R. v. YEUNG CHI-SING

HEADNOTE

Conviction: doctrine of issue of estoppel - extent of applicability of doctrine in criminal cases - onus upon defendant who seeks to argue that a jury has already resolved an issue in his favour in earlier criminal proceedings.

Sentence: Sentences for offences involving possession of amounts in excess of 1,000 grammes where the offence was committed before the decision in R. v. Cheng Yeung are of no existence in the assessment of sentences for offences involving such amounts committed after the date of that decision. The tariff in R. v. Cheng Yeung has application to offenders even though it has not been established that they are more than couriers or persons who stored the -dangerous-drugs.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. At 5.25 a.m. on 19th April 1989 the police arrested the applicant outside a shed in Ping Yeung Village, Ta Ku Ling. At that time he was carrying a Sunshine orange carton which was found to contain dangerous drugs. Earlier that morning the same police party had apprehended a person named CHAN Koon-wing at his home and, having taken him to that shed, had, at 1 a.m., there arrested him.

3. The applicant was tried twice. At the first trial, he and Chan Koon-wing were jointly charged on one count of having in their possession for the purpose of unlawful trafficking 5.5 kg. No. 3 heroin found in the shed. The applicant faced two other counts which involved the drugs found in the Sunshine orange carton. The first of these alleged that on 19th April outside the shed at the rear of 28 Ping Yeung Village, he had in his possession 5,471.53 grammes of a mixture containing 338.37 grammes of salts of esters of morphine for the purpose of unlawful trafficking. The second alleged that at the same time and place and for the same purpose he had in his possession 348.97 grammes of a mixture containing 284.62 grammes of salts of esters of morphine.

4. After voir dire proceedings, Chan pleaded guilty in front of the jury to the first count. The trial against the applicant then proceeded on the joint count and the two other counts.

5. At the conclusion of the first trial,. the jury acquitted the applicant on the joint count but were unable to reach verdicts on the other two counts.

6. The applicant was, in consequence, tried again on those two counts in front of Gall J. and a jury. He was convicted on both and was sentenced to 18 years on each, with the sentences being ordered to be served concurrently. He now appeals against both convictions and sentences.

7. It was the Crown case that the applicant, having arrived at the shed carrying the carton, had pushed open an iron gate leading to it. The police said that he called out Chan's nickname and then, having proceeded towards the shed, was arrested immediately outside the door thereto. He was told to place the carton on the ground and, on being asked by police officers what it contained, said, "Take a look yourself." There was no issue that this carton contained the drugs the subject of the two charges.

8. It was the police testimony that, when asked about the contents of the carton, he had said that it was "white powder" and that, upon search, a key, which fitted the padlock to an iron gate through which it was necessary to pass to gain entry to the shed, was found in his trouser pocket. A number of trays found in the shed bore traces of heroin, and the applicant's fingerprints were found on the bottom of two of these. The police later took him to a garage in Sheung Shui, the keys of which were also in his possession, where a weighing balance was found on which there were also traces of heroin.

9. He gave evidence saying that he owned and lived at the garage. He said that he knew Chan, who was a chicken farmer, and had met him and his partner, Ah Cheong, on the afternoon prior to his arrest in Fanling when Ah Cheong had asked him to take some chicken feed to the shed at 5 a.m. on the following morning, explaining that he, Ah Cheong, would not be free to do so as he had to pick up his girlfriend. He said that by arrangement he met Ah Cheong outside the same restaurant at 5 a.m. on the next morning and that Ah Cheong put a carton in his car telling him that it was chicken feed. He said he looked at the contents and saw that it was a white granular substance and that he then conveyed it to the shed where he was arrested. He explained the discovery of his fingerprints on the trays in the shed and his possession of the key to the iron gate by saying that on 18th April after the meeting in the restaurant, Ah Cheong had taken him to the shed, so that he would know which one it was, and that he had entered it and handled the trays as he thought that they might be useful to hold screws. He said that he also saw a balance in the shed and that, Ah Cheong having given it to him as a gift, he took it back to his garage. As to the key, he said that Ah Cheong had handed it to him when he put the carton in his car. He denied knowing that the carton contained anything other than chicken feed and said that when the police stopped him he had told them that it was chicken feed.

10. During the course of argument Mr. Marash, who appeared for the applicant, submitted that the real substance of the appeal was that the evidence that drugs were found in the shed and that the applicant's fingerprints had been found on two trays which bore traces of drugs ("the disputed evidence" was wrongly before the jury. He frankly conceded that, if the disputed evidence had not been led, he would not be in a position to question the correctness of the two convictions.

11. The primary ground which he argued was that that evidence was inadmissible as it was not relevant other than to prove the guilt of the applicant on the count on which he had been acquitted and had, therefore, improperly called into question the acquittal on that count.

12. He went on to argue that, even if that evidence was admissible, the judge should, in his discretion, have excluded it, as it was more prejudicial than probative.

13. Although it was not a stated ground of appeal, Mr. Marash also argued that, even if that evidence were properly before the jury, the judge had not directed clearly and adequately thereon.

14. As it developed, Mr. Marash's argument on his primary ground was, on our understanding of it, that the prosecution case in the first trial, in so far as it related to the joint count of possession of the drugs in the shed, had proceeded upon the basis that the facts, which have been outlined above, were sufficient both to raise an inference of possession and to give rise to a statutory presumption thereof. The prosecution relied upon the existence of the fingerprints on the two trays to raise the inference of possession and upon the admitted possession of the key to the iron gate to raise the statutory presumption. Mr. Marash submitted that it was implicit in the verdict of "Not Guilty" on the joint count that the jury must have been satisfied both that the facts were insufficient to support any inference of possession and that the applicant had on the balance of probabilities rebutted the presumption by establishing that he was not in possession of those drugs. Knowledge being an essential element of possession, it was Mr. Marash's submission that further implicit in the verdict were findings not only that there was no sufficient evidence to establish such knowledge as would support the inference but also that the applicant in rebutting the presumption must have positively proved that he did not have knowledge. He argued an alternative primary ground in which he contended that, even if these matters were not implicit in the jury's verdict, it was enough for the purpose of his submission to establish the possibility that the jury might have so found.

15. He relied upon R. v. Humphreys [1977] AC 1 which was an appeal to the House of Lords from a decision of the Court of Appeal allowing an appeal against the conviction of a defendant charged with perjury who at an earlier trial had been acquitted on a charge of having driven a motor vehicle "on July 18th 1972" while disqualified. In the earlier trial he had denied being the driver of the vehicle on the day in question and said that he had not driven any motor vehicle during 1972. It was in- relation to this-latter statement that the perjury charge was laid. The decision of the House is stated in the headnote:

"Held, allowing the appeal, that the doctrine of issue estoppel had no place in English criminal law; that determination at a first trial of an issue in favour of the accused was no bar to the admission at a second trial of evidence given at the first trial directed to establishing perjury at the first trial even though that evidence, if accepted at the second trial, would lead to the inference that the accused was guilty of the offence of which he had been acquitted at the first trial; and that, accordingly, the trial judge had rightly admitted the evidence of the police officer and the respondent's conviction should be restored."

16. All five members of the House were satisfied that issue estoppel has no place in criminal law.

17. Lord Salmon and Lord Edmund-Davies were satisfied that if a prosecutor used a perjury charge as a second attempt to secure a conviction on the original charge the court had an inherent power to prevent an abuse of its process. Viscount Dilhorne had some doubt as to the existence of any such power but held, at p.26, that if it existed it "should only be exercised in the most exceptional circumstances". Lord Fraser expressed no opinion on this point.

18. Lord Hailsham alone expressed the opinion, at p.40, that "there is a doctrine applicable to criminal proceedings which is in some ways analogous to issue estoppel, and has sometimes been described by that name." He said:

"However, (3) the civil doctrine [of issue estoppel] is based on the necessity for finality between private litigants, whereas the doctrine in criminal proceedings is based on the prohibition of double jeopardy, that is, the maxim nemo debet bis vexari pro una et eadem causa. It follows (4) that whereas the civil doctrine is equally applicable to either of the two civil parties, the criminal doctrine is available to the accused but not to the Crown. (5) Whereas the civil doctrine applies to all cases where an individual issue can be isolated and identified as determined, the criminal doctrine is not so limited but is primarily concerned with verdicts, and applies to verdicts which are either in form or in substance inconsistent. (6) In general, the doctrine in criminal law precludes the Crown from adducing evidence or making suggestions which are inconsistent with a previous verdict of acquittal when its real effect is determined. The doctrine is one of substance rather than form. The court will inquire into realities and not mere technicalities. (7) Where a second charge is brought which is different both in substance and in form from an earlier charge, the mere fact that some of the evidence adduced in support of the second charge is inconsistent with innocence on the earlier charge does not preclude the Crown from adducing that evidence in asserting its truth when considering a verdict on the second charge."

19. Mr. Marash relies particularly upon (6) & (7) in the above citation. We accept that it is not permissible for the prosecution in order to obtain a conviction in case B to seek to show that the accused was guilty in case A, after he has been acquitted in case A (G (an infant) v. Coltart [1967] 1 Q.B. 432). However, we are not persuaded that, as the law stands, any wider reading of (6) in Lord Hailsham's speech is justified.

20. In our opinion, Mr. Marash's primary objection must fail. The short answer to it is that, on the facts of the present case, the adducing of evidence to prove knowledge did not necessarily go behind the verdict of not guilty of possession.

21. It was Mr. Marash's contention that, when the Crown in the second trial adduced evidence of the fingerprints of on trays which contained traces of dangerous "adducing evidence or making suggestions" which were inconsistent with the previous verdict of "Not Guilty" and was thus attempting to go behind the acquittal.

22. It would, unquestionably, have been an attempt to go behind the "Not Guilty" verdict on the joint count of possession of the drugs in the shed if the prosecution had sought at the second trial to establish that the applicant had been in possession of those drugs and was guilty of that offence.

23. This was, however, not what the prosecution was seeking to do. The disputed evidence was being led to establish knowledge, not possession. Mr. Marash argues that knowledge is an essential element of possession. This is certainly so, but does an acquittal on a count of possession necessarily involve either a rejection by the jury of the evidence from which knowledge might have been inferred or a finding by the jury that the applicant positively established that he was without knowledge? Mr. Marash submits that, in the present circumstances, it does.

24. We are far from satisfied that the acquittal must necessarily have involved either of those findings. When coming to this conclusion we particularly bear in mind the following matters: (i) Chan Koon-wing pleaded guilty in the presence of the jury, (ii) it was common ground that the applicant was not the owner of the shed, (iii) when apprehended, the applicant appeared to be doing no more than delivering the carton to the shed. We are satisfied that the jury may well have considered that, even though the applicant had knowledge of the drugs in the shed, he was not in possession thereof. This disposes of Mr. Marash's primary ground.

25. It was his alternative primary ground that it was enough for the purposes of his argument simply to demonstrate that the jury might have acted upon the basis of one or other of the two-matters set out above. He relied, inter alia, upon the words "the doctrine is one of substance rather than form. The court will inquire into realities and not mere technicalities". He contended that it was enough to make the matter one of substance if he could demonstrate that the jury might have returned their verdict of not guilty because they were satisfied that the facts were insufficient to support an inference of knowledge or established that he did not have knowledge. We cannot agree. The onus, we are satisfied, is on the applicant, to demonstrate on the balance of probabilities that, when the jury returned the verdict of not guilty of possession, they were satisfied that he had no knowledge of the existence of the drugs in the shed. We refer when so holding to R. v. Telford JJ., Ex parte Badhan (1991) 2 W.L.R. 866. This was an application to the Court of Appeal to stay a rape trial on the basis that due to the lapse of 15 or 16 years, it would be an abuse of the process of the court to allow it to proceed. The question of onus was dealt with in the following passage at p.876 from the judgment of the Court delivered by Mann L.J.:

"We do not think that a conclusion as to whether delay in making a complaint to the police is justifiable is determinant of the question of abuse of process where that question is raised by reason of an elapse of time. This is not a case where the length of elapsed time is due to some act or omission of the prosecuting authority which is 'unjustifiable.' In such a case, which is truly describable as one of 'delay,' when an accused can show on the balance of probability that he has been, or will be, prejudiced in the preparation or conduct of his defence then an abuse of process should be found: see Reg. v. Derby Crown Court, Ex parte Brooks, 80 Cr.App.R. 164, 169."

We are satisfied that the same onus must rest upon an accused who seeks to argue that an issue has already been determined in his favour at an earlier trial. The applicant, we are satisfied, failed both before the trial judge and before this court to demonstrate that the issue of knowledge had been so determined.

26. The judge was, therefore, right in refusing to exclude the disputed evidence on the ground that it sought to go behind the verdict of acquittal on the count involving the drugs in the shed.

27. It was Mr. Marash's second ground that if the judge was right to hold that the disputed evidence was admissible, he was wrong to refuse to exclude it upon the basis that its prejudicial effect outweighed its probative value. We are quite unpersuaded as to the correctness of this contention. The disputed evidence was, it is true, damaging to the defence, but it was relevant to matters in issue and was properly left to the jury.

28. Finally Mr. Marash argued that the judge had failed clearly and adequately to direct the jury as to the use to which the disputed evidence could be put.

29. In the course of his summing-up the judge clearly told the jury that the real issue for their decision was whether the applicant knowingly had possession of the drugs which were the subject of the two counts that he was then facing. He indicated to them the following facts upon which the prosecution relied:

(1)    the finding of a large quantity of dangerous drugs in the shed;

(2)    the admission by the applicant that he was carrying white powder (this, of course, would be conclusive of guilt if it was accepted that he had made it);

(3)    the finding on the person of the applicant of the key to the iron gate that led to the hut;

(4)     the finding in the storeroom of the applicant's fingerprints on two trays which bore traces of dangerous drugs;

(5)    the finding at the applicant's residence of weighing scales bearing traces of drugs.

He went on to tell the jury that one of the inferences that the prosecution was asking them to draw from the above facts was that the shed was a storeroom for drugs. He said that the prosecution case was that the fingerprints on the trays established an "intimate relationship" with a place where drugs were stored. He told the jury that the prosecution case was that these matters, and the other evidence, established that the applicant "knowingly possessed dangerous drugs set out in the counts for the purpose of unlawful trafficking in them".

30. It was implicit in what the judge told the jury that if they were satisfied that the applicant knew that the shed was a storeroom for dangerous drugs they would be entitled to use this as one of the matters to be taken into consideration when deciding whether they were satisfied that he had knowledge that what he was carrying was dangerous drugs.

31. Mr. Marash took particular exception to the words emphasized in the passages from the summing-up set out below:

    "You have heard about the plea of guilty by CHAN Koon-wing, you have heard of the presence of drugs which is admitted by the accused which were in the shed, you cannot and may not as a matter of law infer that the accused is guilty because of those facts. Nobody is guilty by association. It may be that unknown to you somebody you know is a drug trafficker, the fact that you know them does not make you guilty. The fact that the drugs were in the shed does not make the accused guilty. You must dismiss that from your mind. Those facts do no more than assist you in deciding what the shed was used for. It may be that you could infer, and this is a matter for you to decide, that the shed was used for the storage of drugs. But it does not in any way infer the guilt of the accused."

The judge later said:

    "This comes back then to the one real issue for you to decide and that is on either of the two approaches that you could make: Was the accused in possession of those drugs? Did he knowingly have possession, custody or control of them?"

32. The first approach to which the judge was referring relied upon the admissions made to the police. The second relied upon the presumptions arising by virtue of the fact that the applicant was in possession of the box which contained the drugs.

33. The judge elaborated on the first approach in the following terms:

    "Crown says that he was asked concerning the contents of the box. And on one version and there are contradictions that you must face, though, and consider what is true and what is not true. On one version he said: 'Well, look at it yourself', that was the 2nd Prosecution witness. The 1st Prosecution witness said that he answered 'white powder'. The box, in any event; was opened and there were found the drugs referred to in each count and which it is an.admitted fact were those drugs. On the body of the accused was found the key that fitted the iron gate. His fingerprints were found on two trays which, you will see from the photographs, were kept in the striped plastic bags - a whole stack of those trays. Fingerprints, you might recall, were on the under side of the trays. Those trays had traces of dangerous drugs on the them. He was taken from those premises to the garage where he works and there was found a set of weighing scales. Traces of drugs were found on those scales and his fingerprints I am sorry, I am confusing that with the trays - no suggestion that fingerprints were found there, the scales were found in his garage.

    From this, the Crown ask you to draw certain inferences. The Crown case is that here was a building where various items of equipment and you have no evidence as to what use they were to be put but various items such as trays and the scales were associated with that shed and the large quantity of drugs, not the drugs in this count but the drugs in that second store-room.

    Crown says they were found there and it's for you to infer that this was a shed where some sort of dealings with drugs were going on, albeit it a store-room or some other dealings with drugs.

    Crown says here is a man approaching that store-room in the very early hours of the morning, carrying with him almost 6 kilogrammes of drugs. He has, the Crown says, keys to the premises. An intimate relationship on the Crown case because his fingerprints were on trays inside plastic bags inside one of the rooms; he has an association with a set of scales with drugs on them in his own garage. And from all this, added to the evidence that I have already referred to of his admission that the Crown says that it was white powder or the operation of the presumptions, the Crown ask you to accept that beyond a reasonable doubt he knowingly possessed dangerous drugs set out in the counts for the purpose of unlawful trafficking in them."

34. Mr. Marash suggested that in the first passage the jury were instructed to dismiss from their minds the evidence as to the drugs in the shed and, in the final passage, to give consideration to the possibility that the shed was a storeroom for drugs and that the applicant had an "intimate relationship" with it. He submitted that they must have been wholly confused when they came to consider this evidence. We cannot agree. The first passage was dealing with whether an inference of guilt could be drawn from the applicant's association with Chan, who had admitted possession of the drugs in the shed. When he used the phrases "dismiss that from your mind" and "does not in anyway infer the guilt of the accused", we are satisfied, that the jury must have understood the judge to be giving a direction that they could not infer guilt from the applicant's association with Chan. Indeed, in the first passage we quoted, the judge said: "Those facts do no more than assist you in deciding what the shed was used for".

35. His later direction, in which he told the jury that they could infer that the shed was used as a storeroom and could be satisfied that the applicant had an "intimate relationship" therewith, properly and clearly indicated the limited use to which the evidence could be put.

36. There could, it is true, have been a happier choice of words than "intimate relationship" but we are satisfied that the jury would not have been in any way misled by the use of that phrase.

37. The presence of the drugs in the shed and the fingerprints on the two trays was, we are satisfied, evidence which the jury were entitled to take into account as part of the matrix of fact upon which the prosecution was relying.

38. We are satisfied that what the jury must have understood from the passages set out above was that the applicant's association with Chan, who had pleaded guilty to possession of the drugs in the shed, must not be used as a fact from which guilt might be inferred on the charges being tried, and that the evidence of drugs in the shed and the fingerprint evidence should be used only to assist them in deciding whether the applicant knew the purpose for which the shed was being used, and that this was, in turn, a matter upon which they could rely when deciding whether it had been proved that the applicant knew that there were drugs in the carton.

39. It is Mr. Marash's further complaint that nowhere in the summing-up was there an express direction by the judge that the jury must approach the matter upon the basis that the applicant, having been acquitted of a charge of possession of the dangerous drugs in the shed, must be taken not to have been in possession of those drugs. In this regard he says that the judge told counsel during the course of the trial that he would tell the jury

"in the sternest possible manner that none of this evidence (of drugs in the shed) indicates that the accused is guilty, nor should they draw any adverse inference from it, other than in respect of whatever happens as far as innocent explanation or as far as any denial that he had an association with the premises is concerned. I am going to tell them that they cannot assume guilt because of the fingerprint or because of the drugs being in the premises."

He says that in the outcome the judge failed to give either direction. It is correct that the judge did not refer to the verdict of not guilty in the first trial, however, that matter was clearly before the jury as it was an agreed fact and was highlighted to them when repeated by defence counsel in his speech on the last day of the trial. As to the, fingerprint evidence the judge did, as we have indicated above, give a proper direction as to the use to which it could be put.

40. For the foregoing reasons we are satisfied that the application for leave to appeal against conviction must fail.

Re Sentence:

41. The applicant was sentenced on 9th July 1990 to imprisonment for 18 years on the charge of possession of 5471.53 grammes of a mixture containing 338. 37 grammes of salts of esters of morphine (No. 3 heroin) for the purpose of unlawful trafficking and was sentenced to 18 years concurrent on the charge of possession of 348.97 grammes of a mixture containing 284.62 grammes of salts of esters of morphine (No. 4 heroin) for the same purposes. The offences were committed on 19th April 1989.

42. Before sentencing, the trial judge observed:

"I think you would agree I am constrained given the date of this offence by Chan Chi-ming, Cheng Yeung, with the tariffs in those cases which must put it in the exceptionally high range but limited by those cases, it said that a maximum of 20 years would be imposed in cases such as this."

The trial judge was clearly indicating that he was satisfied that the applicable tariffs were those set out in R. v.Chan Chi-ming [1979] H.K.L.R. 491 and is R. v. Cheng Yeung [1989] 2 H.K.L.R. 258.

43. It is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence. (Cons V.-P. in R. v. Chan Ka-wai Civil Appeal No.503 of 1988 (unreported)). These offences were committed on 19th April 1989. Judgment in R. v. Cheng Yeung was delivered on 14th April 1989, some 5 days before the commission of these offences. The trial judge was, therefore, correct in adopting the tariffs to which he referred.

When sentencing the judge said:

    "You have been found guilty after trial of possession of a considerable quantity of dangerous drugs. The law as it stood, when you committed the offence, directs me to look to the quantity of drugs as to the mixture rather than the net quantity of salts of esters of morphine that you had in your possession at the time.

    I am further directed by the law to convert the No. 4 heroin into what a mixture of No. 3 heroin of current market amount would have been at that time. That, in this case, makes in (sic) the total of the two counts a total of eleven kilos of heroin.

    Whilst each amount is on a lower part of the scale, I must look at the totality of the sentence that must be passed upon you. Nothing can be said in your favour in this matter other than I accept that there is no evidence that you are other than a carrier of the drugs from one place to another, there being other than the fingerprints, no indication that you participated any further than that.

    Bearing in mind the totality which is required by the amount of drugs in your possession, sentence you to 18 years' imprisonment, in respect of each count, to be concurrent."

44. The court in Cheng Yeung's case was satisfied that the tariff suggested in Chan Chi-ming's case for mixtures of "about 1 kilo" should remain unaltered. This tariff was expressed in the following terms: "very substantial (about 1,000 grammes) the sentence should range from 8 to 12 years". The court went on, however, to deal with the problem of sentencing when No. 4 heroin was involved and to stipulate a new tariff for offences involving amounts between 1 kg. and 20 kg. It indicated that the sentences to be imposed for amounts in excess of 1 kg. should follow a gradual curve beginning at 12 years up to a cut-off point for amounts in excess of 20 kg. for which quantities offenders "will face a sentence in the region of 20 years".

45. The trial judge applied the Cheng Yeung tariff to the amounts involved in each of the offences charged. He had evidence that the 348.97 grammes of a mixture containing 284.62 grammes of salts of esters of morphine (No. 4 heroin) would convert into 5,580 grammes of No. 3 heroin. The other amount was 5,471.53 grammes of No. 3 heroin. The judge observed that "each amount is on a lower part of the (Cheng Yeung) scale ....". The amount in each offence would, if each properly fell to be separately considered, have, applying the Cheng Yeung scale, attracted a sentence of about 14 years - giving a consecutive total of 28 years. The judge did not set out the total at which he arrived but, clearly, it must have been in this vicinity as, after scaling down, he arrived at a figure of 18 years.

46. It is the submission of Mr. Marash that this sentence was manifestly excessive. He submits that when the level of sentences in similar cases is considered it will be seen that it was substantially higher than it should have been. He cited the following cases in support of this contention:

1. R. v. Tsui Lai-ying & others   [1987] H.K.L.R. 857
(Date of offences - pre 1984)

2.R. v. Chan Ho-kuen & another [1988] 2 H.K.L.R. 334
(Date of offence - 17/7/84)

3. R. v. Chan Wai-shing Criminal Appeal No. 557 of 1987
(unreported) (Date of  offence - 19/7/84)

4. R. v. Chan Chi-yin & another Application for Review No. 21 of 1989
(unreported) (Date of offence - 10/4/87)

5 . R. v. Ng Kam-hing & another Criminal Appeal No. 274 of 1988 (unreported)
(Date of offence - 24/12/87)

6. R. v. Cheng Chi-ling & another Criminal Appeal No. 105 of 1990 (unreported)
(Date of offence - 19/1/89)

In each of these cases, very much greater quantities of dangerous drugs were involved and in only one was the sentence imposed in excess of 18 years. Each of these offences was, however, committed before the 14th April 1989. While it may have been Mr. Marash's intention, when citing these cases, to use them as nothing more than a general indication of sentencing levels in the worst type of case, we cannot help but express surprise that we were asked to consider them as, in each, the offence was committed prior to the date of the applicable sentencing guidelines. In the outcome, we found them of little assistance. We were not referred to any case to which the Cheng Yeung guidelines were applied.

47. The importance of applying current guidelines cannot be too heavily underlined. They directly state the proper approach to sentencing laid down by the Court of Appeal. This approach has, in the case of drug trafficking offences, with the passing of years, increasingly hardened towards those who involve themselves therein. No offence more viciously tears at the fabric of society than that nefarious trade. It brings tragedy and ruin to individuals while supporting an international network of criminal conspiracy and corruption.

48. We are satisfied, as we have indicated, that the judge was right to apply the Cheng Yeung tariff. He was, however, wrong in our view to impose consecutive sentences. All of the drugs were in a carton being carried by the applicant at the time of apprehension. We are satisfied that the total sentence imposed should have been calculated by reference to the total amount in the carton, converted, as appropriate, into No. 3 heroin. The converted amount, 11.51 kilos, would, we are satisfied, have attracted a sentence of 16 years after trial.

49. Mr. Marash asks us to bear in mind that there was no evidence to suggest that the applicant was anything other than a courier. Indeed the judge appears to have considered that to have been a factor in his favour. Cheng Yeung's case made clear, at p.263, that the tariff was "a possession tariff" which applied to "a man providing storage space for goods or acting as a courier". When applying that tariff there is, therefore, no question of scaling down because the offender is not shown to be more than a courier.

50. In R. v. Cheung Chi-ling and Tsang Yui-hung (supra) Macdougall J.A. stated:

"On the evidence before him we do not think the judge can be faulted for imposing the sentences he did. In this court, however, Mr. Saw for the Crown conceded that each applicant played no greater role than that of courier. In the light of that concession we have come to the conclusion that had the judge received proper assistance from counsel he would have felt obliged to impose sentences consistent with those that were being passed on couriers found in possession of or trafficking in similar quantities of drugs at the time the present offences were committed. It was for this reason that we reduced the sentence of each applicant to one of 16 years imprisonment. We emphasise, however, that, whatever their role may have been, those found to have committed similar offences subsequent to the decision in R. v. Lau Tak-ming [1990] 2 H.K.L.R. 370 should not expect to be accorded the same treatment as the applicants in this case."

That case, as we have already noted, did not involve an offence to which the tariff in Cheng Yeung's case applied. We do, however, take the opportunity to indicate that the final words of the passage set out above should not be read as an indication that in the case of offences committed post Cheng Yeung but pre Lau Tak-ming couriers are exempted from the full rigor of the tariff in Cheng Yeung's case.

51. The applications will be allowed. The hearing of the applications will be treated as the hearing of the appeals and the sentence of 18 years will, in each case, be reduced to one of 16 years. The sentences are ordered to be concurrent.