HKSAR v. WONG KA KUEN AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.35
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 2nd January 1998, the 1st Applicant (D1 at trial) was convicted of two counts of trafficking (Counts 1 and 2) in heroin hydrochloride following a trial before Deputy Judge Suffiad (as he then was) and a jury. On 5th January 1998, he was sentenced to a total of 24 years' imprisonment for the drugs offences and to an additional 10 months' imprisonment for possessing a forged Hong Kong Identity Card. He now seeks leave to appeal against conviction.

2. The 2nd Applicant (D2 at trial) pleaded guilty at the outset to the trafficking offence in Count 2 and manufacturing heroin hydrochloride in Count 3. He had 10 previous convictions and was a drug addict. He received a sentence of 19 years' imprisonment on Count 3 and 17 years' imprisonment on Count 2 to run concurrently. He now seeks leave to appeal against his sentence on the ground that he was not given a discount of one-third from the starting point taken by the judge.

3. Turning to D1's application, the first of his grounds of appeal is that the judge wrongly ruled that there was a case to answer on Count 2. It is convenient to take this ground straightaway because, when the judge made his ruling, he more or less outlined the allegations made against D1. Count 2 related to a mixture containing nearly 3.7 kilos of heroin hydrochloride together with a small variety of other dangerous drugs which D1 was alleged to have been engaged in trafficking at Room 6, 1st Floor, Block 2, Ho Shun Yee Building, Fung Yau Street East, Yuen Long. The submission of no case related also to the 3rd Count on the Indictment of manufacturing heroin hydrochloride. On this charge, the jury ultimately acquitted D1.

4. The ruling of the trial judge is found at page 155 in the Appeal Bundle and references to "Room A" relate to a room that is contained within Room 6, which is really the name of the flat. The way that the judge ruled was as follows :

"...the evidence against the defendant [D1] is that he was seen to have come out of Ho Shun Yee Building with LEUNG Yui-kwong [D2]. When he was shortly thereafter stopped by police, he was holding a red paper bag in which heroin, packed in sealed drinking straws and also in four packets - four polythene packets - were found. There were also empty drinking straws inside the red paper bag he was holding.

The defendant was also in possession of a key which could open the main gate of Ho Shun Yee Building on the Ground Floor (Exhibit P124). The defendant was also further found in possession of a key labelled as key no.4 in Exhibit P126 which could open the letter-box of the premises, as well as 13 other letter-boxes, in that building. He was also found in possession of a key which fitted a padlock on the door of Room A in the premises, this key being labelled key no.5 of Exhibit P126.

Room A in the premises was found to contain most of the dangerous drugs in the premises, as well as a large amount of additives. The defendant's fingerprint was also found on a folding table, a clock lamp and a white plastic bag which contained empty drinking straws in Room B of the premises. Also, his fingerprints were found on two masking tapes which were stuck onto the blinds of Room A's window, possibly to prevent persons from outside the building from looking in through the window or the blinds.

Whilst the defendant did not have on him any keys which gave access to the premises itself per se, however, LEUNG Yui-kwong, who was the person seen coming out of Ho Shun Yee Building with the defendant, did have on him a key which could open the main door of the premises and LEUNG's fingerprints were found on many items inside the premises - some of which were related to drugs or to additives in the premises.

There is also a record of interview from the defendant in which the defendant denied ever having been in the premises in which his fingerprints were found.

On the authority of Attorney-General v LEE Fuk-shiu, Ronald, I am of the view that, assuming proper directions to the jury, the totality of this evidence could, may or might be inferred by the jury in future that this defendant not only had knowledge of the drugs found in the premises but, from the fingerprints found on the masking tapes, the same jury could, may or might infer that the defendant had assisted in putting up the masking tapes to prevent persons from outside from spying into the premises with the knowledge that the premises contained drugs and that manufacturing process was going on inside."

On the totality of that evidence, the judge left the matter to the jury.

5. In the view of this Court, the inferences to be drawn from the body of evidence to which the judge had referred was strongly indicative of a prima facie case. There is no substance to Ground 1.

6. In the 2nd Ground of his Amended Perfected Grounds of Appeal, Mr Hoosen advances this proposition-

"There was in all the circumstances of the case no sufficient evidence upon which the Applicant could have been convicted on Count 2, especially in that there was no evidence of the Applicant having any custody or control of the dangerous drugs in the premises, or being in possession of any key by which he could gain entry or access to the said premises."

This ground is materially different from the originally drafted perfected ground, and we would remind Counsel of the Practice Direction that where amendments are made, they should be underlined in red. We do not need to go into this ground in any depth at all. It is without even a semblance of foundation because as we have already indicated from the 1st Ground, there was evidence from which the jury could draw the inference that the Applicant was guilty on Count 2.

7. The 3rd Ground is equally without substance. It is not only without substance, it actually misrepresents, unintentionally we accept, what the judge directed the jury. Reading from Ground 3, Mr Hoosen's submission has been that-

"The learned trial judge wrongly directed that an open padlock (the key to which was in D1's possession) found hanging on the door frame of a room in the premises showed that D1 had control and custody of the dangerous drugs in that room, when there was no evidence that that padlock had ever been used in securing the door to that room."

The summing up on this point could not have been more helpful and was faultless to a degree. At page 28 Q of the summing up, the judge said this :

" Now, Mr Hoosen, when he was cross-examining this defendant, referred him to photograph 26 and asked him the following question. 'Do you see the padlock on the right of the photo?' Answer, 'Yes.' Next question asked by Mr Hoosen, 'Is that the same padlock shown in photograph 27?' Again the answer given by the witness was 'Yes.' Next question, 'Do you recognise the padlock on photograph 27?' And the witness answered, 'This should be the one hung on outside of Room A on the door frame.' Next question, 'Was the padlock in this position as in photograph 27 when you first saw it?' Answer by this witness, 'Yes.'

Question, 'It was not locking, but opened?' Answer, 'Yes.' Next question, 'You took it off and tried the key on it?' Answer, 'Yes, I did lock the padlock and used the key to open it again.' Now from this series of questions asked by Mr Hoosen, and the answers given by the witness, it clearly shows that when the police first entered the flat on 30 January 1997, the padlock was as shown in photograph 27, hanging on the ledge unlocked. The evidence of LEUNG Yui-kwong [D2], you would remember, was that he had taken over the flat some days after 20 November 1996. LEUNG also told you that, after he took over the flat in late November 1996, the defendant had never been to the flat.

In cross-examination by Mr LIU [for the prosecution], LEUNG Yui-kwong [D2 gave evidence on behalf of the Defence] said he had never used that padlock but had left it there since it did not cause him any difficulty in closing the room door. Well members of the jury, it is a matter for you, but do you not think it is somewhat strange that the defendant leaves behind an opened padlock hanging on the ledge fixed to the door frame of Room A, and LEUNG Yui-kwong would let it hang there for some two months after he took over the flat, without so much as removing it or replacing it with another padlock which he could use, particularly when you have regard to the fact that a substantial amount of valuable heroin was stored in Room A.

If therefore you take the view that this opened padlock left hanging on the door frame of Room A was not a disused padlock, the fact that the defendant was in possession of a key which could open this padlock, a fact which is admitted by the defendant, is a factor that you can take into consideration in deciding whether the defendant did or did not have custody of Room A, or of the articles and items inside Room A. However, you must bear in mind my earlier direction to you, about drawing inferences adverse to the defendant. For your benefit, I shall repeat it once again here...." (emphasis added)

Stopping at that point, the judge went on to give an impeccable direction as to the jury's approach to the drawing of inferences. We would also remind Counsel, as to this ground, of the Practice Direction in relation to criminal appeals that where grounds are put forward, they should be settled with care and accuracy. This is singularly lacking in the present example and there is nothing at all in this ground.

8. The 4th Ground of Appeal is that-

"The learned trial judge erred in not discharging the jury after highly prejudicial evidence was elicited (in chief) from PW1 that the area where the Applicant was seen with the D2 was well known for criminal activities."

PW1 was Police Constable 50061 who had, in the course of his evidence, been asked in chief at page 116 E this question :

"Q. ...So you said you suspected them. What made you say you suspected them?

A. It's because of the movement they did during our observations and because of the criminal activities in the area. Therefore, I suspected that they might be in possession of something illegal."

This passage then led to an application for the discharge of the jury on the ground that the evidence was highly prejudicial. Mr Hoosen submitted to the trial judge that this was analogous to a situation where a defendant is referred to as a 'target'. The phrase 'target' is indicative that the suspect himself is known to be a criminal, but so far as the expression "criminal activities in the area" is concerned, there is no such implication and we take the view that the judge was right to disallow the application to discharge the jury. There is nothing in that expression that indicated that this Applicant was known to the police.

9. The 5th Ground is that -

"The learned trial judge erred in not discharging the jury when it was clear that they had been speculating for some hours during their deliberations as shown by the questions they asked when seeking further directions in relation to matters not in evidence."

How Mr Hoosen, without speculating himself on the length of time the jury spent on matters of no particular significance, is able to say they had been speculating for several hours is not possible to say.

10. The jury did return with a number of questions and these are dealt with in the transcript at page 42. It is quite right to say that some of the questions may well have been a little unfocused. This is a situation that is by no means unusual. The judge's task at this point was to focus the judge's attention on what was important. It is unnecessary to read what the judge said to the jury at pages 42 to 45. Politely, calmly and clearly, the jury was told not to speculate, and in due course they were sent back to continue their deliberations.

11. Particular concern is expressed over the second question raised, which relates to the electric bills. The jury was told in no uncertain terms that they were to disregard the contents of those bills and not to speculate about them. There is no substance to this point.

12. There is nothing unsafe or unsatisfactory about these convictions and the application made by the 1st Applicant is dismissed.

13. Turning now to D2's application in relation to sentence, he complains in his homemade grounds of appeal that his 19 year sentence was too long bearing in mind his co-operative attitude from the outset. As earlier indicated, the Applicant, in particular, complains that he was not given the full one-third discount to which he feels he was entitled.

14. We need say no more than that he has a point of substance. The trial judge took a perfectly proper starting point on the manufacturing count of 27 years' imprisonment, and equally properly took 24 years as the starting point for the trafficking offence. Where the judge fell into error is that he said (at page 67 P) :

"...Mr Hoosen has asked me to give you the full credit for your plea of guilty. In normal case, a full credit for plea of guilty would be a one-third discount. In the present case, in view of the evidence there was against you, it would be difficult to see what other alternative you would have had apart from pleading guilty."

The judge had already indicated that he accepted the mitigation that it had always been D2's intention to plea guilty. This Court has stressed on frequent occasions that in the absence of good reason where a timely plea has been entered, a defendant is entitled to his full one-third discount. Being caught "red-handed" is not, in the view of this Court, a sufficient reason to disallow the full discount. Accordingly, the sentences imposed on D2 were wrong in principle.

15. We shall treat this application as the hearing of the appeal, and we substitute for 17 years, a sentence of 16 years' imprisonment on Count 2 and for 19 years on Count 3, we substitute a sentence of 18 years' imprisonment. To this extent the appeal is allowed by reducing the total sentence to be served by D2 to 18 years' imprisonment.