed shipment which was the subject of the conspiracy charged in the 1st count.

8. In the grounds of appeal against conviction which D2 drafted himself, he complained that the prosecution did not have sufficient evidence; that the judge did not direct the jury sufficiently on his defence and that it was unfair of the judge to link him together with D1. Before us, he repeated the defence which clearly had been rejected by the unanimous verdict of the jury, that he did not realize that the other men involved were plotting to traffic in drugs; he thought the dealing related to forged banknotes.

9. After we had heard D2's submissions, we refused him leave to appeal against his conviction. The evidence against him was overwhelming and there were no non-directions or misdirections in the summing up. The learned judge put D2's defence very fairly to the jury. There was a mass of evidence, supported by video recordings and intercepted telephone conversations, and it is not perhaps surprising that the jury found him guilty.

10. At the start of his submission to this court, Mr. Macrae acknowledged that the judge was right to sentence D1 as a principal, but he contended that D2, though not a mere courier, did not play such a prominent role.

11. Mr. Macrae referred us to a number of decisions of this court regarding appropriate sentence where large quantities of drugs were involved and submitted that the sentences on each of the applicants before us were manifestly excessive. In any event, he argued, the judge had failed sufficiently to recognise the lesser role played by D2 when his sentence was compared with the totality of the sentences imposed on D1.

12. The transcript shows with what care the learned judge considered the matter of sentence. However, in relation to the sentence imposed on Dl in respect of count 2, we accept Mr. Macrae's submission that on the evidence, the delivery of the two kilos of heroin to the undercover agent at the hotel could fairly be regarded as part and parcel of the major conspiracy charged in the 1st count, and a step in furtherance of that conspiracy. We have therefore reached the conclusion that the whole of the sentence imposed on the 2nd count should, in principle, have been ordered to run concurrently with that imposed on the 1st count.

13. This apart, nothing in any of the cases referred to us by Mr. Macrae has persuaded us that the totality of the sentences passed on D1, and the sentence to be served by D2, though severe, were manifestly excessive. The conspiracies were elaborate and involved massive quantities of drugs. D1 is 42 years of age and D2 is 36 and each played prominent roles. In the light of the huge quantity of drugs mentioned in the 3rd count, we do not think that D2 has a legitimate complaint against the length of his sentence based upon disparity having regard to the totality of the sentences D1 was ordered to serve.

14. We therefore refuse D2 leave to appeal against his sentence. we allow Dl's application for leave to appeal against sentence and treat the hearing of the application as the hearing of the appeal. We allow his appeal to the extent only of ordering the entire sentence on the 2nd count to run concurrently with the sentence on the 1st count, with the result that D1 will serve a total of 29 years' imprisonment instead of 32 years.