THE QUEEN v. YEUNG WAI KWONG

1987 No. 64
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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1. This is an appeal against conviction by the applicant on the charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The charge was that, on the 16th September 1986 at the Cafe de Coral in King’s Road, he was found with 920 grammes of a mixture containing 78 grammes of salts of esters of morphine in his possession for the purpose of unlawful trafficking. The facts revealed that he was seen by a police officer acting suspiciously while carrying a brown plastic bag and that they detained him and found the dangerous drugs in the plastic bag. He pleaded not guilty to that charge and was found guilty after trial. He now, appearing in person, in Grounds of Appeal which he has drawn himself, raises a number of matters. There are 7 grounds of appeal although they are, because the number 4 is duplicated, numbered only 1 to 6.

3. 1, 2, 3, 5 and 6 are grounds which speculate as to matters of fact and credibility which were all before the trial judge and were for his resolution. Having heard the evidence he resolved those matters against the applicant.  None of them can now properly be considered by this court.

4. The first ground 4 suggests the possibility that witnesses might have acted improperly during the trial by talking together. This is nothing more than speculation, and again it is not something that this court can properly consider. In the second ground 4 the applicant suggests that the trial judge, having rejected one of his statements, should also have rejected the other statement. This is a misunderstanding of what occurred. The trial judge did not reject either statement. He accepted both of them (Exh. 7 and Exh. 8) after hearing evidence in voire dire proceedings and, having accepted them acted upon them when coming to his conclusion of guilt. There is nothing of weight in any of the matters raised by the applicant in his appeal against conviction and leave is, therefore, refused.

5. The applicant was sentenced to imprisonment for 6½  years. Mr PoIson who appears for him today, on sentence, has raised a number of matters which he suggests should make this court consider that a sentence of 6½  years was manifestly excessive.

6. The first matter is introduced in his grounds of appeal in the following way:-  “The learned trial judge appears to have accepted that all the appellant received for the delivery of the drugs in question is $200.”

He goes on to say: -

"The element of gain was therefore not present and the guidelines in Chan Chi Ming should not, of necessity, apply in this case."

7. The trial judge had actually said: “I was asked to accept that all he got out of this was $200, that may be the case." I am satisfied that the trial judge, when he was using those words, was simply indicating that, while it may be that all he got was $200, it makes no significant difference in the circumstances of the case. The trial judge was also entitled to bear in mind the admission by the applicant, made in the same statement as that in which he spoke of the $200, that he had carried a pager and that he was available for contact by the person "Kit Chai" who, he suggested, was the master mind. Nothing in this first matter gives us any reason to consider that the sentence was manifestly excessive.

8. The 2nd matter raised was that the appellant was an "insipid and weak" person. It is suggested that this is a special circumstance to which no real weight was given by the trial judge. It is clear when the Reasons for Sentence are read that the trial judge sentenced on the basis that the applicant was involved, to an extent not ascertained as regards reward, in a serious offence of trafficking in dangerous drugs. He was aware of the guidelines set out in Chan Chi Ming and he sentenced within those guidelines. There has been nothing raised which causes us to consider that the sentence was not a proper one. The application is refused.  Having examined the record it is not clear whether or not the applicant was sentenced to 6 years and 9 months or 6 years and 6 months. In view of the uncertainty, we consider the proper course is to order that he be imprisoned for a period of 6 years and 6 months and, if necessary, allow the appeal to that extent.

Mr M.A. McMahon (Crown Prosecutor) for the Respondent

Mr Ian PoIson (M/s Anthony Kwan & Co.) for the Applicant