HO TING WAI v. R.

IN THE COURT OF APPEAL

1993, No.2
(Criminal)

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J U D G M E N T

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Bewley, J.:

1. This is the judgment of the court.

2. The applicant appeared before His Honour Judge Evans, sitting as a Deputy Judge, and a jury. He was convicted on 21st December 1992 on three counts. On count 2 he was charged with unlawfully trafficking in 350.25 grammes of a mixture containing 40.75 grammes of salts of esters of morphine. The other two counts alleged possession of dangerous drugs for the purpose of unlawful trafficking. In count 3 the total was 7,222.85 grammes of a mixture containing 393.48 grammes of salts of esters of morphine. Count 4 involved a total of 523.95 grammes of a mixture containing 215.38 grammes of salts of morphine. On the 2nd count he was sentenced to 7 years' imprisonment, on the 3rd count to 13 years' imprisonment and on the 4th count to 10 years' imprisonment. The sentences were ordered to run concurrently, except that 4 years of the sentence on count 4 was to run consecutively to the other sentences. He now appeals against sentence only.

3. A surveillance operation by Customs & Excise Department officers was carried out on 9th July 1991. At 7.25 p.m. the applicant was seen to arrive by car at the King Win Factory Building. The car was driven by one Wong Yuk Wah, who was also charged with possession of dangerous drugs in those premises but absconded while on bail.

4. The applicant and Wong entered the tin structure on the roof of this building. Forty minutes later they returned to the car, the applicant carrying the drugs specified in count 2 in a box. They later picked up the 1st defendant and drove to Yaumatei. The 1st defendant got out carrying the box and entered the Wellcome Supermarket where she was arrested. She was later sentenced to 5 years' imprisonment for possession of dangerous drugs and trafficking on counts 1 and 2 of the same indictment.

5. The car was then driven to Cameron Lane. The applicant got out and was arrested after a chase and struggle. He was taken to the factory building, where the keys of the tin structure were found under a plank. The dangerous drugs were located in several places inside the structure.

6. As the trial judge put it to the jury, "There was cutting material, caffeine, processing equipment, lamps, blenders, heaters, fans, trays, tools, burners and a jack with plates and a block capable of moulding. There were also moulds for blocking heroin. There was packaging equipment - plastic bags, papers, plastic straws, cutters, a sealing machine and scales of various sorts." This was undoubtedly a cutting and packing centre.

7. The applicant's fingerprints were found on some of this equipment and traces of drugs were found on his hand. Under caution the applicant confessed that he had sealed and delivered bags of heroin on several occasions and had been paid by Wong. At trial his defence was that he was acting under duress by Wong, who was his triad society big brother. The applicant is now 27. He has two previous convictions which are not drug related.

8. The judge found that an aggravating factor was the evidence of a considerable turnover of the drugs, which was illustrated by the large number of bags with traces. He also found that Wong was the kingpin of the operation and accepted that the applicant's role was that of an active assistant under Wong's control.

9. The total quantity of the narcotic in counts 3 and 4 is 608 grammes. On the authority ofLau Tak Ming [1990] 2 HKLR 370, the starting point for possession of this quantity is 20 years' imprisonment. The judge gave a discount for the applicant's subordinate role and, in the event of Wong later being arrested and convicted, to allow the sentencer in his case some leeway.

10. The only ground of appeal pursued by Mr Alderdice, for the applicant, is that insufficient regard was paid to his subordinate role. We think that sufficient discount was given and that the sentences are not manifestly excessive having regard to the scale of the operation. We refuse the application.