R. v. TANG SIU-CHEONG

IN THE COURT OF APPEAL

1995, No. 336
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 2 May 1995 the applicant was convicted by Deputy Judge Candy in the District Court for a joint offence of trafficking in a mixture containing 19.95 grammes of heroin. He was sentenced to 5 years imprisonment.

2. He applies for leave to appeal against both conviction and sentence.

The facts

3. On 5 November 1994 the applicant with his co-accused, Leung, alighted from a red car in Chik Chuen Street near the 'Mobil' petrol station. Leung had in his inside pocket 5 packets containing the drugs. The two of them were approached by police officers. Leung fled but was quickly caught after which a search revealed the drugs. Leung made replies to the offices denying the offence. He was also found to be in possession of $2,300 odd. The applicant who had waited with another officer was also searched but nothing was found on him. After the drugs were found on the other man, he was arrested and after caution, he replied:

"Ah sir, give me a chance. The white powder belongs to She Chai. I just help him to deliver it to customers. I am unemployed. So I help out to earn money."

The two who were arrested were taken to the police station. The police officer (PW4) made a post-record of the conversation with the applicant which was signed by him. He was then interviewed by the same officer and made a statement under caution, also admitting that he was assisting Leung to traffic in drugs by taking the drugs to the customers; he was paid some $600-700 a day for that assistance.

At trial

4. The applicant gave evidence that he knew nothing of the drugs, that he was being assaulted into making admissions after he first refused to sign and that the police had made up the cautioned statement which he later wrote out and signed. There was a voir dire and the judge admitted into evidence the post-record and the cautioned statement. He did not accept the complaints of assault and found the medical evidence did not support the allegations. He accepted the officer, PW4's evidence of the arrest, the making of the admissions and their truth.

5. Mr McGowan, for the applicant, contends that the judge ought not to have accepted that evidence of the applicant's admissions. He takes the point that there was such a serious discrepancy between the police officers and that he did not consider this discrepancy and so this Court ought to interfere and allow the appeal.

6. The point is this. The police officer to whom the admissions were made testified that during the taking of the post-recorded statement and the cautioned statement, only he, PW4, and the applicant were present. That the post-record statement was taken between 10.55 and 11.31 in the evening, and the cautioned statement between 11.33 and 45 past mid-night. He said that the times recorded were accurate. The duty officer (PW2) said that he saw and examined the applicant at about 11 p.m. having come on duty at about that time. That is said to be a serious discrepancy between the two officers because it would follow that the duty officer could only have seen and examined the applicant between the taking of the two statements - that was between 11.31 p.m. and 11.33 p.m. - during those two minutes and it could therefore only have happened in the room where the statements were being taken - Room 17A.

7. It is to be noted that although these two witnesses gave evidence of that timing, neither was cross-examined on the point now being made. Nor was it put that the timing must have been wrong because of what was recorded on the statements or what was said by the other officer. So in evidence the matter was left largely unresolved. The point was taken by counsel at trial in his final submissions. So the judge himself dealt with it. Having set it out, he said:

"In my view there is no discrepancy between PW2 and PW4. PW2 must have seen D2 [the applicant] between the making of the post-record and the subsequent interview under caution. In any event the question does not in any way affect the credibility of the prosecution witnesses in regard to the interview under caution with D2.

Having considered all of the evidence against D2 I am satisfied that the PWs are credible witness on whom I can rely."

In other words the judge, having identified the discrepancy, decided that this was not a material discrepancy which in any way affected his judgment of the credibility of the witnesses. No doubt he could have added that the matter was not developed in cross-examination. So far as that matter is concerned, there is nothing in the point. The application for leave to appeal against conviction is refused.

The application to appeal against sentence

8. Mr McGowan goes on to seek leave to appeal against the sentence. The ground is simply this. The two accused, one being the applicant, were sentenced by the judge to the same length of imprisonment - 5 years for each. He took the guideline from R. v. Lau Tak-ming and said:

"For 19.95 gms of narcotic the appropriate sentence would be 6 years' imprisonment.

However in view of the relative youth of each Defendant I will not go above this lower end of the guidelines."

He therefore sentenced them to 5 years.

9. Mr McGowan says that the judge must have misapprehended the role of the two defendants. The basis being that in his cautioned statement and his admissions, the applicant said that he was simply helping the other accused by delivering to customers because he was unemployed and out of work. Whereas it is far from certain that the judge did misapprehend his role, the question we must consider is whether the sentence of 5 years imprisonment was either wrong in principle or manifestly excessive. When that sentence is considered in that light - at the bottom end of the guidelines - there are no grounds for saying that this sentence was either wrong in principle or manifestly excessive.

10. The application for leave to appeal against sentence is refused.

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