THE QUEEN v. LEE KING WAH AND ANOTHER

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JUDGMENT

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Li, JA :

1. At about 2.00 a.m. on the 14th of October, 1982 a police patrol car with officers in plain clothes observed three persons walking accross Tung Choi Street from Hung Fai Building towards a car opposite the building.  These persons were subsequently identified as the 1st applicant (Dl), the 2nd accused and the 2nd applicant (D3).

2. At the material time, D1 was seen by officers carrying a bag.  Dl opened the boot of the car and deposited the bag into it.  Being suspicious, the officers alighted from their car, approached the 3 accused, revealed their identities and asked what was in the bag. Dl and D3 ran at once towards Dundas Street which was south of Tung Choi Street.   They were chased by the officers and eventually caught. Dl was caught at the junction between Dundas Street and Nathan Road. D3 was caught in Sai Yeung Choi Street to which he turned from Dundas Street.

3. In the course of the chase D3 was seen throwing something onto the pavement.  Such things were recovered.  They were a bunch of keys and a packet of cigeratte inside which was 1.11 grammes of mixture of salts of esters of morphine.  Such was subject matter of the 5th count of the indictment.

4. All three were arrested and brought back to their car. In the meanwhile, a body search was conducted upon Dl.  On his person were found a bunch of keys, some 9 tablets of methadone hydrochloride and 10 tablets containing codeine phosphate.  These two lots of tablets were subject matters of count 3 and count 4 to which Dl pleaded guilty and had not been mentioned at his trial on the other counts.

5. One of the keys found on Dl fitted the boot of their car. Inside the boot were 8 packets totalling over 3 kg. of esters of morphine - heroin base - wrapped in bags with the logo of No. 1 Department Stores contained in a carrier bag with the logo of Romano.

6. All three were eventually brought back to the Mongkok Police Station and subsequently the Narcotics Bureau in Police Headquarters for investigation.  As a result it was found that a Flat 1 in 14th floor of Hung Fai Building in Tung Choi Street was the home of D3's mistress, CHENG Lai-fong.  The police went to the place for a search later in the day of 14th October.  In a wall unit in the flat they found a set of scales, a sealing machine and 3 sets of Chinese scales.  All of these items bore traces of salts of esters of morphine.  In addition, they found wrapping paper bags with the logo No. 1 Department Store and two Romano carrier bags of the same type that were found wrapping up the heroin base in the boot of the car. D3's finger-print was found on one of the three pairs of the Chinese scales.

7. D3 had a wife whose home was at No. 14 Victory Avenue, 9th floor, Block B.  That home was also searched.  There, the police found polythene bags, 2 sealing machine one of which was unused.  The other one which had been used had traces of salts of esters of morphine.  Also found were a scale and a pair of sun-glasses both tainted with esters of morphine.  There was a sun-glass case with a small packet of esters of morphine which formed the subject matter of the 6th count.

8. D3 's business premises at 22 Victory Avenue, Ground Floor, were also searched on the 15th of October, 1982.  That was the Ka Shing Garage. Nothing of interest was found in the garage. But 13 drums of caffeine were found next door to this garage, at No. 24B Victory Avenue, Ground Floor, which was rented by D3's father.  Of these, 12 drums were full (19 to 20 kg. each) and the remaining one had in it about 16 kg. No. 24B was used as a store-room for the garage business in Ka Shing as well as the father's garage business at No. 12 Victory Avenue.

9. The last address to be visited by the police was No. 80 Ko Shan Road, 5th floor.   This set of premises was searched because the landlord, prompted by arrears of rent, went to have a look at it.  He found the iron grill tampered with and suspected a burglary.  The police were called and they broke in with the aid of the Fire Services Department. Inside the flat were found all windows covered and sealed with black cloth.  A microwave oven empty drums for caffeine similar to those found in 24B Victory Avenue - one of these drums still contained a fair quantity of caffeine - various addictives, chemicals, equipments and other paraphernalia were found making the place a complete factory for the manufacture of heroin. There were also some wrapping bags with the logo No. 1 Department Store.  There was evidence that Dl had been the tenant of the said premises since the 22nd of June, 1982.

10. The defence of Dl was that he was employed by D3 at Ka Shing Garage.  In June he signed a tenancy agreement for the premises of 80 Ko Shan Road, 5th floor as his residence.  He intended to share it with a friend by the name of LAM Chi-wan.   He paid one month's rent in advance plus two months' rent in deposit and signed the tenancy agreement.  Before he move in, his mother-in-law found him a cheaper and more suitable flat somewhere in 22 Ching On Street to which he moved in by July/August 1982.   In short, be never stayed in the flat at 80 Ko Shan Road at all.  He had arranged with LAM Chi-wan to take over the entire flat at Ko Shan Road.  In view of the terms in the tenancy agreement he would pretend to be in occupation of the premises and pay rent to the landlord. However, all the rents that he paid to the landlord were given to him by LAM Chi-wan. Further, the landlord agreed to let only the flat to him less one store-room. No key to the store-room was given to him.  His defense was complete disassociation from the premises of No. 80 Ko Shan Road.

11. As regards the incident which occurred on the 14th of October, he said that around 8 p.m. on the 13th of October, D3 arranged with him and D2 for a night's outing.  They arranged to meet at Hung Fai Building.  He was late. By the time he arrived D2 had left. D3 told him that D2 had an urgent call to go out.  They waited. Shortly before 2 a.m. on the 14th of October, D2 rang through the intercom to tell them that he was at the entrance.  Dl and D3 went down to the main entrance to meet D2. The three of them then walked across Tung Choi Street to the car parked opposite to Hung Fai Building. D2 had with him a carrier bag which he asked Dl to take to the boot of the car because he, D2, wanted to go to the supermarket nearby to buy some new batteries.  As D1 was about to go into the car, he heard the police call.  He saw D2 and D3 ran. He was frightened.  He followed them and ran into Dundas Street.  As he ran near Nathan Road he heard that the people chasing him called out that they were police.  He became more calm. He stopped. Immediately the police handcuffed and assaulted him.   He made complaints to various authorities and he was hospitalized for about two days.

12. As to the 13 drums of caffeine found in No. 24B Victory Avenue, he said that at 8 p.m. on or about the 12th of October, 1982, his friend, LAM Chi-wan, asked him for permission to store a few small drums in the garage premises for a few days. He was agreeable to it. Two hours later he found his friend, Mr. Lam, arriving in a 1½  ton lorry with 13 drums of substance. By that time it was too late to refuse.  He allowed Mr. LAM Chi-wan to deposit the 13 drums near the toilet of the premises in 24B Victory Avenue.   He intended to tell his employer about it. Somehow or other he forgot until he was arrested.  He had nothing to do in any way with No. 24B Victory Avenue.  But he saw apprentices of the garage' as well as Ka Shing Garage Company stored spare parts inside it. The door to that part of the premises was never locked.  He called as his witness one of his workmate by the name of WU Tin-fook, who corroborated him in the sense that LAM Chi-wan used to pay him the rent for the Ko Sha Road premises and that he in turn passed the rent on to the landlord.

13. In his defense D3 admitted that flat B on the 9th floor of Hong Keung Building at No. 14 Victory Avenue was his home where he stayed with his wife.  He also had another flat known as Flat 1, Hung Fai Building in Tung Choi Street where his mistress lived. He was a partner of Ka Shing Garage Company which was located at 22 Victory Avenue. He was also in business in mahjong school, pai kau stall as well as in money lending.  His father ran a motor company by the name of Ying Ming Motor Company at 11 Victory Avenue.  Dl was one of his employees in Ka Shing Company. D2 was a friend of his for five or six years.   He denied any knowledge about the 13 drums of caffeine found in 24B Victory Avenue. D1 never told him.

14. The items found in Hong Keung Building at Victory Avenue belonged to D2 who asked for his permission to deposit them there. That was a few months prior to October 1982. The reason D2 gave him was that he, D2, had those items to be stored away.  D2 was living in Yu Long which was too far away.  D2 also mentioned that the Chinese scales were fragile and therefore D2 put them in his study.  D3 admitted that the sunglass tainted with traces of dangerous drugs was his.  So was the sunglass case in which some esters of morphine were found.  However he said that D2 asked to borrow his sunglass together with the sunglass case.  He knew nothing about the drugs that were found in the sunglass case.

15. As to the items that were found in the flat of his mistress in Hung Fai Building, he said they also belonged to D2 who took them there to be kept temporarily.  At the time D2 took out a balance to show to him. Out of curiosity he took it out to have a look.   He also acceded to D2's request and allowed him to deposit those items in his Victory Avenue home.  He said that he had no connection whatsoever and did not know of any of the items that were deposited at No. 80 Ko Shan Road flat.

16. Regarding the incident which occurred on the 14th of October 1982, he gave the same evidence as D1.  The three of them walked across the road to the car.  As he was about to get into the car he heard the police shouted to them.  At the time he had a small quantity of dangerous drugs in his pocket which he intended to consume himself. He was a drug addict for over a year and consumed heroin regularly. When he heard the arrival of the police he was frightened and started to run.  In the course of the chase he was in panic.  He threw away the packet of cigarette containing the drug and by accident he also threw away a bunch of keys.  One of the keys fitted the Hung Fai Building flat.

17. In support of the defense evidence, D2 also gave evidence. D2 said he worked for one person by the name of Ah Cheung to pack drugs, in various hotel rooms. Sometime in July 1982, he was asked by Ah Cheung to take care of the drug packing equipments. D2 live in Yu Long.  D3's residence was nearby.  D2 went to D3's home in Victory Avenue to ask for a favour for storing the equipments there for a short period. D2 told D3 that such things belong to a herbalist friend. A few days later D2 went again to D3's flat in Victory Avenue.  He asked D3's permission to borrow a pair of sunglasses which D3 never used.   In the meanwhile, D2 put a small quantity of esters of morphine into the sunglass case which he put into the drawer in the study in D3's flat. He forgot to take away the sunglass and its case.

18. Three days prior to the 14th of October, there was another session of packing done by D2 for his employer.  He intended to retrieve the scales and sealing machines etc. from the Victory Avenue flat.  However he tried in vain to contact D3 there.  He had to purchase some new ones.  After the packing session he was told by his boss to store them. Later he found D3 in his Hung Fai Building home. He went with the new equipments.  Again he asked D3's permission to put the equipments there (Hung Fai Building flat) for a few days.  That explained why the packing equipments and various items were found in both the flats of D3's in Victory Avenue as well as in Tung Choi Street.

19. Regarding the incident on the 14th of October 1982, he confirmed that they were to meet at around 11 p.m. on the 13th of October in D3's flat at Hung Fai Building.  He arrived early. Dl had not arrived.  He received an urgent telephone call from his boss telling him to take delivery of a consignment of heroin base.  He told D3 that he would be away for a short while on urgent business but would return. In a meanwhile he took away one of the Romano bags from the home of D3 thinking that a bag like that would be less conspicuous for taking delivery of dangerous drugs.  D2 understood that his employer would later page him after he obtained delivery of the heroin base and give him instructions as to the drugs final destination.  Thus he kept with him the drugs inside the Roman bag.  He contacted D3 through the intercom at the ground floor of Hung Fai Building intending to go out with them while awaiting the final instruction from his boss. He asked D1 to carry the bags for him across the road because he intended to go to the supermarket to buy some new batteries for his pager so as to facilitate receiving the call from his boss. Before he could do so he was arrested by the police as were D1 and D3.

20. In the event all three defendants were indicted on several counts involving their expedition. D1, D2 and D3 were all indicted in count 1 for conspiracy to manufacture dangerous drugs, count 2 for possession of dangerous drugs for the purposes of unlawful trafficking. Dl was in addition indicted in count 3 for possession of dangerous drugs and count 4 for possession of Part I poisons. D3 was in addition charged with count 5 for possession of dangerous drugs for the purposes of unlawful trafficking and count 6 of similar charge of possession of dangerous drugs.  The result was that Dl pleaded guilty to count 3 and count 4 and was convicted on count 1 and count 2.  D2 pleaded guilty to count 2 and the prosecution offered no evidence against him in respect of count 1. D3 was convicted of count 1, count 2 as well as count 5 and count 6. Dl and D3 applied for leave to appeal against conviction as well as sentence.

21. By consent of all parties, learned counsel for D3 addressed the court first.  There was no complaint as to the direction as to the proper ingredients relating to the offences in count 2.  The only complaint was one which could be attributed to a slip of the tongue on the part of the trial judge when he directed the jury in respect of the presumption under section 47 of the Dangerous Drugs Ordinance when he said (P13 H):

"The 2nd ingredient of this charge is that it was a dangerous drug and he knew it to be so.  The Government Chemist establishes that it was the dangerous drug charged and if you find the 3rd defendant was in possession of it, then another legal presumption arises again, that is that he knew it was a dangerous drug and you must act on that presumption again unless, in the light of all the evidence, you think it probable, that is more likely than not, that he was not in possession, that that presumption would be wrong, and in that case, the presumption would be upset and you would not act on it." (the underline is mine)

In that passage the trial judge should have said "he did not know" rather than "he was not in possession".   Relying upon this slip it was contended that the trial judge failed to put the defense case as to D3's lack of knowledge.  We said it was a slip of the tongue because prior to that passage, the judge directed the jury regarding D3 said (PllF):

"So, in this case, if considering all the circumstances, you are sure in respect of the 3rd defendant that he was a party to a common purpose, that this carrier bag of drugs be carried on that occasion for their mutual purpose and benefit and that the 1st defendant was carrying it for that mutual purpose, then you could and should find that the 3rd defendant was also in possession of it.  The second ingredient is that it was a dangerous drug and the defendant knew it to be such."

Then he said:

Thus the question whether D3 had anything to do with the bag of drugs, the subject matter of count 2, had been left to the jury by referring to the question whether D3 "was a party to the common purpose" and also whether he had knowledge. His direction (at P39K) made it abundantly clear. He directed the jury as follows:

"I think I also told you that as regards the 3rd defendant, he wasn't carrying them or putting them in the boot of this car, that in order to find the 1st ingredient against him, you'd have to find that first - sorry, as regards the 3rd defendant, he wasn't carrying them but that doesn't mean that he necessarily wasn't in possession of them because he would be in possession of them if, but only if, you came to the conclusion that they were being carried by the 1st defendant in pursuance of a joint enterprise, a joint business that they were on in relation to the drugs and that in those circumstances, if the 1st defendant was carrying them with the knowledge of the 3rd defendant in pursuance of a joint business or joint venture relating to the drugs by the 1st and he 3rd defendant, then in those circumstances, although the 3rd defendant didn't actually have them in his hand, he would be in possession of them."

Then (P40D) he said:

"Now as regards either defendant, if you find he was in possession, one because he was carrying the bag, the other because they were being carried pursuant to a joint venture in relation to the drugs to which he was a party, then I told you that a presumption would arise as regards the second ingredient which is that they knew they were drugs and I told You that that presumption you would have to apply unless you thought that in the circumstances of all the evidence in the case, it was probably wrong not definitely wrong, but more likely than not to be wrong."

22. The next complaint is that the judge misdirected the jury as to their approach to the facts found in reliance on presumptions. It was contended the judge was wrong when he told the jury that:

".... if you are satisfied of guilt on that count (count 2), then the facts of that count would be one of the factual foundations upon which you might draw the inference of conspiracy."

thereby virtually telling them to presume possession under section 47 of the Dangerous Drugs Ordinance as one of the factual foundations for conspiracy.

We are of the opinion the judge was not wrong.

23. In the case of The Queen v. CHOI Yiu-kwai and Others⁽¹⁾ the learned Chief Justice said at page 12 as follows:

24. In the present case the trial judge directed the jury that possession of heroin base was only one of the factual foundations to the crime of conspiracy.  We need not repeat the other facts as shown in evidence which could be used as foundations such as the similarity in the wrapping bags found in Hung Fai Building and those in the car, the various paraphernalia in Ko Shan Road premises and the various packing equipments in Victory Avenue as well as the drums of caffeine in Victory Avenue premises.  Having regard to the conglomeration of other evidence and factual foundation there was no necessity to pray in aid any presumption whatsoever; once the jury was satisfied that Dl and D3 were in fact in possession of the heroin base.  The prosecution could not pray in aid on the provisions of section 45 of the Dangerous Drugs Ordinance.  Nor was it necessary for the prosecution to pray in aid the provisions in section 39 of the Dangerous Drugs Ordinance.

25. The 3rd complaint was that the judge invited the jury to include acts of persons other than D1 and D3 as overt acts to show conspiracy. This argument was founded on the basis that the prosecution accepted D2's plea of guilty to count 2 and offered no evidence against D2 on the 1st count of conspiracy. As such it was contended that the judge's direction could have induced the jury to take into account the acts of D2's possession - particularly when the judge said the guilt of count 2 could be one of the factual foundations to conspiracy - as probative of Dl and D3's participation in the conspiracy.

26. It must be observed, however, that the judge right from the beginning of his summing-up told the jury to "consider each charge and the case against each defendant separately". The whole direction in page 14 to 15 of the transcript never once mentioned D2.  When the judge used the term "any person", he could only mean D1 and D3.  We were not satisfied that this complaint was justified.  Even if the failure to refer specifically to D1 and D3 amounts to a misdirection, which we do not say it did, we would have been prepared to apply the proviso.

27. Lastly, it was contended that the cumulative effect of many adverse comments and failure to put forward the defense case in equally forceful terms might render the conviction unsafe and unsatisfactory.

28. There is no need for us to repeat the various instances listed in the grounds of appeal about the judge's adverse comments. Suffice it to say that they were strong comments in the face of very strong and overwhelming evidence counteracted by very feeble explanations.

But this court also said (P7):

29. In the present case, the evidence were so strong that we felt strong comments from the judge were justified. In any event the judge warned the jury in the following terms:

"It is for you to decide what you believe in the evidence and what inference you draw from facts that you find established, and it is for you to decide what weight you give to the various pieces of evidence that have been placed before you and there is a positive duty upon you to reject any views that I might express as to what I would believe or what inferences I would draw.  There is a positive duty upon you to reject any such views of mine unless the view that I happened to express is a view that appeals to you as being correct and you decide to adopt for your own, because, you see, the evidence might have left a different impression upon my mind to the impression it left upon your minds and it is the impression it left upon your minds that matters, not the impression it might have left on my mind."

30. Learned counsel for D1 adopted completely the argument advanced by Mr. Denny on behalf of D3. The only extra complaint he had was that the judge directed the jury upon matters of lies told by D1 or by Dl's witnesses.  Such direction as we read it in the transcript were very proper directions.  The trial judge never told the jury to convict upon any lie they found told by D1 or his witnesses.

31. Another complaint was that the judge told the jury to rely too much on the landlord's evidence, namely the landlord of 80 Ko Shan Road.  There again, in view of the judge's direction at the very beginning of his summing-up to the jury about what impression that was left in the judge's mind and the jury's mind, we found there was no substance in such complaint.

32. For these reasons, we refused the applications by both applicants for leave to appeal against conviction.

33. The applicants also applied for leave to appeal sentence.  The 1st applicant was sentenced to a term of 25 years for the let count and a term of 10 years for the 2nd count.  The 3rd applicant was sentenced to 30 years for the 1st count and 10 years for the 2nd count.  We do not overlook the seriousness of the offence of conspiracy to manufacture dangerous drugs.

34. It was obvious from the evidence that had the conspiracy materialised some 510 kg. of heroin would have been manufactured and distributed to the market.  From the heroin base that visa seized from the three defendants on the 14th of October that night's operation would have produced some 9 kg. of heroin.

35. Indeed, counsel for the applicants conceded that such offence called for a deterrent sentence.  It was contended, however, that sentences as long as 30 years imprisonment were reserved for the abnormally serious cases.  Citing in support of sentencing principle were the cases of Aramah ⁽⁵⁾ and NG Sik-ho ⁽⁶⁾.

36. We were conscious of the fact that the maximum sentence for dangerous drugs offences was 14 years while that in Hong Kong was life. But one can readily make a distinction from the facts in present case from that of NG Sik-ho ⁽⁶⁾.  That was a case about a variety of offences committed in a number of years during which no less than 20 tons of dangerous drugs were involved in the transactions.  There were more people involved.  They even resorted to piracy.  Without going into the details of the cases, we found that there was substance in counsel's argument. Suffice it to say that the activities in the NG Sik-ho ⁽⁶⁾ was far worse than the activities involved in the instant case. We were satisfied that a deterrent sentence was justified but not to the extent of that imposed on NG Sik-ho.

37. In the case of the 3rd accused, the 2nd applicant, we were of opinion that 30 years was excessive in the sense that it should have been reserved to the top bracket of the bad cases.  We also found that the differential of 5 years between the 1st and 3rd accused was not justified. D3 was, indeed, the person who appeared to have control of the finance of the manufacturing.  The participation of the 1st accused was equally deep.

38. For these reasons, we granted leave to apply for leave to appeal against sentence, allowed the appeal and the sentence of D3, the 2nd applicant, in respect of the 1st count would be reduced from 30 years to 20 years; and that of the 1st applicant, D1, would be reduced from 25 years to one of 17 years imprisonment. We ordered that the sentences to commence from the date of their arrest.

39. We indicated that we would give our reasons for our aforesaid decisions which we now do.

(1)     Criminal Appeal No. 465 of 1983

(2)    Criminal Appeal No. 993 of 1983

(3)    Criminal Appeal 663 of 1981

(4)    (1963) 6 W. I. R. 418

(5)    1983 C. A. R. 190

(6)    Criminal Appeal No. 410 of 1975