R. v. LAM KIN CHOI

Criminal practice and procedure - sentence following plea of guilty - whether matters put forward by counsel in his speech in mitigation necessitated a Newton hearing - whether unfulfilled promise to assist authorities relevant as mitigating factor.

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. This is an application by Lam Kin Choi for leave to appeal against sentence. On 18th March 1992 the applicant appeared in the High Court before Leong, J. on an indictment charging him in two counts with possessing dangerous drugs for the purpose of unlawful trafficking therein. Upon arraignment he pleaded not guilty to both counts. Some 20 minutes later, leading counsel then appearing for the applicant asked for the pleas to be taken again, whereupon the applicant pleaded guilty to the 1st count and not guilty on the 2nd count.

2. When the facts relevant to the 1st count were read out in court, leading counsel said that they were admitted by the applicant and Crown counsel then offered no evidence on the 2nd count; the applicant was duly acquitted on that count.

3. The facts admitted by the applicant were as follows:

"    Starting from the afternoon of 17th September, 1990, a team of Customs & Excise Officers staged an anti-narcotic surveillance operation in the vicinity of Hiu Ming Court, No. 30-32, Hiu Kwong Street, Kwun Tong. At about 01:45 hours on 18th September, 1990, the defendant was seen coming out from Room 12, 5th floor, Hiu Ming Court. He was then accompanied by a man called Lee Kin-wo at the time. The Customs Officers stopped both the defendant and LEE at the 5th floor corridor. The defendant was body searched by Customs Officer no.83213. As a result of the search, a paper bag containing 2 laisee packets which in turn contained suspected dangerous drugs were found concealed at the trousers waist-band of the defendant. A wallet containing, inter alia, cash HK $6,446. - was also found in the right pocket of the trousers worn by the defendant.

    Subsequent chemical analysis carried out by the Government Chemist revealed that the suspected dangerous drugs found were 54.75 grammes of a mixture containing 45.76 grammes of salts of esters of morphine."

4. After the judge had heard the applicant's antecedents and leading counsel's speech in mitigation, he imposed a sentence of six years' imprisonment and it is from that sentence that the applicant now seeks to appeal. In passing sentence the judge indicated that he was taking two mitigating factors into account in not fixing the term to be served at 8 years - the applicant's plea of guilty and his offer (which had been accepted) to assist the Customs & Excise Department in the further investigation of his erswhile co-accused and to give evidence against him in court.

5. We would mention here that this court has for some time consistently held that it is improper to allow the term of a sentence to be influenced by a yet unfulfilled promise to assist the authorities whether by giving evidence or otherwise: see R. v. Ng Hon Kit [1991] 1 HKLR 56, at p.60 and R. v. Sze Tak Hung [1991] 1 HKLR 109, at p.111. Leading counsel should not have put that matter before the court in mitigation and the judge should not have taken it into account.

6. The applicant's ground of appeal, which Mr. McCoy has appeared before us to support, is that the judge had failed to take into account a highly relevant mitigating factor and to make any finding of fact in relation to it; the sentence imposed was therefore wrong in principle and/or manifestly excessive. The mitigating factor related to the fact that the drugs which were the subject matter of the charge to which the applicant pleaded guilty were in two packets.

7. Leading counsel had told the trial judge that despite what appeared in the applicant's antecedent statement, he was in fact a drug addict. He said that he had been instructed that on the day in question the applicant had gone to the flat of the person against whom he would give evidence (who had absconded in the meantime) and bought some drugs for his own consumption. As he was leaving the flat, that man had asked him to take another packet of drugs to a third person. In counsel's words : "My Lord, this explains why on the person of the defendant they found two packets of dangerous drugs; one packet was for the defendant's own consumption, another packet was for Ah Shing". That assertion is effectively the basis for the ground upon which this application is made. Leading counsel then said this to the court:

"    He may help to explain that both packets are almost of equal weight but of course, my Lord, he has pleaded guilty to the two packets on this basis that at that time obviously, and common sense would suggest that he had not decided which packet of dangerous drugs he will be giving to Ah Shing and the reality of the situation is that he had two packets with him. It is on that basis he has pleaded guilty to the two packets of dangerous drugs for the 54.75 grammes for the purpose of unlawful trafficking therein. So we say that technically, he is guilty of trafficking in relation to all both packets. But we urge your Lordship to take into account that he was a drug addict albeit he is no longer since he has been in custody now for 18 months and he was an occasional drug addict because of the irregular hours he kept.

    We understand, according to the instructions, that he paid $4,000 to the 2nd defendant for one packet of dangerous drugs and that would last for about a month, but that is on the assumption that he consumed it on a daily basis, but he did not consume dangerous drugs on a daily basis but only, we understand, on those occasions when he had to keep very long and irregular hours."

8. In his list of authorities Mr. McCoy mentions Meah and Marlow (1991) 92 Cr App R 254 a decision of the English Court of Appeal, Criminal Division. In that case the appellants pleaded guilty to importing substantial quantities of prohibited drugs from which heroin is made, on the basis that the drugs were for their own consumption. The trial judge was suspicious about this claim but did not hold a Newton [(1983) 77 Cr App R 13] inquiry. McCowan, L.J., giving the judgment of the court, said this, at p.256:

"    When one looks at the whole of the facts, the Court does not find it surprising that the judge declared himself suspicious that he was not being told the truth about the destination of the drugs. This Court would have been equally suspicious or more of a defendant saying through counsel that an importation of drugs in amounts like this concealed in this way at considerable risk to health was for his own consumption. When a suggestion of this sort is made, the judge should hold a Newton enquiry unless the suggestion is so absurd that it can be rejected out of hand. Having declined to a hold a Newton trial, the learned judge in our view had to sentence on the basis that he had accepted that these large amounts of the drugs were in fact required and intended for use by the two appellants for their own consumption. That must make a considerable difference to the kind of sentence that he had to pass."

9. The same approach is seen in the decision of this court in Attorney General v. Lau Chi Sing [1987] HKLR 703. There the accused had been charged with trafficking in dangerous drugs. He was found with the drugs at an immigration point on his way to China. In the light of the definitions of the words "export" and "trafficking" in the relevant Ordinance, the Court held, by a majority, that an offence of trafficking had been committed. At p.708, Silke, V.-P. had this to say:

"    The Ordinance is intended to deal with all offences concerning dangerous drugs. If a person takes or causes to be taken dangerous drugs out of Hong Kong then he is exporting them and it matters not that he intends to use the unlawful substance for his own consumption once he leaves the Territory. It is in my view clear that while quantity may go to mitigation of sentence, it is not a defence to the charge once the knowing possession and the taking out have been proved. The presumption under s.46 is irrelevant.

    It follows therefore that a conviction for exporting should have been come to in this case but it was open to the trial judge, if he believed that this substantial quantity was in fact for the respondent's own consumption, to reflect that belief in sentencing the offender."

10. R. v. Chan Mung Lung, Criminal Appeal No. 394 of 1991, 24th April 1992 (unreported), referred to in the notice of appeal, was another case where the point arose. The accused pleaded guilty to trafficking in dangerous drugs by importing them into Hong Kong from China. In mitigation it was said that the accused had bought the drugs for his own consumption. Penlington, J.A. gave the judgment of the court, and at p.4 of the transcript observed:

"    The question of whether or not the applicant was bringing the drugs into Hong Kong for his own consumption or for re-sale was highly relevant to the question of the proper sentence to be passed, and if they were only for his own use, was a strong mitigating factor. On the authority of Costley we consider that, in the absence of a finding on this point, a sentence should be passed which reflects the factual version most favourable to the applicant."

11. What is a common feature about these three cases is that all the defendants pleaded guilty to offences which involved the import or export of prohibited drugs and on the facts which were admitted they had so dealt with all the drugs with which they were found. They then sought to pray in aid the mitigating factor that all (or some) of the drugs were for their own use, but without attempting to derogate from their pleas of guilty.

12. It seems to us that the present case is easily distinguishable. What the applicant admitted was that he had in his possession 45 grammes of dangerous drugs for the purpose of unlawful trafficking therein. That is to say that all the drugs found on him were possessed for that purpose. Therefore it could not be a mitigating factor that he possessed, say, only 25 grammes of those drugs for the unlawful purpose stated in the particulars of offence and possessed the remainder for his own use. What has come to be known as "simple" possession and possession for trafficking are very different offences, and the cases show that for the latter offence the severity of the tariff sentence is, to all intents and purposes, governed by the quantity of dangerous drugs involved.

13. With great respect to leading counsel who acted for the applicant in the High Court, we find it impossible to understand the logic of his submissions. If he really expected the court to sentence the applicant on the basis that he possessed only half the drugs he was caught with for unlawful trafficking, this would have been on a factual basis inconsistent with the plea of guilty.

14. What is perfectly clear is that the applicant had the benefit of the advice of leading counsel before he changed his original plea and that he pleaded guilty to the possession for trafficking of 45.76 grammes of salts of esters of morphine. There can have been no mistake about that in view of leading counsel's statement in the passage from his speech in mitigation we have cited confirming that he had pleaded guilty to possessing both packets of drugs for unlawful trafficking. Therefore it was not, perhaps, very surprising that the judge appears to have taken no notice of the assertion that only half of the quantity of drugs found on the applicant was for trafficking and did not think it necessary to suggest that if this line were persisted in, an application to withdraw the plea of guilty would be necessary.

15. While the position might have been different if the applicant had been unrepresented or if an inexperienced counsel were acting for him, we do not think that it was incumbent upon the judge to say to very experienced leading counsel that his plea in mitigation appeared in part to be inconsistent with the plea of guilty. In our judgment, leading counsel's submission to which we have referred (and upon which Mr. McCoy's application is wholly founded) falls into the category of those that the judge was fully entitled to ignore without comment, since it was untenable while the plea of guilty to the charge, as framed, stood.

16. The application is dismissed.