R. v. TSE YEUNG LAI

IN THE COURT OF APPEAL

1994, No. 445
(Criminal)

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J U D G M E N T

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Nazareth, V.-P.:

1. Sitting with a jury, Kaplan J on 9th August 1994 convicted the applicant of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to s.7 of the Dangerous Drugs Ordinance.

2. The particulars of the offence were that on 2nd May 1992 outside Flat 15, 4th floor, Kam Fung Lau, Tsui Fung Street, Kowloon, he had in his possession dangerous drugs, namely 84.08 grammes of a mixture containing 34.22 grammes of salts of esters of morphine and 2.94 grammes of methylamphatamine hydrocholoride, commonly known as 'Ice', for the purpose of unlawful trafficking. He was sentenced to seven years imprisonment and he now seeks leave to appeal against conviction and sentence.

3. Mr Wong Po-wing appears for him only in relation to the application for leave to appeal against sentence. Appearing in person on his application for leave to appeal against conviction, the applicant pursues his grounds in his written notice which were:

(1) that he wished to call a witness but his request was not granted;

(2) that the judge misled the jury in relation to the value of the drugs. His point being that the drugs were found or alleged to be in small packets and that in fact, he says, he did not have them in small packets, and therefore could have acquired them at a much lower, affordable amount than the $29,000 alleged (which he complains it was suggested he could not afford).

4. Before us, he raised a host of other minor points, complaining about the judge's directions; the absence of his finger-prints being on the wrapping in which it was alleged the drugs were found on him; the prosecution being allowed to refer to his previous convictions; and about not being accorded a proper direction on the benefit of the doubt and so forth. However, looking at the very full summing-up that the judge gave, extending to no less than 48 pages of transcript, it can be seen that there is nothing in these complaints. We refuse leave to appeal against conviction.

5. We turn then to the application for leave to appeal against sentence. Mr Wong made the application in the following way. He first of all pointed to the repeal of s.7 of the Dangerous Drugs Ordinance which was effected by Ordinance 52 of 1992, some six weeks after the offence was committed. His submission seems to be that the position shortly after the offence was committed was changed so that the offence under s.7 survived thereafter only as the lesser offences of simple possession, or trafficking in a dangerous drug under s.4. The fact remains that nonetheless the charge the prosecution were entitled to prefer was one under s.7. The applicant was properly convicted, as Mr Wong concedes, of a charge under s.7. We cannot see where the comparison leads to or what advantage can be gained from it. There is plainly no merit in the point.

6. Mr Wong's next point related to the unfortunate history of this case. His conviction by Kaplan J resulted from his third trial. There had been no less than two former trials. In the first, in December 1992, after two days counsel was discharged because apparently the applicant had no confidence in him. The next trial was in June 1993. At that time he was charged on two counts. The judge found there was no case to answer on one count, and ordered a re-trial on the other. So he finally came before Kaplan J in August 1994. Undoubtedly, that is a factor that should be taken into consideration. It prolonged the time that the charge remained hanging over him. And no doubt it was also inconvenient; but it was hardly a recognised discount factor.

7. Mr Wong submits that the judge did not allow a sufficient discount in respect of this matter. He points to the tariff in Lau Tak-ming [1990] 2 HKLR 370 which is five to eight years in respect of 10-50 grammes of narcotic. He submits that the judge did not indicate a starting point and that the seven years he arrived at is very close to the top end of the five to eight year bracket. The judge, of course, does not have to state his starting point although that is desirable. In this case, the applicant has what can only be described as a bad record of a whole string of convictions including possession of dangerous drugs and possession for the purpose of unlawful trafficking.

8. In Lau Tak-ming at p.385F, Silke V-P said this in relation to the foregoing guideline:

"There are, apart from the guidelines themselves, only two matters which require further consideration [in that case]: the existence of a clear record and the allowance if any to be made for the offender who has 'very small' quantities and who may himself be an addict, selling on a small scale to fund his addiction or being paid by his masters by the supply of drugs for his own use.

If there exists a clear record or a plea, then the sentencing Court may take one or both such factors, as the case may be, into account when arriving at what it considers to be the proper discount."

Mr Wong stresses the small quantity here. However, there was no question of a clear record and Mr Wong did not seek to suggest there was anything like that. Indeed, as Silke V-P said in Lau Tak-ming at p.385E:

"Previous convictions for drug trafficking may still lead to an increase within the sentencing band."

More than that, there was also the quantity, small that it was, of 'Ice', the deleterious nature of which was explained by Silke V-P in Ching Kwok-hung [1991] 2 HKLR 125 at 128-130. The judge had also to take into consideration the possession of 'Ice'.

9. Looking at the matter in its totality, it can be seen that the judge was plainly within the permissible band in Lau Tak-ming. As to the three trials and the delay, his express mention of them indicates that he did not overlook them. The judge has not proceeded on any error of principle. Nor can the sentence be said to be excessive. In the result, there is nothing that warrants interference with the sentence. It follows that there is no merit in either the grounds of appeal against conviction or sentence. We refuse leave to appeal in respect of both conviction and sentence.