THE QUEEN v. LEUNG KWAN

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. In Criminal Appeal No. 73 of 1990 Wong Chi Ling seeks leave to appeal against sentence passed on her for two offences: both of possession of a dangerous drugs for the purpose of unlawful trafficking.

2. In Criminal Appeal No. 496 of 1989, Leung Kwan  seeks the leave of this Court to appeal out of time against sentence passed upon him for a similar offence.

3. Miss Sze Kin, who appears for both the applicants takes, on the merits, the same point in both applications. We therefore heard both of them at the same time reserving the question, until submissions of Miss Sze Kin had been considered, as to the grant of leave out of time to Leung Kwan.

CA73/90

4. Wong Chi Ling had been indicted together with Li Lik Keung, who was the 1st accused at trial, with possession of dangerous drugs for the purpose of unlawful trafficking: namely 1,684 grammes of a mixture containing 1,548 grammes of salts of esters of morphine - count 1 - and 363.33 grammes of a mixture containing 33.60 grammes of salts of esters of morphine - count 2. Both offences were said to have taken place on 14th January 1989 at the ground floor of 268B Prince Edward Road, Kowloon. Wong Chi Ling pleaded guilty to both counts. Upon her conviction by Mortimer, J. the Crown offered no evidence against D1. She was sentenced to imprisonment for 15 years on the 1st count and 3 years' imprisonment on the 2nd, the sentences to run concurrently.

5. Briefly the facts were that a police party went to the flat in Prince Edward Road at 7:15 a.m. on 14th January. At about 8:15 a.m. when another tenant of the premises left' it the police gained entry upon showing him their search warrant. They went to Room 3 on the ground floor and knocked on the door. Their knock remaining unanswered they forced their entry. Inside the room were Wong Chi Ling and D1 who were the tenants of the flat. The police party searched and inside the bottom drawer of a small cabinet were .found two red Lai Sze packets, a cigarette packet and a wrapped piece of toilet paper, all containing drugs. On the awning outside the window to the room they found a black plastic bag which contained 43 packets of drugs and a white plastic bag with two blocks of No.4 heroin. A further block of No.4 heroin was found in a wooden cabinet in the room. The search also uncovered a large number of plastic bags, a pager, a mobile telephone, cash and a set of scales. That last had traces of drugs on it.

6. Wong Chi Ling said she was being paid to store the drugs. Further, part of the No.3 heroin was for her own consumption. There was admitted evidence that, on the purity level pertaining in January of 1989, the quantity of No.4 heroin referred to in count 1 would convert into 26,689 grammes of No.3 heroin.

7. Wong Chi Ling had previous convictions, blackmail in May 1977, theft and membership of a triad society in November 1977, at a later date in that same month, a conviction for trafficking in dangerous drugs - on this last she received sentence of one months' imprisonment - and misleading a police officer in 1987. She worked in the Canton Disco as a cashier at the time of these offences She is aged 29.

8. In the course of the sentencing process the trial judge was informed that No.4 heroin was not usually put on the market in Hong Kong but was for export but that there was starting to be shown an increasing use of No.4 heroin by drug wholesalers in Hong Kong.

9. Mention was made of The Queen v. Cheng Yeung [1989] 2 HKLR 258, a judgment delivered by another Division of this Court on 14th April 1989 subsequent to the commission of the offence here.

10. In passing the sentence he did Mortimer, J. indicated that after trial sentence in the region of 20 years' imprisonment would have been imposed. He gave a reduction of 5 years for the plea and, by making the sentences on count 1 and court 2 run concurrently, had in mind totality.

CA496/1989

11. Leung Kwan had been tried and convicted before His Honour Judge Rattigan in the District Court of the offence of possession of 31.81 grammes of a mixture containing 25.63 grammes of salts of esters of morphine. The offence was said to have taken place on 24th January 1989 at No.61-C7, Tai Lung Tsuen, Sheung Shui.

12. On 19th March 1990 another Division of this Court dismissed his appeal against conviction. In the premises in which these drugs were found there was also found a set of scales which bore traces of dangerous drugs. A second set of scales was found in a car parked outside the house. Leung Kwan accepted that both these scales and the drugs were his but that the drugs were for his own consumption.

13. Oh 9th April 1990, well out of time, Leung Kwan applied for leave to appeal against sentence out of time. In his affirmation grounding that application he said he followed his counsel's advice and appealed against conviction only. Now that the application in respect of his conviction had been refused he sought leave for the extension of time in respect of sentence. In a further affirmation dated 6th August 1990 he said, in its paragraph 2, that he was advised by trial counsel that he should not appeal against sentence but only against conviction. He further stated in paragraph 3, that, having seen a newspaper report of the criticisms levelled in a High Court trial by the trial judge at the notional conversion method, he feels that his sentence was too severe for the persons sentenced by that High Court judge had possessed far more No.4 heroin than he did and received a lesser comparative sentence.

14. There was evidence before Judge Rattigan to the effect that the quantity of No.4 heroin here would convert into 436 grammes of No.3 heroin. In considering the sentence to be passed the judge said:

"I cannot however subscribe to the view that the defendant can or should be sentenced on the basis of the 31.81 grammes of No.4. After conversion that comes to 432 grammes of No.3 and it is on that basis tile defendant has got to be sentenced.

 

        I can however keep the sentence in the lower end of the scale of 5 - 8. The amount. in question really calls for about 7 years as the amount is really under the half way mark."

The sentence he imposed was one of 5 years' imprisonment.

15. In both cases it is Miss Sze Kin's submission that the offences, having been committed before the delivery of the judgment in Cheng Yeung, the Notional Conversion Method should have been ignored and the respective applicants should have been sentenced by a strict application of the principles and guidelines laid down in R. v. Chan Chi Ming [1979] HKLR 491, that is on the basis of the quantity of the mixture, without taking into consideration any conversion of it into No.3. She referred us to the following passage at page 14 of the judgment in the consolidated appeals 230 and 269 of 1989 which, for ease of reference, we shall refer to as The Queen v. Lau Tak Ming (unreported):

"Further that, if evidence were adduced to show that the mixture was likely to be converted into a considerably greater quantum '' of mixture to be commonly consumed, a penalty heavier than that in the guidelines might be imposed."

- and submitted that no heavier penalty can be imposed unless direct evidence is produced to show that the mixture was likely to be converted not merely that it could be. She buttresses that last submission by reference to a passage in Suvit v. The Queen [1982] HKLR 323 where the Court said at page 325I:

"        There was no evidence given in the present case, nor any statement by way of agreement between counsel, to indicate that the esters of morphine would inevitably be converted into a substance of considerably greater quantum than would' be the case if the mixture seized had been composed mainly of salts of esters of morphine." (Emphasis supplied)

16. In the subsequent case of The Queen v. Pravit in which judgment was delivered on 27th October 1982, but which is reported at [1989] 2 HKLR at page 169 - and we bear in mind that both Suvit and Pravit were concerned with esters of morphine - counsel then appearing for the applicant had mounted an argument very similar to that of Miss Sze Kin. Of it the Court said at page 171:

"We would accept that, subject to an accused' right to call evidence in rebuttal, once the seized mixture is shown to contain esters of morphine and once there is evidence, either direct or by agreement, that the seized mixture is capable of being converted into a substance of greater volume which can be sold directly for consumption, then there is sufficient evidence to satisfy the test laid down in Suvit and, in turn, following that case, to lead to the application of the guidelines in Chan Chi Ming to the quantum of that saleable mixture."

17. It may well be that the passage quoted from Lau Tak Ming in its reference to "evidence adduced to show -- likely to be converted --'' was somewhat infelicitously phrased. Being the author of that judgment I should like to make it clear that the Court in no way intended to derogate from the passage we have quoted from Pravit. If there is evidence as to the capability of conversion then that is enough.

18. It must be remembered that notional conversion did not spring new born from Cheng Yeung. It had been in existence since at least 1982 and has been used by Courts' both in respect of esters and of salts of esters, where evidence has been given of it, since them. Indeed the applicant in Cheng Yeung had been sentenced by the trial judge to 18 years' imprisonment on the basis of a conversion from No.4 to No.3. As was said in Lau Tak Ming at page 14:

"         So, prior to Cheng Yeung, it has been generally the position that the Chan Chi Ming guidelines were looked at and extended to take into account the conversion."

19. Each of the Courts in Chan Chi Ming, Suvit, Pravit, Cheng Yeung and Lau Tak Ming was considering the evidence before them as to the then state of the drug market in Hong Kong. While Cheng Yeung and Lau Tak Ming revised the guidelines as to the quantum of sentence, the principles as to conversion were not affected.

20. It cannot be right that the Courts should be required to ignore evidence that the quantity of drugs found is capable of conversion into a very much greater quantity of a saleable mixture. Indeed the Chan Chi Ming guidelines provided for cases of an "unusually serious nature" when it made reference to its fourth category: "very substantial (above 1000 grammes)": for which the recommended sentences ranged from 8 to 12 years, by permitting the extension of that range in such cases.

21. Mortimer, J. when sentencing Wong Chi Ling was entitled to consider the guidelines in Chan Chi Ming and to extend his sentence beyond those guidelines because of the very large quantity of No.3 produced by the conversion - even by strict Chan Chi Ming guidelines the total mixture was over two kilos. We note that in Cheng Yeung the quantity was only a little less than that here and in that case the Court, because it was setting out fresh guidelines as to the quantum of sentence, thought it only right that the applicant should not suffer from them. It reduced the sentence of 18 years' to one of 14 years to reflect that. In the light of that which we have said the sentence of 15 years over all passed upon Wong Chi Ling, while on the high side of the gradually curving graph, is not such as in our view would warrant the interference of this Court. Her application to appeal against sentence is refused.

22. Leung Kwan, because of the conversion factor, brought himself within the third category of Chan Chi Ming - "substantial" (150 to 1,000 grammes) which made available a range of sentence of from 5 to 8 years. 436 grammes was well beyond the lower limit and there was no plea.

23. In Leung Kwan we have, lest we should shut out a meritorious appeal, considered the merits of the arguments advanced as well as the reasons for the delay. We do not however consider that leave should be granted for leave to appeal out of time. In our judgment Leung Kwan, while he may think that he has been treated more harshly than were those in the other case to which he has made reference, does not have any justifiable sense of grievance for in our judgment the sentence imposed on him was by no means wrong. (see The Queen v. So Hung Lee and another [1986] HKLR 1049.) We would refuse leave to appeal out of time.