CHAN TIEN MING v. R.

IN THE COURT OF APPEAL

1993, No. 461
(Criminal)

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JUDGMENT OF THE COURT

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Wong J.

1. The applicant was one of five defendants in an indictment which contained one count of conspiracy to traffick in dangerous drugs and another count of trafficking in dangerous drugs, namely, a mixture containing 3,196.55 grammes of salts of esters of morphine. The trial took place before His Honour Judge Gould sitting as a Deputy Judge of the High Court and a jury. He was convicted of both counts after trial and sentenced to concurrent terms of 22 years' imprisonment. The judge ordered four years of his concurrent terms to be served concurrently with the term of seven years' imprisonment that the applicant was already serving in respect of another conviction. This means that the applicant is now serving three prison sentences totalling 25 years. He seeks leave to appeal against both conviction and sentence.

2. The evidence adduced by the prosecution at the trial was that two police officers posing as buyers from the United States entered into discussions with a group of people including the applicant for the purchase of 14 kilograms of heroin. Meetings took place at various hotels which resulted in the delivery of 3,196.55 grammes of salts of esters of morphine in the first delivery. This formed the subject matter of the second count of trafficking in dangerous drugs. There were to be two deliveries. The applicant was present at meetings on the 30th June and 2nd July, and he was described by Inspector Chan, one of the police undercover agents as a person with authority to give order to others. The Inspector said that the applicant had the power to make plans, to change plans and to override decisions of others.

3. The applicant gave an account in the witness box of why he was at the meetings. He said that he was there at the invitation of his friend, Ah Biu and had been set up and pulled into the whole scheme by Ah Biu so that the police could arrest him. He did not know or hear anything about dangerous drugs during the meetings. The jury clearly rejected his account. They were perfectly entitled to come to their conclusions on the evidence that was before them.

4. In the written grounds of appeal which he prepared personally, he complained that:-

1. There are many doubtful points in the testimonies given by the two main prosecution witnesses, and he was not given the benefit of the doubt.

2. The trial judge misdirected the jury and did not give the jury sufficient time to consider the case; thus they passed such an unfair verdict.

5. Before us he was asked if he had anything to add in regard to his appeal against conviction and sentence. He again complained that there were discrepancies in the evidence of the two police officers. Having perused the record, we are satisfied that the judge correctly and adequately directed the jury. The judge reminded the jury of the discrepancies in the evidence given by the two police undercover agents. He dealt with the evidence fully and fairly. As to the second complaint we note that the jury took six hours to consider their verdicts. They retired at 11.25 a.m. and came back with their verdicts at 5.25 p.m. We find that complaint to be without any substance. Leave to appeal against conviction is therefore refused.

6. The applicant also seeks leave to appeal against his sentence. He complained that the degree of culpability in the conspiracy had not been properly apportioned by the judge and the sentence imposed on him was manifestly excessive.

7. Two of the co-defendants, Cheung Pak and Leung Wai Yip, who pleaded guilty to conspiracy to traffick in dangerous drugs, were sentenced to 16 and 16 1/2 years' imprisonment respectively. There the judge took a starting point of 22 years. In dismissing the appeals of Cheung Pak and Leung Wai Yip on 25th May 1994, this Court observed that the starting point adopted by the judge was not wrong and a discount of six years for the plea of guilty was adequate. Leung Wai Yip received an additional 6 months' imprisonment because of his attempt to reverse his earlier plea of guilty, which the judge rejected. We are conscious of the fact that the sentence of 22 years' imprisonment is an extremely heavy sentence. We are, however, satisfied that it is fully justified in this case. The offences are serious ones; the quantity of narcotics very large and the evidence further indicates that the applicant played a leading and far more important role than his co- defendants. In our judgment, the sentence is neither manifestly excessive nor wrong in principle. The application for leave to appeal against sentence is also refused.