THE QUEEN v. LAW YIU SANG

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Law Yiu Sang, was convicted after trial before Barnes, J. and a jury of the offence of manufacturing dangerous drugs. He was also convicted, upon his own plea, on the first count in the indictment, possession of dangerous drugs for the purpose of unlawful trafficking, the particulars being that on 19th January 1989 at Flat 8 on the 1st floor of Fung Yee Building, 3 Wu Kwong Street, Hung Hom, he had in his possession 18,977.88 grammes of a mixture containing 3955.14 grammes of salts of esters of morphine.

3. He received a sentence of 16 years imprisonment on the first count and 24 years' imprisonment on the second concurrent, and concurrently with a sentence he was then serving. He now seeks leave to appeal against his conviction on the second count and, if necessary, his sentence on both the first and the second counts.

4. It was not disputed that in March 1988 the applicant had entered into a tenancy agreement with a Madam Ho for the premises. She was told by him that he intended to live there with his wife and family. Having paid the deposit in cash, subsequent rent payments were deposited to the credit of Madam Ho's bank account by the applicant.

5. On 18th January 1989 a police party raided the dormitory of a restaurant in Temple Street. There they found the applicant actually smoking heroin. At the time of his arrest three keys were found. The applicant admits that they were his keys and that they were found at the time of arrest but there was a dispute as to whether they were found on his person or in a drawer in the dormitory. The tenancy agreement was found at the same time.

6. After his arrest he was taken first to a police station. It was the evidence of the police officers concerned that a visit was paid then to the flat and that the keys were used to gain entrance. Manufacturing was going on and the drugs, which were in the last process of conversion from No. 4 to No. 3, were being dried with fans. The applicant was collected at the police station and a return visit was made to Fung Yee Building again using the keys to gain entry and in the applicant's presence. The manufactured drugs were still in place.

7. There was a dispute between the applicant and the prosecution as to the use to which these three keys could be put. He stated in evidence that one of them was the key to the iron grill of the premises where the flat was, another was for the padlock on the iron grill of the flat itself and the third was for the wooden door of the flat. He says there was no key to the actual lock on the iron grill to the flat.

8. The police evidence was to the effect that these three keys opened the doors of the premises and the flat and permitted them to enter on both occasions. In the flat, as well as the drugs being manufactured, other drugs and all the equipment and the chemicals necessary for the process of conversion manufacture were found.

9. The applicant made statements to the police after arrest. The preamble to those statements related to possession of drugs and made no reference to manufacturing. They were contested in the sense that it was suggested to the jury that their contents should not be believed. It was left, properly, to the jury to form their own views on that issue they having heard the evidence on it which included that of the applicant.

10. The matters of significance emerging from the statements, and on which reliance was placed, were first: a preliminary admission that "this quantity of dangerous drugs is mine", and this with the manufactured drugs in full sight; second, the applicant had indicated to the police that he had lived at the address for about six months; third, the applicant had indicated that there were "6 to 7 pounds of Sze Chai in a paper box next to the refrigerator and 1 brown paper box containing 17 pounds of Sam Chai under a bed". He explained, when later asked, that "Sze Chai" meant "No.4 white powder" and "Sam Chai" meant "No.3 white powder". We would emphasise that these were quantities of drugs additional to that being dried on the floor.

11. The trial judge directed the jury that the crucial question for them was this:

 

"...: has it been proved beyond a reasonable doubt that the defendant was either the actual manufacturer, or a person who was in agreement with the manufacturer's plan and rented the premises so that the manufacturer's plan could be carried out because he wanted it to be carried out?"

12. It was the applicant's case throughout that he was party to an agreement to store drugs in the flat, which he had rented for that purpose, but that he was not party to any agreement in respect of the manufacture of drugs on those premises. He had come to the storage arrangement at the behest of one Wong Ming to whom he owed money and who put up the funds for the rent.

13. The several circumstances of the applicant were brought to the attention of the jury. Mr. Raffell, who appeared for him in the court below, submitted, and the trial judge repeated this to the jury, that the applicant could not have been the actual manufacturer for the cost of the quantity No.4 heroin, about $400,000, would have been beyond the financial means of the applicant, a restaurant waiter.

14. The issue was:  whether the applicant had rented the premises with the object of knowingly assisting the manufacturer or manufacturers.

15. The jury were directed that if the only reasonable inference from all the evidence before them was that he rented it for that purpose then they would be entitled to find him guilty, if they did not then their verdict would be that of not guilty.

16. It was the submission of Mr Haynes, who appears with Mr. Raffell for the applicant before us, that there was no evidence before the court from which an inference of willing participation in or even guilty knowledge of manufacture could properly be drawn. He relies heavily on the fact that while possession of keys has relevance to a count of possession of dangerous drugs for the purpose of unlawful trafficking there must be some additional evidence of physical proximity to or presence in the place of manufacture before a count of manufacturing can be brought home to person who is a tenant and is legitimately in possession of keys.

17. He further submits that the trial judge failed to give a necessary and vital direction as to the limited circumstances in which lies can, as he put, it, in his ground 2 "be some evidence of guilt of the offence charged". The summing up, he says, contained adverse comment on the applicant's credit and this made such a direction doubly important.

18. His ground 3 contends that the evidence led of the applicant's being found, on arrest, smoking heroin and the applicant's evidence that he was a party to the agreement to store drugs, should have led the trial judge to direct the jury that they should not hold these matters as prejudicial to him. No such direction was given.

19. Mr. Haynes' final ground was that the combination of grounds 2 and 3, when set in the context of the judge's comments that the police had ho apparent motive to lie about where the keys were found, whereas the applicant did, had the effect that the applicant did not receive a fair summing up.

20. Dealing first with the allegation of non-direction as to prejudice and non-direction as to lies.

21. The whole of the applicant's defence was predicated  on his being a drug addict and a storekeeper and his knowing nothing about the manufacture of the drugs. The jury was aware that he had pleaded guilty to the possession count. In those circumstances there could have been no requirement for the trial judge to direct the jury not to be prejudiced by the very defence which was raised and which, had they accepted it, could have led to the acquittal of the applicant. To attempt to give any such direction would have caused confusion and have been harmful to the defence.

22. On the lies: again if the jury were to accept the applicant's evidence at its face value then his storekeeping activities story would not have been a lie. We accept that there were differences between the police evidence and that of the applicant as to where the keys were found. This was a matter of some moment. The significance was, and this was drawn to the attention of the jury, that if the keys were found upon the applicant's person then it could move him closer to the inference that he knew what was going on in the flat. If they were found in the drawer, as the applicant said they were, the inference was weakened.

23. It was never part of the Crown's case, as we understand it, that the jury should consider untruth in the cautioned statement or in the applicant's evidence as supportive of other evidence tending to prove guilt. The issues at trial were of belief or non-belief in the evidence that the applicant had advanced to then in the course of his defence. This involved a consideration of the inferences to be drawn from the generality of the evidence.

24. It is true that in the course of cross-examination by counsel then appearing for the Crown the applicant was directly accused of lying, an accusation which he denied. The suggestion was put that he, like anybody else, would seek to avoid the consequences of a serious charge.  He denied that he was prepared to tell a lie for that purpose but accepted that he had said in evidence that he had originally thought of telling the police he knew nothing about any of the drugs. That would have been, as he accepted, a lie. It is correct that there were comments made by the trial judge which could be considered adverse. But none of them was improper, all were balanced and related to the evidence and all were left entirely for the consideration of the jury.

25. The difficulty facing the trial judge in giving a direction as to lies was that it was likely to have undermined the defence. Here, we think it would have been a counsel of perfection to require the judge to warn the jury in the manner that Mr. Haynes has suggested.

26. We accept that the finding of keys on the tenant of a premises where manufacturing is going, but who was not present at that time might well, without anything else, be insufficient to attach him to that manufacturing. We do not accept, however, that the possession of the keys was the only evidence here. There was the additional evidence that the applicant had told the landlady in March 1988 that he was to live in the flat; there was evidence in the cautioned statement, although this does not appear to have been emphasised in the course of the trial, that he had said that he lived there; and there was evidence that, when he was brought to the flat, he admitted the drugs were his and he was able to show the police where the extra supplies of No.4 heroin and the made up supplies of No. 3 were secreted. The jury was carefully and clearly directed on all these matters.

27. This was not a case where the presumption under s.45 of the Dangerous Drugs Ordinance arose and, consequentially, needed rebuttal. As we have indicated, evidence additional to the finding of the keys to the flat on the applicant was required before the jury could properly draw the inference that the applicant was knowingly engaged in manufacturing.

28. In our judgment the attachment of the applicant to the premises, the indication he gave to the police of ownership of the drugs and where other drugs were secreted, the evidence of his carrying of the keys to the premises in his pocket entitled the jury to come to the irresistible inference that he had rented the premises, knowingly, to permit them to be used for the purpose of manufacturing.

29. The application for leave to appeal is refused.

Sentence

30. We have now heard that which Mr. Raffell submits to us in relation to the application for leave to appeal against sentence. Because of the issues he raised we thought it proper that we should give them the fullest consideration and to that end we reserved our decision.

31. The perfected grounds against sentence are two in number, and are deceptively simple; first, that 16 years' imprisonment on a plea of guilty for possession of 18,977.88 grammes of a mixture containing 3955.14 grammes of salts of esters of morphine for the purposes of unlawful trafficking was manifestly excessive and unjust; second, that 24 years' imprisonment for manufacturing a dangerous drug, after trial, was manifestly excessive and unjust. The sentences were concurrent giving a totality of 24 years which was concurrent with a sentence he was then serving. The sentence he was then serving was one of 3 years for the offence of possession of dangerous drugs for the purpose of unlawful trafficking imposed on 25th May 1989. It is to be noted that, on lst December 1983, he was convicted of a precisely similar offence.

32. Although Mr. Raffell does not agree, it is clear that the effect of the plea to count 1 was an attempt to avoid, if that were possible, a conviction on the manufacturing count. This is not a criticism because he was the indicator, at the premises where the manufacturing was taking place, of the places where drugs were to be found in circumstances where the equipment for manufacturing was in plain sight. He was entitled because of his plea to obtain a discount from the starting point sentence which the judge here took to be in the region of 20 years.

33. Mr. Raffell does not seriously dispute the appropriateness of that individual sentence but contends that the overall sentence is excessive. His main contention is that whatever the role of the applicant may have been in the manufacturing, it was not a preeminent one or indeed one of any major significance. He suggests that sentences in the range of 24 years should be reserved for the bigger fish rather than the minnow that was the applicant.

34. As we have indicated, Mr. Raffell suggests that the plea to count l was not one to erect a defence and it, in fact, made it more difficult for the prisoner to defend himself on count 2.

35. Mr. Saw has drawn our attention to what he suggests is the inference of the applicant's full knowledge of the manufacturing. This emerges from the evidence relating to his having the keys of the flat and his knowledge of its contents. All the paraphernalia of manufacturing was present, and openly so, in that flat and the process of manufacturing was in its final stage. He accepts that, while there is nothing to show that the applicant was the chemist, he did play a full manufacturing role and as such made himself liable to punishment condign.

36. Mr. Raffell counters that it is impossible to know the mind of the jury and upon which particular factor they may have seized in order to convict the applicant of manufacturing. Of Mr. Saw's contention that the applicant must have been, at the very least, a trusted colleague of those who were physically doing the work, he submits that this can only be assumption, not clearly made out and not one upon which sentence should be based. It would not have been wrong for the judge here to have taken the applicant as a form of "lowest common denominator" in the offence of manufacturing. There was nothing to show that he was the stirrer of the pot.

37. We are not persuaded that the trial judge was wrong in the view he clearly took of the role played by the applicant. The drugs in the flat were convertible into 70 kilograms of No.3 heroin worth more than $2 million. This was not a small operation. If a man is to knowingly involve himself, as did the applicant, in crimes of so grave a nature as the manufacturing and possession of this amount of dangerous drugs then, even though he may not have been the prime mover, the very gravity of those crimes must be emphasised by a sentence which will not only speak to the deterrence of the man himself but also give full warning to others of like mind what the consequences of their actions will be. While 24 years is a very substantial sentence we are not persuaded that it is such as to warrant our interference. We would give leave to appeal against sentence but we would dismiss the appeal.