HKSAR v. KWOK SIN MAN, BEATRICE

CACC333/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.333 OF 2002

(ON APPEAL FROM HCCC NO.242 OF 2001)

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REASONS FOR JUDGMENT

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Hon Burrell J (giving the judgment of the Court) :

1. At the conclusion of the hearing on 13 December 2002 we dismissed the applicant's appeal against conviction and sentence. These are our reasons for so doing.

2. On 21 June 2002, the applicant was convicted by a jury after a trial before Gall J of one count of trafficking in a dangerous drug contrary to section 4 of Cap.134. The drug in question was the drug known as ICE and approximately 20 grammes had been trafficked.

3. The original indictment had contained three counts. All alleged trafficking in a similar quantity of ICE. This applicant was only indicted on Count 2, jointly with Lo Lap Kwok ("Lo"). Counts 1 and 3 were against Lo alone. At the material time he was the applicant's boyfriend. Lo pleaded guilty to all three counts.

4. The prosecution case was that the applicant had handed the drugs, which were inside a cigarette packet, to an undercover policewoman in the toilet of the Sun Fat Restaurant in Hung Hom on 8 April 2002. She had been instructed to do so by Lo, a little earlier. It was also part of the prosecution case that the applicant had been present at an earlier transaction on the same night, when Lo himself had handed over a similar quantity of drugs to a male undercover police officer outside a nearby 7-11 store. It was part of the prosecution case that it could be safely inferred from her presence at the earlier incident that she was aware that drug transactions were being conducted. In his summing up the learned judge correctly directed the jury as to how they may draw inferences from proven facts.

5. It was admitted by the applicant that she had handed the cigarette packet to the policewoman in the toilet, on Lo's instructions. Her defence was twofold. Firstly, it was her case that she did not know that the cigarette packet contained dangerous drugs. Secondly, that at the material time she was acting under the duress of her boyfriend. She also said that she had not been present at the time of the earlier transaction at the 7-11 store.

6. During the trial a number of differences emerged, of varying significance, between the prosecution version and the applicant's version about what actually occurred at the time of the handing over of the drugs and immediately prior thereto. The learned judge carefully reminded the jury of those differences in his summing up.

7. Ultimately the two key issues for the jury to decide were, firstly, had the prosecution proved that she knew she was handing over dangerous drugs and secondly, had the prosecution proved that she was not acting under duress at the relevant time.

8. The applicant was unrepresented on appeal. Her grounds of appeal had been drafted by herself. They were in the following terms :

"1. I made friends with the wrong person, Lo Lap Kwok. Since he was my boyfriend, I would not have suspected that he would do me harm.

2. My parents are divorced. No-one can take care of my younger sister.

3. I did not plead guilty. I did not take any dangerous drugs. I did not have any intention to traffic in dangerous drugs nor did I attempt to do so."

9. At the hearing of the appeal, she enlarged on these grounds by highlighting the factual differences which emerged in the evidence, by reminding the court of the defences which were advanced on her behalf at trial and by repeating matters of mitigation which were relevant to the appeal against sentence. In the applicant's favour, we interpret her written grounds of appeal as meaning that she blamed her boyfriend for forcing her to do something against her will and that she did so under duress. Also, that she did not realize that she was participating in a drug dealing transaction.

10. The learned judge's directions to the jury on the issues of "duress" and "knowledge" cannot be faulted. His direction on duress was in the following terms :

"(Duress) is an available defence to a criminal charge. If she were to have been acting under duress, then because of that duress you would find her not guilty. It is for the prosecution to prove that she was not acting under duress ....

Duress consists of threats by words spoken on the part of some other person which drives a person to commit an offence because, at the time she took part in the offence, she reasonably believed and had good cause to fear that she will be killed or seriously injured if she does not do so and which, in your judgment, would have driven any sober person of reasonable firmness, of the accused's sex and age to do the same thing."

He then reviewed the evidence, for and against, which was relevant to this issue. The same helpful approach was adopted when he dealt with the issue of the applicant's knowledge of the drugs at the material time.

11. The issues were factual issues for the jury to decide. In a balanced summing up, both versions of events and both cases were fairly and correctly placed before the jury. Equally, they were carefully and correctly directed on all relevant matters of law.

12. For all the above reasons, we are satisfied that the applicant received a fair trial. Accordingly, we dismissed her appeal against conviction.

Sentence

13. The applicant was sentenced to 5 1/2 years' imprisonment. The applicant's counsel at trial had correctly acknowledged that the appropriate range of sentence for trafficking in this quantity of this particular drug was seven to ten years.

14. On the applicant's behalf he asked for leniency and was granted it. A sentence of seven years could not have been criticized. However, the learned judge was persuaded to exercise particular leniency because of her age (she was 19 at the time), her lack of previous convictions, her family circumstances and the adverse influence of her boyfriend on her.

15. On appeal, the applicant also indicated she felt some grievance that her boyfriend had only received a sentence of 6 1/2 years for his involvement in three counts of drug trafficking whereas she was only convicted of one count. We find there is no merit in this for two reasons. Firstly, he had pleaded guilty to all three counts all of which took place within a short period of time on the same night and secondly, the applicant herself benefited from significant leniency in her sentence.

16. For all the above reasons, we also dismissed the appeal against sentence.