R. v. NG WING KWAN

IN THE COURT OF APPEAL

1994, No. 313
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. After trial before Deputy Judge Jones sitting in the High Court with a jury the applicant was convicted of manufacturing a dangerous drug namely 1,403.10 grammes of a mixture containing 1,244.34 grammes of salts of esters of morphine. He now applies for leave to appeal against conviction and for an extension of time within which to apply for leave to appeal against the sentence of 21 years' imprisonment that was passed on him.

2. The evidence against the applicant was that he was the person who had made the arrangements for the lease of a flat in which were found the quantity of heroin to which we have referred and paraphernalia and chemicals used in the manufacture of heroin. Finger-nail clippings taken from the applicant were found to be contaminated with heroin.

3. To our amazement, the applicant was granted bail pending trial following his arrest on 15 December 1992. It is a matter of grave concern that all too frequently bail has unjustifiably been granted in serious dangerous drugs cases with the inevitable result that the defendant has absconded. In this case, as in so many other cases in which trenchant comment has been made as to the grant of bail, the applicant absconded. He failed to report to a police station on 19 January 1993 as required under the condition of his bail. Fortunately, he was eventually apprehended on 3 April 1993. A co-defendant, Kwan Wing-hon, who, equally unjustifiably was granted bail, also absconded and has yet to be apprehended.

4. In his defence, the applicant admitted that he had made the arrangement for the lease of the premises in which the drugs and manufacturing paraphernalia were found, but asserted that he had done so on behalf of his old friend, Kwan Wing-hon. The applicant denied all knowledge of the manufacturing of a dangerous drug in the flat. Plainly, by their verdict, the jury disbelieved him.

5. The major complaints that he now raises in his grounds of appeal are, first, that he did not see any drugs in the flat and cannot be sure that the police actually found any there; secondly, that although traces of drugs were found on his finger-nail clippings, none were found on the nail clippers themselves; thirdly, that his fingerprints were not found on every exhibit seized at the premises; fourthly, that there was a conflict in the evidence relating to his having handled keys to the flat. And, today, he asserts that his counsel made certain formal admissions and did not notify him that he had done so. In particular, he complains that one of those admissions was that he knew how to manufacture a dangerous drug. However, an examination of the record reveals that no such admission was in fact made. Indeed, the admissions that were made were purely of a formal nature.

6. Lastly, the applicant complains that his lawyer was unfair to him in that he disclosed to the jury the criminal record of Kwan Wing-hon. Since the applicant's defence was that Kwan was the person who was responsible for the manufacturing of the drug, it is plain that counsel's object was to indicate to the jury that it was Kwan, not the applicant who was the guilty party.

7. There is no merit in any of the grounds raised by the applicant. The judge correctly directed the jury on the law and the evidence. As to the evidence regarding the keys, he told the jury that, because of the conflict in the testimony given by two police officers, they may consider that it was unsafe to rely on that piece of evidence. The application for leave to appeal against conviction is refused.

8. No satisfactory explanation has been given for not lodging a timeous application for leave to appeal against sentence. That is sufficient ground for refusing the application for extension of time. However, we think that we should indicate that the deputy judge applied the guidelines laid down in R. v. Lau Tak-ming [1990]2 HKLR 370 to the present case by relating them to the quantity of heroin that had been manufactured by the applicant. Since this court has always taken a sterner view of manufacturing than of trafficking in a comparable quantity of a dangerous drug, the applicant cannot be heard to complain that the deputy judge sentenced him in accordance with the trafficking guidelines. The application for an extension of time within which to appeal against sentence is therefore refused.