R. v. LEE KWOK WING

IN THE COURT OF APPEAL

1995, No.669
(Criminal)

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J U D G M E N T

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

1. The applicant in this matter faced one count of offering to traffic in a dangerous drug, contrary to section 4(1)(b) and (3) of the Dangerous Drugs Ordinance. The offence was particularized: that he, between the 26th day of August 1994 and the 20th day of October 1994, in Hong Kong, offered to traffic in a dangerous drug, namely salts of esters of morphine commonly known as heroin. He pleaded not guilty and was after trial before Yeung J. and a jury found guilty and sentenced to imprisonment for 17 years. He now seeks leave to appeal against both conviction and sentence.

2. The principal witnesses called by the Crown were Mr. Ng Chun-hoi ("Ng"), who was working with the police in an undercover capacity, and an undercover police officer Mr. Kenneth Chang ("Chang"). Ng gave evidence of negotiations with the applicant, which took place in about July 1994, for the purchase of dangerous drugs. Chang was involved in these negotiations and there was evidence of a number of meetings and telephone calls. Ng said that, in reality, the subject of the discussions was dangerous drugs but the Crown conceded that dangerous drugs, as such, were not mentioned. The applicant on the other hand, and this was his defence, said that he believed that the negotiations were initially about motorcars and later about jade or furs. He said code words, not infrequently the word "goods", were normally used.

3. The applicant in his defence says that what he was really trying to do when negotiating with the two undercover agents was to obtain money from them for, it seems, services to be rendered in some sort of illicit trading which would allow him to open a casino on Hainan Island. He gave evidence as to a rather confused state of affairs which, as the negotiations proceeded, would have become even more confused when he was told by Ng that he was only to speak freely to him when code word "coconut" was used. This was done, according to the applicant, to keep Chang and his boss in the dark as to the true intention of the applicant and Ng which was to obtain money which could be used for the Casino. The applicant said that at this time he had no idea that dangerous drugs were the subject of the negotiations but thought that they were to do with smuggling or tax evasion. However he said that by 20th October 1994 he had become suspicious that in fact dangerous drugs were involved and that he then cut off contact. His defence in short was that at no time until the very end of the negotiations was he aware that what his associates were talking about was dangerous drugs. He admitted that dangerous drugs might, at times, have been mentioned, particularly in the later period, but said it was only incidentally and not in any serious way and that he certainly was not indicating that he was prepared to obtain dangerous drugs for the undercover agents.

4. The jury clearly did not accept his defence and he was found, as I have indicated, guilty as charged.

5. Mr. McCoy, who appears for the applicant today, did not pursue his first ground but relied upon his second ground which is as follows:

"The learned Judge erred in law in directing the Jury in connection with an admittedly voluntary statement made by the Appellant, by directing the Jury that if they conclude that the contents were untrue to disregard these untrue parts and if it were true to take the truthful parts into account. This direction is not a true reflection of the criminal standard of proof."

The direction appears at p.74 of the Summing-up and was in the following terms:

"If you come to the conclusion that what he said in the interview was in fact not true, then disregard such part of the record of interview. If you conclude that what he said in the interview were true, then take such part of what he said into consideration in your deliberation and place whatever weight you consider to be appropriate."

It is Mr. McCoy's contention that this was defective and incomplete. He submits that the trial judge should have gone on to say that if the jury were in doubt as to whether or not what was said was true, then they must give the benefit of that doubt to the applicant. He contends that the judge, by giving this incomplete direction, prohibited the jury from taking into account matters as to the truth of which they were in doubt. This direction could have been better put but it must be read in the context of the summing-up as a whole.

6. This court must ask itself whether at the end of the day it is in any doubt as to whether the jury properly appreciated the evidence as a whole and acted correctly when applying the onus and burden of proof thereto. The judge at the very outset told the jury that it was for them to consider and assess the evidence presented in court. He went on to say:

"Firstly it is a fundamental and cardinal principle in our system of the administration of justice that an accused person is presumed innocent until proved guilty. That means it is for the prosecution to prove the guilt of the accused. The accused does not have to prove his own innocence. Furthermore, before you can convict an accused you must be satisfied of his guilt beyond a reasonable doubt. That simply means you must feel sure of his guilt."

He then, having dealt with what he said were the three issues that which he jury had to consider, went on:

"So these are the issues that you have to decide. It is only when you are sure of all these issues that you can convict the accused. If you have any reasonable doubt about any of those issues, then you have to acquit him."

At the very end of his summing-up, almost immediately after the passage complained of, he said to the jury:

"Ultimately, it is a question of fact for you to decide. Are you sure that the accused was talking about the supply of dangerous drug with Ah Ken and Ng Chun-hoi in those meetings and those telephone conversations? Are you sure that the accused was fully aware that the subject matter of their conversation was dangerous drugs? Are you sure that the accused intended to supply dangerous drug to Ah Ken when he made the offer and that he was not joking or trying to cheat Ah Ken and Ng Chun-hoi? These are matters that you have to resolve."

These were very explicit directions as to onus and burden. We must proceed upon the basis that the jury when considering the evidence heeded those directions. We think it fanciful to suggest that if they were left in doubt as to the truth or falsity of anything said in the statement they would not have resolved such doubt in favour of the applicant. We do not consider that there is, therefore, any merit in the ground argued.

7. The application for leave to appeal against conviction must, therefore, be refused.

8. We turn then to sentence.

9. It is Mr. McCoy's argument that the trial judge imposed a manifestly excessive sentence. He points first to the fact that there are no guidelines and submits that the trial judge must, when arriving at a starting point of 20 years, have taken that figure from the guideline case of Lau Tak-ming which, he contends, has no application to circumstances such as existed here. There was, he argues, no proof that there were ever any drugs in existence. He contends that the applicant should have been sentenced not upon the basis of a determined amount but upon the basis that he made an offer to supply an imprecise but, Mr. McCoy concedes, substantial quantity of drugs which he did not have and which he might not ever have been able to procure. We are satisfied given the evidence that was before judge that this is the correct basis upon which to approach the matter. The judge when sentencing, however, took a figure of 20 odd units which he said would amount in weight to 15 kg. There was evidence to the effect that this amount was spoken of but it must be borne in mind that it was the undercover officer who suggested that amount. He might have suggested any amount. Had he suggested twice the amount the applicant might well have agreed to that suggestion without there being any real likelihood that he could obtain and deliver such an amount. The fact of the matter was that, at the end of the day, he did not deliver any drugs. Mr. McCoy points to that and relies upon it. He says this was very much an inchoate offence and that it was wrong to rely on a precise amount as though that was the amount that the applicant was about to deliver. We are satisfied that there is considerable force in these contentions. We also are impressed, as, indeed, was the judge, with the fact that the offence occurred as a result of a considerable degree of entrapment.

10. The judge said when sentencing:

"In my view, the proper starting point is one of 20 years' imprisonment. Despite what I have said, I think your counsel is right that the court should have regard to the element of entrapment for which you should be given a slight discount. I also have regard to the fact that you are a man of previous good character.

Having taken into consideration all these facts, in respect of the offence of which you have been found guilty, you are sentenced to 17 years' imprisonment."

We are satisfied not only that the starting point was manifestly excessive but also that the judge was wrong to have considered entrapment entitled the applicant to only "a slight discount". Having considered all that has been advanced, we are satisfied that a proper starting point would have been 15 years, that a proper discount for entrapment would have been four years and that the applicant was further entitled to a discount of one year on account of his previous good character. In all 5 years is to be deducted from a starting point of 15 years making a sentence overall of 10 years.

11. We allow the application, treat the hearing of the application as the hearing of the appeal and vary the sentence imposed of 17 years to one of 10 years.