HKSAR v. SHUM KOON LAM

CACC 73/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 73 OF 2001

(ON APPEAL FROM HCCC 168 & 293/1997)

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J U D G M E N T

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Hon Yeung J (giving the judgment of the Court):

1. The applicant, Shum Koon Lam was charged with the 1st, 2nd and 4th counts of trafficking in a dangerous drug, the 3rd and the 6th counts of offering to traffic in a dangerous drug and the 5th count of doing an act preparatory to manufacturing a dangerous drug. In respect of the 6th count, the applicant was jointly charged with D2.

2. On 5th December 1997, the applicant was convicted of the 3rd, 4th, 5th and 6th counts before Lugar Mawson J and a jury in the High Court in absentia as he absconded on the day when the judge started his summing up. He was however acquitted of the 1st and 2nd counts. D2 was also acquitted of the 6th count.

3. Upon his apprehension over 3 years later on 31 January 2001, the applicant was sentenced to the terms of 5 years on each of the 3rd and 6 counts, 1 year on the 4th count and 14 years on the 5th count to run concurrently. He now seeks leave to appeal against both convictions and sentences.

4. The case involved a joint under-cover operation of the ICAC and the police and the main witness was a paid ICAC informer by the nickname of Danbury.

5. The applicant first met Danbury when they were both in prison. In early 1995, on the instruction of his ICAC handler, Danbury approached the applicant and indicated his interest in Sai Chai (No.4 heroin). According to the prosecution, there were then 3 occasions in March, April and May 1995 when the applicant arranged to meet Danbury and supplied him with dangerous drug either directly or through another person.

6. On the 1st occasion, a larger quantity of heroin was involved and Danbury had to pay $2,200 for it. On the 2nd and 3rd occasions, Danbury was supplied with small quantities of dangerous drug as samples. These three occasions formed the subject matters of the 1st, 2nd and 4th counts.

7. The 3rd count was alleged to have been committed between 28-30 of May 1996 at the Concourse Hotel in a meeting between the applicant, Danbury and an undercover police officer from the Narcotic Bureau nicknamed Ah Di. Ah Di posed as a potential buyer and the applicant indicated that he could supply 4 kilogrammes of "ice" to Ah Di.

8. The 6th count concerned a meeting between the applicant, D2, Danbury and another ICAC officer called "Lun Chai" in the coffee shop of Kimberly Hotel on 10 October 1995. "Lun Chai" posed as a potential buyer and D2 was, according to the applicant, a middleman who had contact with sellers of heroin. At the meeting there was discussion about the price of the heroin and how the heroin would be delivered and paid for. It was at this meeting that the applicant and D2 were arrested.

9. As for the 5th count, it was suggested that the applicant, Danbury, "Lun Chai" and another ICAC officer "Chun Chai" set up a plant at Flat 764, Kam Hung House, Choi Hung Estate to manufacture heroin. They agreed that pure heroin would be bought and would then be adulterated with caffeine, theopalyene and antipyrene. The mixture would be pressed into solid bricks for sale.

10. Pursuant to the agreement, equipment including pressing moulds, an electronic scale and half a kilogramme each of caffeine, theopalyene and antipyrene were purchased.

11. There were surveillance videos showing the demonstration by the applicant on the use of the electronic scale as well as a "Bie San" ceremony in the flat.

12. The applicant denied the supplies of dangerous drugs to Danbury on the 3 occasions under the 1st, 2nd and 4th counts. He however accepted the factual allegation against him in respect of the 3rd, 5th and 6th counts. In particular he admitted that he took part in offering to sell 2 kilogrammes of "ice" to Ah Di, but not as much as 4 kilogrammes particularized under the 3rd count. He admitted that he recruited D2 to pose as a middleman and said he had contact with heroin supplier and together with Danbury and "Lun Chai"; they talked about trafficking in dangerous drugs.

13. As for the 5th count, the applicant also admitted that he took an active part in putting together the equipment and the chemicals needed to manufacture dangerous drugs. He ordered the steel used in making the pressing moulds. He also purchased the scale and collected the chemicals from Ah Ming.

14. The applicant denied that he was the instigator. He said he just followed Danbury's instructions. He suggested that he himself was a police informer under a Station Sergeant Tam. On each of the occasions particularized in the 3rd and 6th counts, he just wanted a case to report to Station Sergeant Tam. As for the events leading to the 5th count, again he just went along with the others in order to inform on their criminal activities. At some stage, he also suggested that he was trying to cheat Danbury of money.

15. On the two counts of offering to traffic in a dangerous drug, the judge gave the following direction to the jury:

"The Dangerous Drugs Ordinance provides that it is immaterial whether or not there really are any dangerous drugs in existence. It does not matter whether or not the defendant had dangerous drugs in his possession, or easy access to them, or the means to obtain them. And whether or not any person who is charged with this offence intended to carry out the offer into effect is irrelevant. The offence is complete when the offer to supply or to procure a dangerous drug is made and that is regardless of whether the person making the offer intends to carry the offer into effect by actually supplying or procuring the dangerous drug. For example, people who have sold others a peanut, wrapped in a piece of cellophane, pretending that it was cocaine or people who sold vitamin C tablets, pretending that they were Ecstasy tablets, have rightly been convicted of this offence."

16. At pages 26, 30 and 32 of the summing up, the judge continued:

"Let me start with the 3rd, 5th and 6th counts. I've directed you on the applicable law to these offences. It was Mr Callaghan's submission to you yesterday in his address that the 1st defendant in his evidence had admitted committing these three offences."

.......

"Even on the 1st defendant's evidence alone, if you believe him- and of course whether or not you believe him is a matter for you- it is quite clear that the 1st defendant went far beyond anything that could be described as a passive participation in these three offences designed for the purposes of bringing offenders to book or preventing further breaches of the law. Although he denied that he instigated these offences- he blames Danbury for that- he has admitted that he was involved in them from their inception. In no way, members of the jury, can it be said that the 1st defendant has spoken of participating in offences which could be said to be on-line when he joined in them."

.......

"So, members of the jury, although the 1st defendant has not admitted his involvement in these three offences to the extent and to the depth that the prosecution says he was involved. He has admitted involvement to an extent sufficient for you, if you believe him, to be able to find that he is guilty of these three offences. As I have already told you- I've told you this twice- his stated motive for being involved in irrelevant."

"Members of the jury, you may conclude from what I have said about the facts of the 3rd, 5th and 6th counts that I have formed a certain view about this case on those counts."

17. The applicant complains that that he had not been given a fair trial as the judge had already indicated that he was guilty of the 3rd, 5th and 6th counts in his summing up to the jury. He suggests that the harm to his case could not be undone by the judge saying to them afterward that it was a matter for them and not for him.

18. Was the judge right when he said, in effect, that the applicant had in his own evidence admitted the 3rd, 5th and 6th counts?

19. As for the 3rd and 6th counts of offer to traffic in a dangerous drug, it is well established that the offence is committed when an offer is made and it matters not if the defendant had the intention to supply the dangerous drugs.

20. Power VP in The Queen v Fang Yee Kwok Criminal Appeal No. 17 of 1996 said the following at page 2 of the judgment:

"He was charged pursuant to s.4(1)(b) of the Dangerous Drugs Ordinance. There was considerable argument before the trial judge as to whether that section applied to circumstances where the person charged was contending that he had no intention to supply the drugs. At the conclusion of that argument the trial judge held:

'I was able to look up this case Haggard v Mason [1976] 1 All ER at page 337. Now that's a decision of the Queen's Bench Division. And that also deals with this point, and at page 340 Mr Justice Lawson said this:

"In my judgment, the offence was completed at the time when to follow the findings of the justices, the appellant met Heward and offered to sell him a quantity of lysergide. To my mind, that was a clear situation in which the justices were right to find that there was an offer to supply a controlled drug. An offer made by the appellant to Heward, the person to whom the offer was made. It matters not in relation to the offence of offering to supply that what is in fact supplied pursuant to the offer, the offer having been accepted, is not in fact a controlled drug."

Of course, if the charge had been supplying a controlled drug, it is clear that the fact that a controlled drug was not in fact supplied would mean that that offence could not have been established. So the decisions are virtually the same, really.

I see no problem or difficulty in adopting the decisions of the English Court of Appeal insofar as the definition of offer and the context of our legislation is concerned, and that is my ruling.'

It was in consequence of this ruling that the applicant pleaded guilty. The Applicant through Mr Mullick, who appears for him in this court, now contends that the judge was wrong in holding as he did. It is contented that s.4(1)(b) requires the Crown to establish that the offender 'had intended to offer to traffic in a dangerous drug, in that he either "knew" or "believe" that the substance he had offered to supply was a dangerous drug'. The trial judge relied on Haggard v Mason and in the more recent case of Goodard [1992] Criminal Law Review 588, the court, dealing with a similar situation, held:

'There is nothing in section 4(1)(b) which provides that the person who makes the offer must intend to supply the controlled drug. The offence is complete when the offer to supply a controlled drug is made, quite regardless of whether the offerer intends to carry the offer into effect by actually supplying the drug. The construction contended for by the applicant would make it almost impossible for the Crown to meet a defence that the defendant did not intend to carry out the offer. That could not have been the intention of the Parliament and it was contrary to the plain meaning of the words. If a defendant having been convicted of this offence persuaded a judge that it was not his intention to carry the deal into effect, that may be a matter for mitigation but it could not be a defence.'

The commentary on this decision in the Criminal Law Review states:

'The actus reus of the offence is the making of the offer and the appellant intended to make the offer, even if he did not intend to carry it out. An intention to cause the actus reus of an offence is generally a sufficient mens rea in the absence of any specific requirement of an ulterior intent.'"

21. Quite apart from reminding the jury that it was their view of the facts that counts, the judge was right in his direction to the jury that on his own admission, and subject to the question of participating in of a "laid on" offence merely for the purpose of apprehending the offenders with which the judge fully dealt, the applicant was guilty of the 3rd and 6th counts and the complaint about unfairness in respect of those charges has not been made out.

22. On the other hand, when the judge suggested to the jury at page 32 that the applicant by his own evidence had admitted the 5th count, he might at that point have overstated the position.

23. For the 5th count of doing an act preparatory to manufacturing a dangerous drug, the prosecution must establish that the preparatory act undertaken by the defendant was carried out with the intention to manufacture a dangerous drug. If the defendant never intended dangerous drug to be manufactured, he is not guilty of the charge. The applicant said he was trying to go along with the other so that a case could be presented to his handler, Station Sergeant Tam. At one stage he also said he intended only to cheat Danbury of money. Such evidence, if accepted, could mean that there was never any intention to actually manufacture a dangerous drug.

24. Despite the earlier direction to the jury, the judge had dealt with the 5th count separately from the 3rd and 6th counts.

25. When the judge directed the jury in connection with the 5th count, he said the following at page 15 of the summing up:

"The issue here, member(s) of the jury, is one of intention."

26. Clearly this aspect was very much a live issue in the deliberation of the jury. They seek further direction from the judge with the following question:

"My Lord, our concern is that the nature between an act preparatory to Manufacturing a DD and a deception is very different. Therefore we have the following query: in case I trust that D1's acts in buying grinders, chemicals, moulds and other things were in the end trying to deceive D77's money in which he never think of manufacturing DD in reality, should section 6(1)(b) and (2) of the Dangerous Drugs Ordinance, as in Count 5, still apply?"

27. In response to the question, the judge gave the jury the following further direction:

"What I said was this: was when discussing with you, when directing you on the Count 5 and the law applicable to it, what I said was: the issue here is one of intention. You must, from the evidence, be satisfied beyond reasonable doubt that when the defendant- that's the 1st defendant- intended that the equipment which was purchased and placed in the flat, and that the caffeine and the theophylline and the antipyrine would be used, once heroin had been purchased, to adulterate that heroin with the three other chemical substances and press the resulting mixture into solid bricks intended for sale. So to summaries it, members of the jury-there is always a danger in summarizing what one says-but to summaries it, you must be satisfied that when the defendant did all those acts, he intended- if heroin was obtained- that it would be mixed with the other two chemicals. And that the equipment, you've seen, would be used to manufacture it. You must be satisfied about that."

28. Looking at the summing up as a whole, we are satisfied that the judge had dealt with the charges fairly and adequately. The judge was correct in his direction to the jury on the assertion by the applicant that he was acting as an informer for Station Sergeant Tam. In fact on the issue of agent provocateur, the judge gave detailed direction to the jury as to the circumstances in which being an agent provocateur could be a defence. The judge's summing up on this issue cannot be faulted.

29. The judge was also right when he said the applicant's motive was irrelevant to the issue of his guilt. The judge had also correctly identified the corroborative evidence in respect of the 3rd, 5th and 6th counts.

30. It was pointed out that the judge had not specifically directed the jury on the burden and standard of proof when the defence of being an agent provocateur was raised. But the judge had reminded the jury generally on the burden and standard of proof in a criminal case. We are persuaded that such direction, in the circumstances of this case is quite adequate. In view of Station Sergeant Tam's evidence that he had lost contact with the applicant since January 1995 and that he was transferred to the Airport Police Station in April 1995, the defence of agent provocateur could not possibly succeed.

31. The judge had put before the jury all relevant matters. The jury was entitled to come to the conclusion as it did. The applicant was properly convicted on the 3rd, 5th and 6th counts. There is nothing unsafe and unsatisfactory about those convictions. In the circumstances, the application for leave to appeal against those convictions is refused.

32. On the other hand, the evidence in support of the 4th count came from Danbury alone. Although the applicant admitted in his cautioned statement that he had introduced Danbury to a person called Ah Hung because Danbury wanted to get "credit cards" and "ice", he was not fully aware what they were up to. He specifically denied any knowledge of drug trafficking activities between Danbury and Ah Hung.

33. In any event Mr Cheang on behalf of the prosecution conceded that there was no other incriminating evidence in support of the 4th count other than that of Danbury.

34. The judge in his summing up to the jury also said the following at page 21:

"In relation to the 1st, 2nd and 4th counts, the ones of trafficking in dangerous drugs, where it's alleged that the 1st defendant passed three small quantities of dangerous drugs to Danbury, or, in the case of the 4th count, had another man, at his instigation, pass a small quantity of 'ice' to Danbury, there is no such independent evidence. No other witnesses saw the passing of dangerous drugs, be they heroin or 'ice' from the 1st defendant; or, as I said in the case of the 4th count, from a man called Ah Fung (Hung)- allegedly in the 1st defendant's presence and at his request- to Danbury."

35. In the circumstance, there is no logical justification for the jury to acquit the applicant of the 1st and 2nd counts and convict him of the 4th count. Mr Cheang also conceded that there was no conceivable rationale for such inconsistencies.

36. We are of the view that the conviction in respect of the 4th count is unsafe and unsatisfactory and justice will be served by quashing such conviction.

37. We grant the application for leave to appeal against the conviction in respect of the 4th count, treat this application as the appeal and allow the appeal. The conviction on the 4th count is quashed and the sentence of 1 year's imprisonment is set aside. As the applicant was sentenced to concurrent terms of imprisonment, the setting aside of the 1 year's imprisonment would not affect the overall sentence.

38. On the application for leave to appeal against sentence, the applicant's only complain is the sentence of 14 years in respect of the 5th count. He said since it was a police entrapment, there was no way he could have manufactured any quantity of dangerous drug. He also said he had been a fugitive for over three years and his life as such was harsh and pitiful. He asked for a reduction in sentence so that he could be released earlier to take care of his wife and a young daughter.

39. In sentencing the applicant, the judge said the following:

"I am aware that the only dangerous drug the evidence shows that you handled was the 0.64 grammes of 'ice' comprised in the trafficking count. Nevertheless, the evidence shows that you were well acquainted with the method of pressing the packing heroin, and you know what activities are required to adulterate heroin and where to obtain them.

You also know how to design, and in fact had constructed, a sophisticated hydraulic press. That was a press of the type that I, and all judges in Hong Kong, know is used to compress heroin mixture into hard blocks. I have no doubt that had not the whistle been blown on your activities by the police, you would have laid your hands on a very considerable quantities of heroin in order to process it.

The thoroughness and determination with which you went about this enterprise indicates that you weren't playing at it, but that you were acting for real."

40. The judge was entitled to take the view of the case as he did. Doing an act preparatory to manufacturing a dangerous drug is indeed a most serious offence and calls for a very substantial term of imprisonment.

41. Counsel for the prosecution, Mr Cheang has referred us to a number of authorities including AG v Woo Kwai-fong and others [1989] 1 HKLR 282, R v Tang Kam-kwong, CA 183 of 1996, R v Cheung Wai-kwong [1997] 3 HKC 496, HKSAR v Tang Siu-man, CA 360 of 1996, and HKSAR v Wong To, CA 508 of 2000.

42. Those cases indicate that a term of imprisonment ranging from 15 to 25 years is common for an offence of manufacturing a dangerous drug and that doing an act preparatory to manufacturing a dangerous drug should attract similar sentence.

43. We accept that the case being a case of entrapment may be a mitigating factor. But the total sentence of 14 years, in view of the culpability of the applicant as revealed by the facts of the case, cannot be said to be manifestly excessive nor wrong in principle.

44. The applicant only had himself to blame if he did suffer as a fugitive. His personal difficulty and the hardship to his family are not mitigating factors for offences of this nature. There is no valid basis for this court to interfere with the sentences. The application for leave to appeal against the sentences in respect of the 3rd, 5th and 6th counts must also be refused.