R. v. YEUNG CHEUK FAI

IN THE COURT OF APPEAL

1991, No. 252
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant faced trial upon an indictment containing two counts: the first, possession of dangerous drugs for the purpose of unlawful trafficking. Its particulars alleged that he on 19th June 1990 at Room 705, Block 15, Chai Wan Estate, had in his possession a dangerous drug, namely 75.87 grammes of a mixture containing 3.15 grammes of salts of esters of morphine, for the purpose of unlawful trafficking. The second was of a similar nature and its particulars alleged that he, also on 19th June 1990, in a safety deposit box No.9308, China and South Sea Bank Hong Kong, had in his possession a dangerous drug, namely 277.86 grammes of a mixture containing 202.63 grammes of salts of esters of morphine, for the purpose of unlawful trafficking.

3. On 10th May 1991 the applicant pleaded guilty to both of these counts before His Honour Judge Sharwood, sitting as a Deputy Judge of the High Court. Having heard mitigation to which it will be necessary to refer in a moment, the judge passed a sentence of 2 years imprisonment on the first count and 9 years imprisonment on the second count: the sentences to run concurrently.

4. On 23rd May 1991 the applicant filed an application for leave to appeal against sentence. From then on the matter has had a somewhat checkered history. The application first came before this court on 5th September 1991 when the applicant was unrepresented. Mr. Forlin then appeared for the Crown. The applicant asked for an adjournment stating that he had a number of points to make and that he wished his wife to come to give evidence before this court and, further, that he had applied for Judicial Review of that which he described as "the decision". It became apparent that what he was really seeking to do was to appeal against conviction out of time though he had, as we have indicated, pleaded guilty. The matter was adjourned to allow him to make that application which he duly did on 10th September 1991.

5. The matter came on again for hearing on 13th February 1992, the applicant still being unrepresented. We were addressed, shortly, by him and he told us that he was in fact keeping the drugs for his wife who was ill in China and who would use them as a pain killer. He also made reference to the presumptions which existed at the time of his conviction but which, subsequent to it, had been held to have been repealed by the provisions of the Bill of Rights Ordinance, Cap. 383. As a result of that which the applicant said to us we thought it proper to order that be given legal aid in respect of his sentence application. The matter was adjourned for that purpose.

6. The next resumption was on 21st August 1992 when the applicant had the benefit of being represented by Mr. Andy Hung on the instructions of the Director of Legal Aid. The applicant, in person, addressed us in relation to his application for leave to appeal against conviction out of time. Then, after an adjournment when other matters were interposed, the applicant informed us, when the matter was again called, that, having had an opportunity to consult counsel, he sought leave to abandon the application. That leave was granted to him.

7. Mr. Hung then proceeded to address us on the matter of the sentence. It transpired that counsel considered it necessary to introduce fresh evidence under the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221. In order to permit this to be done and to have the matter properly and formerly before us, the application was adjourned yet again.

8. The final hearing of this matter was on 17th March 1993. Having heard the submissions of both Mr. Hung and Mr. Casewell, who then appeared for the Crown, we reserved our decision.

9. We have said that it would be necessary to refer to the mitigation in the court below and we think that, to set the scene properly, that reference should be now. But first the facts.

10. The facts which were admitted were that, at about 6.15 p.m. on 19th June 1990, a team of police officers searched Room 705 at Block 15, Chai Wan Estate. In the presence of the applicant's father a pair of trousers was taken from inside a wardrobe. In it was found a white envelope which held 10 sealed transparent polythene bags. Under the bunkbed in the flat were found 15 transparent polythene bags and a scale with traces of dangerous drugs upon it. The 10 sealed polythene bags contained the drugs as set out in count 1.

11. At about 11.30 p.m. that day the applicant opened the door of the premises with a bunch of keys, was stopped and arrested. The bunch of keys was seized. He identified two of those keys as relating to the safety deposit box No.9308 in the China South Sea Bank, mentioned in count 2. At about 2.35 p.m. on 22nd June 1990, having obtained a search warrant, the safety deposit box was opened by the use of one of the applicant's keys. In it were found two white envelopes. One of these held 7 transparent polythene bags and the other 4 transparent bags. They contained the dangerous drugs in the quantity set out in count 2.

12. Counsel then appearing for the applicant, not Mr. Hung, accepted the applicant's previous convictions, which the applicant admitted, which included a similar offence in 1986 and a number of convictions for simple possession of dangerous drugs. Counsel informed the court that the applicant was aged 31 and was married with a wife in China. They had a one-year old daughter. He was a partner in a hair salon and his monthly income was between $8,000 and $14,000. Counsel then went on:

"By way of mitigation, the defendant admitted possession of all these drugs found either at his home or in the safe deposit box, however all the drugs were intended to be brought back to China for the consumption of his wife. His wife, although at the age of 24, has been suffering from cancer of the intestine."

13. Judge Sharwood promptly queried the correctness of the guilty plea. Counsel was of the view, which he expressed to the judge, that, even if the drugs were for the applicant's own consumption, if he possessed them for the purpose of exporting them from Hong Kong he would not be in a position to rebut the presumption which then existed. The judge accepted that this view was correct. Counsel emphasised that whether the drugs would be for the applicant's own consumption or for the consumption of his wife would be a matter which went to mitigation.

14. His wife, of course, was not in Hong Kong. A medical certificate was produced indicating the nature of the wife's illness. She needed morphine injections. These cost, in the hospital in China, $200 each which was too high a price for the applicant to pay. As a result, the applicant went to his drug supplier and bought drugs which he intended to divide into quantities, insert into cigarettes and bring those cigarettes to China from time to time for his wife's consumption. Counsel having produced certain letters from the wife stated that his instructions were that the quantity of drugs seized by the police could cover almost a year's consumption by the wife.

15. There then ensued a discussion as to the applicable tariff and it was, and rightly, held that R. v. Lau Tak Ming [1990] 2 HKLR 370 (judgment on 29th May 1990) applied. The total quantity here - 205 grammes of narcotic - would attract, after trial, a sentence of 12 years imprisonment - the tariff for quantities between 200 and 400 grammes being 12 to 15 years imprisonment.

16. The trial judge then asked counsel to suggest what the proper discount should be and, again properly, expressed his skepticism of the "drugs in cigarettes to China" story.

He suggested to counsel that perhaps the 10 sealed polythene bags with drugs in them found in the flat, together with the 15 transparent polythene bags, did not sit well with that story. Counsel stated he has taken instructions on this and the 10 bags were the bags which had been themselves purchased from the drug supplier. That supplier had lent the pair of scale and the other 15 transparent polythene bags to the applicant to assist the division into smaller quantities so that the drugs could be inserted in the cigarettes. Similarly, the eleven packets in the safe deposit box were also as bought from the supplier. It was further suggested by counsel that, given that the safe deposit box could not be opened over the weekend or on public holidays and therefore the applicant would be unable to gain access to his supply, this was indicative that the drugs were not for sale.

17. Counsel, perhaps inadvisably, in response to the judge's question as to what he was suggesting, stated that he had discussed the matter with counsel then appearing for the Crown and had come to the view that:

"a sentence of nine to eight years will not be inappropriate in these circumstances, given all the mitigating factors, including the plea of guilty, the circumstances and that the drugs were for consumption by the wife."

He went on:

"Perhaps your Lordship will not accept in total that the drugs were all for the wife's consumption. Your Lordship might think that only part of the drugs were for the wife's consumption. That would take him out of the ordinary category of drug trafficker."

The judge expressed himself happy with that.

18. In passing the sentence he did, the judge made reference to the letters from the wife, the medical certificate and the mitigation of the intended use of the drugs by the wife. He found it difficult in those circumstances as he put it "to really know whether this is truthful or not ..." He thought there were many questions which remained unanswered. But he did bear in mind that the applicant had pleaded guilty and had "cooperated to the fullest". He was clearly referring to the fact that, without the applicant's assistance, the drugs in the safe deposit box would never have been uncovered. He took a starting point at the lowest end of the sentencing bracket of 12 years and he went on to say this:

"In all the circumstances of the case, having regard to all the matters raised on your behalf and allowing at least for the possibility that there is some truth in this story in relation to your wife, I am prepared to deduct three years and sentence you to nine years imprisonment. Having regard to the fact that you were caught redhanded, I regard that as a generous deduction but I think it is warranted in all the circumstances of this case." (Emphasis supplied)

19. The perfected grounds of appeal were originally four in number. To these, very shortly before the final hearing of this matter, was added, by way of a supplementary notice of appeal, a fifth ground. We note that the Practice Direction which requires that perfected grounds of appeal be contained all in the one document has not been observed.

20. The grounds suggest that the judge erred in not accepting in full the mitigating factor that the dangerous drugs were to be brought back to China for consumption by the wife, there being no challenge from the Crown in relation to this; that the judge erred in failing sufficiently to consider that mitigating factor; that he erred in not regarding it as a strong humanitarian ground; that the judge, in the face of the mitigation placed before him in the court below as to the wife's consumption, (a) erred in not indicating to the applicant's counsel that he was not satisfied that the explanation was truthful and had any merit and/or (b) erred in not offering the opportunity, if counsel for the applicant was so minded, to call the applicant to give evidence or to adduce or furnish other documentary evidence. It was further submitted that in all the circumstances the sentence is manifestly excessive or too harsh.

21. The Notice of Motion now before us sought the permission of this court to adduce further medical reports in relation to the wife - made in June 1990, November 1991 and March 1991 - and to have these produced in evidence by the applicant. Having heard the submissions of Mr. Hung we did not think that the prayers in the Notice of Motion should be granted. It did not take the matter any real distance further than as it stood before the trial judge - certainly in relation to the condition of the wife. Further, we did not consider, although at one time I for myself found the proposition attractive, that a Newton hearing should have been held in the trial court. We were not prepared to hear the applicant.

22. The submission made to the trial judge that all the drugs were for the wife's consumption was watered down by counsel towards the end of the sentencing process when, as we have indicated, he suggested to the judge that it might be open to him to consider that only part of the drugs were for the wife's consumption. The trial judge quite clearly accepted the illness of the wife and accepted, though not in its entirety, the mitigation proffered. This was not a situation similar to that which arose in Lester, (1976) 63 Cr App R 144. There the judge, without informing counsel, formed the intention of paying no attention to the mitigation. Here the trial judge clearly, in the opposite sense, did. He informed counsel that he was prepared to allow for the possibility that there was some truth in the story in relation to the wife.

23. We are also prepared to accept that that was so. We think the issue before us to be: did the judge give sufficient discount on his proper starting point of 12 years in the light of the plea of guilty, the applicant's co-operation - in that it was unlikely that the drugs in the safe deposit box, which were of course the vast majority of the drugs, would have been found without his assistance - and the applicant's story of the necessity to bring the drugs to China for his sick wife. We have particularly in mind the trial judge's acceptance that the mitigating factors would have taken the applicant out of "the ordinary category of drug trafficker".

24. We do not think it necessary in the particular circumstances of this application to go into any analysis of when a trial judge is required to enter into a Newton hearing if there arises what has come to be known as the "part part" mitigation - that is part for own consumption and part for trafficking. Indeed that may go rather to plea in respect of the quantity referred to in a charge or a count rather than directly to mitigation itself.

25. However that may be, we think that the circumstances here were unusual and such as to take this applicant out of the ordinary category of drug trafficker. With respect to the judge, we think that the discount given did not fully reflect this. A sentence in total of 7 years imprisonment would have done so.

26. In the event, we give leave, treat the hearing of the application as the hearing of the appeal and allow the appeal, set aside the sentence of 9 years imprisonment imposed on count 2 and substitute for it a sentence of 7 years imprisonment. That sentence will continue to run concurrently with the 2 years imposed on count 1 which is left undisturbed.