R v. CHEUNG WAI KWONG AND ANOTHER

1996, No.7
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan J : (delivering the judgment of the Court)

1. The applicants were convicted after trial before Seagroatt J. and a jury of manufacturing dangerous drugs. Each of them was sentenced to 21 years' imprisonment. They now apply for leave to appeal against both conviction and sentence. At the end of the submissions, we refused leave saying that we would reduce our reasons into writing. This we now do.

2. On 9th October 1993, at about noon, a team of police officers led by Inspector Ho (who had since left the Police Force) gathered outside the premises at Room 1024, Heng Sing House, Heng On Estate. The inspector peeped inside the premises through a slot in the mail box at the door. He saw lying on the floor various items associated with the manufacture of dangerous drugs. These included a hydraulic jack, an iron mould, some plastic bags and towels. He heard no noise and thought that no one was inside. The inspector and his team kept observation outside the premises waiting for anyone going into the premises. They waited for two hours but nothing happened.

3. The inspector then went to the door again and peeped through the slot. This time he found that the items he had seen had all disappeared. He also heard some noises inside. Upon his instructions, the officers then broke open the door by force. This took 10 to 12 minutes because, as they found out subsequently after entry, the door was jammed by a wooden bar. Upon entry, they saw the two applicants rushing out of a room, there being no other entrance or exit in the premises. There was a struggle and the applicants were then subdued. The officers found inside the toilet of the premises a large amount of paraphernalia associated with the manufacture of dangerous drugs. Among them were the items which the inspector had seen earlier. There was also a shower hose inserted into the toilet bowl which was full of water. The hose was still running. The place was littered with traces of heroin which were also found on the paraphernalia.

4. It is clear beyond doubt that the place had been used for the manufacture of dangerous drugs and very shortly before the police entered the premises, whoever were inside the flat must have been trying to destroy the evidence by washing the paraphernalia in the toilet and flushing whatever quantity of drugs there was into the toilet bowl.

5. Forensic evidence adduced before the court showed that there were traces of heroin not only on the clothings of both applicants, but also on various parts of their bodies literally from hair to toenails.

6. The applicants did not give evidence at the trial. They called a lady who was a friend of one of the occupiers of the premises. She testified to the effect that she had told the applicants to go to the premises to remove an unwanted air-conditioner.

7. The trial judge had, in our view, very fairly and meticulously summed up the prosecution's case and the defence case to the jury who found both applicants guilty of the charge.

8. The only ground of appeal relied on by both applicants was that they had been wrongly advised by trial counsel not to give evidence and hence did not have a fair trial.

9. Both applicants and their former solicitor had filed affirmations which we admitted for the purpose of these applications. It was said that they had given written briefs to trial counsel on the allegations made by the police and as to the explanations for their presence inside the premises. It was decided that only the 1st applicant would give evidence. During the course of the trial, they were advised that if they went to the witness box, they would be cross-examined on their previous convictions, the judge having ruled in the jury's absence that the prosecution were entitled to cross-examine them. They had signed written instructions to the effect that they appreciated that risk. At the end of the prosecution case, it was said that counsel advised them that it would be "disastrous" for them to give evidence. Relying on such advice, they decided not to testify but called a witness, the lady to whom we have referred.

10. There was no response coming from trial counsel on these affirmations. It seems that he had ceased practice and left Hong Kong. Efforts on the applicants' behalf to trace him have failed.

11. Both counsel for the applicants submitted that the applicants did not have a fair trial because at the crucial time, trial counsel had given some disproportionately strong advice which had effectively deprived the applicants of their choice of whether to give evidence or not. It was submitted that counsel should have advised them on the pros and cons of giving evidence and that in the absence of their evidence, a conviction would be inevitable in the light of the overwhelming evidence.

12. Counsel for both applicants referred us to a number of authorities including R. v. Clinton [1993]1 WLR 1181; Sankar v. State of Trinidad and Tobago [1995]1 WLR 194 and R. v. Ho Ling and Another [1996]1 HKC 733. We are grateful to counsel for identifying the principles set out in these authorities. We accept that these are the correct principles to be applied. However, we note that it is only in wholly exceptional circumstances that the conduct of counsel can form the basis for an appeal. Each case must depend on its own facts.

13. We have carefully considered the written and oral submissions presented to us. In our view, this is a typical case where the applicants have no other ground of appeal except to try to put the blame on trial counsel. This is not a case where due to the flagrant incompetence or totally insupportable advice of counsel, the defence had not been put before the jury giving rise to a doubt whether the applicants had a fair trial or not.

14. The applicants' case that they went to the premises to remove an air-conditioner was placed before the jury through the cross-examination of prosecution witnesses and the evidence of Madam Chow called on behalf of the applicants. The learned judge had very fairly dealt with the defence in his summing-up, weak as the defence was in the light of the almost indisputable evidence from the prosecution. The applicants had criminal records and as the judge correctly ruled, would be subject to cross-examination on their characters. Defence counsel would know that the judge would direct the jury that no adverse inference could be drawn against a defendant who exercises his undoubted right to remain silent. The judge did, as a result, direct the jury to that effect. Further, counsel would undoubtedly and rightly have been gravely concerned with the effect on the jury's mind of the previous convictions coming out. In our view, it was a rational decision upon counsel's conscientious advice not to give evidence but call a witness instead. There is nothing to show that such advice was not given in good faith after proper consideration of all the circumstances of the case. In fact, it seems that counsel had taken extra time to take instructions and to consider the matter. We do not think that "all promptings of reason and good sense" would have pointed to a contrary decision. We are quite satisfied that the applicants did have a fair trial and were rightly convicted. It cannot be said that their convictions are in any way unsafe or unsatisfactory.

15. For these reasons, the applications for leave to appeal against conviction are refused.

16. Both applicants complained that the sentences of 21 years each were manifestly excessive and wrong in principle. It was submitted that the applicants faced only one count of manufacturing dangerous drugs on a particular day. There was no evidence of any measurable quantity of dangerous drugs found on the premises or the period in excess of two hours the applicants had been there. Counsel argued that it had not been proved how much of the dangerous drugs had been manufactured by them during the period they were inside the flat. There was also no evidence showing that the applicants were involved in all of the paraphernalia or only some of them. The Crown had also failed to show the capacity of the manufacturing operation. It was submitted that the trial judge should have indicated the basis on which he passed those sentences or if there was none, he should have held a Newton enquiry.

17. The trial judge in sentencing the two applicants said at p.38 :

" You were both found in those premises at the same time with overwhelming evidence of manufacture and your involvement in it. I know nothing of how you came to be there. I know nothing of who else may or may not have been involved with you. Traffickers need manufacturers. Without manufacturers there would be considerable restriction upon on the dangerous drug trade.

So you are at the most serious end of this particular crime and I have to treat you accordingly, even though you have no past record for involvement with dangerous drugs. There is very little material before me to enable me to take a more lenient course. You are both mature men in your forties and in your thirties and both of you, in any event, have been involved in serious crime, though of different nature. So you know the risks involved and you must also know the risks involved if you are caught for manufacturing heroin.

You will both go to prison for 21 years."

18. For trafficking and possession of dangerous drugs, the Court of Appeal has set down guidelines which are commensurate with the quantities of the drugs seized by the police in connection with the offence. In many cases of manufacturing dangerous drugs, large quantities of drugs were also found at the same place where the manufacture had been going on. The accused would usually have been charged with both trafficking as well as manufacturing of dangerous drugs. The court would have little difficulty in passing the appropriate sentence for both offences.

19. Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence. Roberts C.J. in R. v. Wong Chun-ping [1984] HKLR 247 at 257 said :

" The quantity of drugs found on the premises where manufacturing is taking place, or has taken place is of some value in indicating the scale of the manufacturing operation. And we suggest that the person convicted of manufacturing should normally receive a longer sentence than he would have done if convicted of unlawful possession, for the purpose of trafficking, of the amount of D.D. found on the premises.

However the serious aspect of manufacturing is that the processes of distribution and trafficking in D.D. depends upon a refining process being undertaken between the grower and the consumer.

It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place.

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than 10 years' imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of D.D."

20. It is clear that for the offence of manufacturing of dangerous drugs, the quantity of drugs found is of course relevant but this is not the only factor to be taken into consideration. In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.

21. In the present case, there is no evidence of any substantial quantity of dangerous drugs in the premises as a result of the flushing and cleaning operations before the police could gain entry to the premises. It is however clear beyond doubt that judging from the large amount of paraphernalia found inside the premises, it was a significant manufacturing station with a large scale of operation. It would be naive to assume that people involved in this operation would take the trouble of making only small quantities from time to time. These two applicants had been in the premises for at least a couple of hours and were no doubt trying to destroy as much evidence as they could while the police were breaking into the premises. There was no need to conduct any further enquiry. The conclusion is irresistible.

22. When the Court of Appeal in Wong Chun-ping suggested that a minimum of 10 years' imprisonment on a conviction for manufacturing dangerous drugs, the guidelines for trafficking and possession for unlawful trafficking in dangerous drugs were those set down in the case ofChan Chi Ming v. R. [1979] HKLR 491. Those were guidelines based on the quantity of mixture as opposed to the quantity of narcotics. According to those guidelines, a quantity of mixture between 150 to 1000 grammes would attract a sentence ranging from five to eight years imprisonment. Since that decision, the courts have become much tougher with drug offenders and the basis has also changed. In the case ofR. v. Lau Tak Ming [1990] HKLR 370, a quantity of over 600 grammes of narcotics (which could well be 1000 grammes of mixture) would attract a sentence of 20 years or more. The minimum sentence of 10 years in Wong Chun Ping (decided in 1984 when the old guidelines were adopted) which counsel did not seek to challenge would easily have been over 20 years now.

23. We take the view that the sentence of 21 years imposed by the learned judge is neither wrong in principle nor manifestly excessive. It is appropriate for the offence in the circumstances of this case. We have no hesitation in refusing the applications for leave to appeal against sentence.