WONG CHIU-KWONG and Another v. R.

IN THE COURT OF APPEAL

1991, No.564
(Criminal)

__________

_______________

J U D G M E N T

_______________

Bewley J.: (Delivering the judgment of the Court)

1. Both applicants appeared before Ryan J. on an indictment charging them with three offences. Count 1 alleged possession for the purpose of unlawful trafficking of 5942.98 grammes of a mixture containing 4887.34 grammes of salts of esters of morphine. Count 2 alleged possession for the same purpose of 6.14 grammes of a mixture containing 5.59 grammes of the same narcotic. Count 3 alleged possession of a 0.32 calibre self-loading pistol, two magazines and 14 rounds of ammunition without a licence.

2. The 1st applicant pleaded guilty to all three charges. He was sentenced to 15 years on Count 1, 3 years concurrent on Count 2 and 6 years consecutive on Count 3.

3. The 2nd applicant denied the charges and after trial was acquitted on Count 2 but convicted on Counts 1 and 3. He was sentenced to consecutive terms of 18 and 6 years.

4. Early on 22nd August 1990 a party of Customs Officers raided 206 Sai Yeung Choi Street. The applicants and four other adults and a little girl were present in the living room. The 2nd applicant was wearing a T-shirt and underpants. Two of the other adults were also tried on the drug charges and were acquitted.

5. The Count 1 heroin was found in three containers in one bedroom. The 2nd applicant's palm print was found on the wrapping of one of the blocks of heroin. A pair of trousers was hanging on the door of this room. Although they fitted him, the 2nd applicant said they did not belong to him. There was a document in the drawer of this room showing that the premises were in the joint names of the 1st applicant and the 2nd applicant. It was an admitted fact that they were joint tenants. A smaller quantity of heroin (Count 2) was found in the living room. A leather bag containing $41,000 and the 2nd applicant's identity card was found in this room. In the second bedroom coffee grinders, a blender and other items were found. There were traces of heroin on some of these articles. In the kitchen the pistol and the ammunition were found. They were wrapped in paper and sealed with adhesive tape. The 2nd applicant's fingerprint was on that tape.

6. When these latter items were found, the 2nd applicant is alleged to have started sobbing and calling out "Ah Ah" and then said "Ah Lui, Ah Lui", looking at the little girl held by the woman present (D3). The 2nd applicant later made a statement declaring that he was the father of the child; also that he had cohabited with D3 at that flat in February 1990 and was the father of a child later born to D3 in custody. The 1st applicant was asked about all the items and said they were his. The 2nd applicant said he did not know to whom the dangerous drugs belonged but the handbag and the money were his.

7. He was also asked about a bunch of keys found in the living room. He said they were not his and that he lived in Block 5, Jordan Valley Estate. When he was taken there, the room number that he gave was found not to exist. He then led the officers to Block 3, but was unable to find his unit. Finally he admitted that the keys were his and that they were the keys of the Sai Yeung Choi Street premises where he lived.

8. The 2nd applicant did not give evidence or call witnesses. The 1st applicant was called by D4 and said that the 2nd applicant had nothing to do with the dangerous drugs or the gun. The 1st applicant said that the 2nd applicant was not living there and was visiting his daughter at the time of the raid. He said that he himself was cohabiting with D3 and was the father of the child born in custody. D3 was looking after the 2nd applicant's daughter in the premises because the 2nd applicant's wife had left him.

9. The 1st applicant applies for leave to appeal against sentence. The 2nd applicant has abandoned his application re sentence and applies only in respect of conviction.

10. It was the Crown's submission that the only inference from this evidence was that the 2nd applicant was residing at the premises at the time of the raid, cohabiting with D3, and was in joint possession with the 1st applicant of the dangerous drugs and the gun.

11. The 2nd applicant's main ground of appeal is that there was a material irregularity in the course of the trial in that counsel for the Crown introduced into the evidence hearsay material of a highly prejudicial nature, which indicated expressly or impliedly that the 2nd applicant was a drug trafficker, or of bad character, or was then, or had been earlier, subject to investigation by Customs regarding drug trafficking activities; and that subsequently both counsel for the Crown and counsel for the 2nd applicant continued to refer to this irrelevant material.

12. Mr Grounds, who represents both applicants on appeal, relies principally on R. v. Ko Po Kun [1989]2 HKLR 8, in which this court criticised the use of the term "target person"; and on R. v. Li Chun Choi [1990]1 HKLR 665, in which the phrase "as a result of information received" was criticised in similar terms.

13. When the 2nd applicant and the escorting Customs Officers arrived at Jordan Valley Estate, they met other Customs Officers of the Drug Traffickers Property Investigation Unit. There was no evidence as to what these officers were doing there or who had summoned them to the estate. Mr Grounds' complaint concerns the repeated references to these officers during the trial by the witnesses, counsel and the judge.

14. A birth certificate had been found at the Sai Yeung Choi Street premises, in which the 2nd applicant's address was given as Block 4, Jordan Valley Estate. However, the officers who escorted the applicant to Jordan Valley Estate told the Court that they were unaware of that. If either the arresting officers or the officers of the Drug Traffickers Property Investigation Unit had known about that address, it is, we feel, reasonable to assume that they would have gone there. This was the applicant's only apparent connection with Jordan Valley Estate, apart from his assertion that he lived in Block 5, which was subsequently proved to be untrue.

15. In the circumstances, the only reasonable explanation for the presence of the other team in Jordan Valley Estate is that they were alerted by the arresting officers. That does not substantiate the allegation that their presence indicated that the applicant was subject to an earlier drug investigation; it was a logical follow-up after the finding of a gun and a large quantity of drugs. The evidence may have been of only slight relevance, indicating that the officers were following up the defendant's information that he lived in Jordan Valley Estate, but it was not prejudicial. It follows that there was no material irregularity in the witnesses' repeated references to these officers. There was therefore no need for the judge to deal with the matter in his summing up. The evidence in this case against the 2nd applicant was, in our judgment, overwhelming. The mere recitation of the facts indicates the inevitability of the guilty verdict. The 2nd applicant's application is therefore refused.

Sentence

16. The 1st applicant is now 37. He was convicted in 1985 and 1986 for burglary and other similar offences. On the second occasion he was sentenced to 9 months' imprisonment. He is unmarried.

17. The judge was faced with a difficult sentencing exercise. Count 1 and Count 3 were extremely serious charges and call for consecutive sentences, yet the sentencer had to ensure that the total sentence was not excessive.

18. The sentencing guidelines in R. v. Lau Tak-ming and Others [1990]2 HKLR 370 indicate that the proper sentence for 600 grammes of narcotic is 20 years. Silke V-P also stated that:

" Amounts of over 600 grammes fall into the 'very large quantities' category. On a reconsideration of the line taken in Cheng Yeung and in the light of the information now available to us in our judgment, in appropriate cases which fall into that category, we consider that there can be an upward increase in the 'cut off sentence' there suggested bearing in mind that the maximum sentence provided for by the legislation is life."

19. The judge took a starting point of only 18 years in respect of Count 1, no doubt bearing in mind the totality principle and the need for a consecutive sentence on Count 3. He then gave the 1st applicant three years' credit for his guilty plea. There were no other mitigating factors in respect of either defendant.

20. The six year consecutive sentence that he imposed on both applicants was the term considered appropriate after plea in R. v. Tam Kwok-chuen, AR No.14/88.

21. Mr Grounds has urged upon us that a sentence in excess of 20 years for possession of heroin should only be passed in an exceptional case, in which the vast quantity of drugs indicates that the defendant has shown an intention to wage war on the community. He stressed that Silke V-P used the words ".... there can be an upward increase" (emphasis supplied). It did not follow that the tariff necessarily escalated in relation to the quantity. Mr Grounds also submitted that any sentence over 20 years is a very heavy one and the Court should not deprive an offender of all hope of release. Finally he argued that the discount allowed for the 1st applicant's guilty plea was ungenerous.

22. Mr Grounds cited two Court of Appeal cases involving large quantities of drugs. In R. v. Fong Yuk-wa, CA No.473/91, the applicant was sentenced to 17 years after trial for conspiracy to traffick in 4217 grammes of a mixture containing 3827 grammes of narcotic. In the event counsel did not suggest that the sentence was excessive, but Mr Grounds pointed out that the Court made no comment that it was wrong.

23. In R. v. Udeoji, CA No.146/92, the applicant was convicted after trial of possessing 9134 grammes of a mixture containing 2449 grammes of narcotic. He was sentenced to 20 years. As the applicant succeeded in his application for leave to appeal against conviction, the Court made no comment on the sentence. Neither of these cases assists us.

24. The Court must have regard to the very large quantity of drugs in this case. Had the judge taken a starting point of 22 years in respect of Count 1 and added a further term of 4 years for Count 3, before discount, he could not have been criticised. On that basis, allowing for a substantial discount for the plea, we are unable to say that a total sentence of 21 years is manifestly excessive. The 1st applicant's application is also refused.