LAM SUI YAN and Another v. R.

IN THE COURT OF APPEAL

1991, No. 544
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. After trial before Deputy Judge Jennings and a jury, both applicants were found guilty of conspiracy to traffic in dangerous drugs, and the second applicant was convicted of trafficking in a dangerous drug. They were both sentenced to 20 years' imprisonment on the conspiracy count, and the second applicant was given a concurrent sentence of 17 years on the substantive count.

2. On 4 August this year their applications for leave to appeal against conviction were refused by a differently constituted division of this court and their applications for leave to appeal against sentence were adjourned to a date be fixed. These applications now come before this court for hearing.

3. It is not necessary for us to recite in detail the facts of the case since they have already been set out in the judgment relating to conviction. Suffice it to say that the applicants agreed to supply 70 kilogrammes of heroin to a man, who unknown to them, was an undercover agent employed by the United States Drug Enforcement Agency. In the course of conspiracy, the second applicant delivered 6.859 kgs of a mixture containing 5.596 kgs of salts of esters of morphine to the undercover agent at his hotel. This formed the subject of the substantive count and was the first instalment in the supply of the total quantity of drugs that were to be delivered in accordance with the conspiracy. In its judgment dismissing the applications for leave to appeal against conviction this court observed that the deputy judge erroneously acceded to a submission of no case to answer in respect of the first applicant on the trafficking count and directed the jury to acquit him thereon.

4. In passing sentence on the applicants, the deputy judge accepted that neither of them was as active or important a member of the drug syndicate as they had represented themselves to be. However he was of the view that one or both of them must have had a significant contact with a powerful syndicate in order to have been able to obtain the quantity of heroin that was ultimately delivered, and that without the encouragement of a Drug Enforcement Agency informant named Yiu, they would probably not have entered into the transaction which they did. Notwithstanding these factors he was satisfied that, if it had not been for the intervention of the police, the entire 70 kgs would have been supplied and that, once involved, both applicants were eager conspirators. It is our opinion, however, that on the evidence given at trial, the deputy judge formed a view of the matter which was overly generous to the applicants.

5. The deputy judge further stated that he was applying the sentencing guidelines which were applicable in November 1989 when the offences were committed, namely those laid down in The Queen v. Cheng Yeung (1989)2 HKLR 258. He referred to The Queen v. Chan Chun-wai Cr.App.R.No. 146/89 in which it was said that the range of cases involving an 'agent provocateur' is wide, extending from one extreme at which the undercover agent PROVOKES a person into committing an offence which he would otherwise never have committed, to a case where the agent merely gives an opportunity to a person to commit an offence which he was minded to commit even without the encouragement of the agent. He observed that in the latter case no discount in sentence is appropriate. He came to the conclusion that the present case fell between both extremes and gave a discount of 20 per cent from the sentences he would otherwise have passed.

6. There was evidence that at the relevant time 122.7 kgs of No. 3 heroin could have been produced from 7 kgs of the No. 4 heroin which was actually delivered.

7. Mr Macrae, who appeared for the applicant in this court but not in the court below, submitted that, in the light of the deputy judge's findings and the sentencing practice at that time, the sentences were manifestly excessive. As we have said, the quantity of drugs involved in the conspiracy was 70 kgs, of which almost one tenth was actually delivered, with the balance to follow. We think it pertinent to observe that the point was made by the court in Cheng Yeung, the case on which Mr Macrae places reliance, that where huge quantities of heroin are involved, the role of the defendants is not a mitigating factor. The words which the court used were these:

"A point is reached which invites a severe penalty and at which the possessor cannot complain if someone yet more deeply involved suffers no more."

8. This was a contested trial. We do not think that the deputy judge erred in his selection of the starting point for sentence or that he gave an inadequate discount. The sentencing guidelines applicable at the time of the commission of these offences for quantities in excess of 20 kgs allowed for sentences in the region of 20 years. That is what the court said in Cheng Yeung. In view of the enormous quantity involved in this particular case we do not think that the starting point upon which the judge founded his sentences was in any way wrong. The applications are therefore refused.