R. v. SIU KWONG WING

IN THE COURT OF APPEAL

1992, No. 528
(Criminal)

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J U D G M E N T

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Headnote: The facts which are the basis of a guilty plea should be read out in open court and acknowledge by the defendant to be true.

Silke, V.-P.:

1. This is the judgment of the Court.

2. The Applicant, Siu Kwong Wing, appeared before Her Honour Judge Chua at trial on a single charge, that was possession of dangerous drugs for the purpose of unlawful trafficking. This was a joint charge and the 2nd named defendant was one Tong Lin Nor. We are not concerned with her.

3. The particulars were that they, on 4th July 1991, inside a house on the roof top of No.11 Waterloo Road, Yaumati in Kowloon had in their possession 40.93 grammes of a mixture containing 27.10 grammes of salts of esters of morphine - this for the purpose of unlawful trafficking. The applicant now seeks leave to appeal against his conviction and his sentence. He had pleaded guilty to the offence and was represented by counsel on the occasion of his court appearance.

4. In his grounds of appeal in respect of conviction he makes reference to three matters. First, that the judge misdirected him to plead guilty and, in conjunction with that, that the judge failed to make representations on his behalf. We have the benefit of the transcript of the hearing that took place in the District Court. There is nothing there to sustain the first complaint. It is not for a judge to make representations on behalf of a defendant who is competently represented by counsel. There is nothing on the papers to indicate that counsel in any way failed in his duty.

5. Secondly, he suggests that, because of the passage of the Bill of Rights, no one can be charged with this particular offence if the drugs are less than 100g in quantity. That is a complete misapprehension.

6. Thirdly, he makes the point that his counsel misled him into pleading guilty. On the facts to which we will refer in a moment he had very little other choice. Having pleaded guilty he received the discount for that plea.

7. The facts indicated that police officers raided this premises in Waterloo Road and there found the applicant, his wife and two men. The applicant was actually sitting at a table and in act of pouring dangerous drugs out of a blender, by the use of toothbrush, onto some paper. Equipment for the smoking of dangerous drugs and four plastic bags containing drugs were seized on the premises. The applicant and his wife had occupied this premises for about two years.

8. In a cautioned statement the applicant said that he had brought the drugs from Mainland China - the suggestion being that they were cheaper there - and that he had given some of the drugs to the two men who were on the premises with him, though not for payment.

9. There is nothing to show that the plea was in any way a wrong plea. It was if anything a sensible one accepting the inevitable. There is nothing to show that the conviction should be in any way interfered with.

Sentence

10. On sentence, the trial judge bore in mind the quantity of the drugs and the guidelines set out in R. v. Lau Tak Ming and Others [1992] HKLR 370 where a tariff relating to quantities between 10 grammes and 50 grammes - and here the quantity of the narcotic was 27.10 grammes - attracts a sentence of between 5 to 8 years imprisonment.

11. The trial judge had called for a background report and a report from the Drug Addiction Treatment Centre in relation to this man. The applicant had a large number of previous convictions, some of them drug related and two of them, in 1979 and 1988, being similar type of convictions as here. She had originally adjourned the sentencing process until she was provided with these reports.

12. As the defendant was then waiting trial in the High Court in relation to other drug offences he was not thought a proper person for detention in Drug Addiction Treatment Centre as the security aspect of an open centre would not assist in retaining him for the purposes of his appearance in the High Court.

13. The judge took as her starting point of sentence 5 years imprisonment. That is at the lowest end of the scale. She then gave the applicant a discount because of his plea. She could indeed, had she wished, started at a higher point in the scale. There is nothing wrong with the sentence here in proportion to the quantity of the narcotic and in relation to that which was said in Lau Tak Ming. The sentence does not warrant our interference and leave is refused.

14. We would refer to one matter before we leave this case. We note that, at the time of the plea, a statement of agreed facts was handed up and of this the counsel then appearing for the applicant said:

"This has been read and explained to the defendant. I waive the right to have it read out."

15. With respect, the judge - nor any other judge - should accept such a waiver. It is of importance that the admitted facts or the facts upon which the conviction is to be based should be read out in open court to the applicant and acknowledged by him as being true. That this has been done should be clearly apparent from the record and this applies whether the applicant is represented or is not represented. If this is clearly done it avoids complications at a later stage and is the proper way of having facts admitted by a defendant at trial where those facts are the basis for the conviction where there is a plea.