THE QUEEN v. CHU CHUN WAH AND OTHERS

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The three applicants, whom for convenience we shall refer to as the 1st, 4th and 5th accused, appeared with two other accused, the 2nd and 3rd accused, in the High Court on an indictment containing 3 counts, only two of which, namely manufacturing a dangerous drug and conspiracy to defeat the course of justice concerned the 1st, 4th and 5th accused. The 2nd and 3rd accused were indicted on these two counts and a further count of possession of a dangerous drug for the purpose of unlawful trafficking.

2. The 1st accused pleaded guilty to the manufacturing count, and the trial proceeded against him on the conspiracy count and against the other accused on the counts which related to them. They were all convicted on these counts.

3. The 1st accused was sentenced to 18 years imprisonment on the manufacturing count and to 4 years concurrent on the conspiracy count. The 2nd and 3rd accused were sentenced to 18 years on both the manufacturing and possession counts, such sentences to be served concurrently. They also received sentences of 5 and 6 years respectively on the conspiracy count, such sentences to be served concurrently with their other sentences. The overall sentence imposed on each of the 1st, 2nd, and 3rd accused was therefore one of 18 years imprisonment.

4. The 4th and 5th accused were sentenced to 6 and 4 1/2 years respectively on the conspiracy count. They applied for leave to appeal against both conviction and sentence. However, the hearing of their applications concerning sentence and that of the 1st accused for leave to appeal against his sentence on the manufacturing count was adjourned pending resolution of the applications for leave to appeal against conviction.

5. On 1st October 1990 the applications relating to conviction were refused, and on the 6th February 1991 we granted the applications of the 1st, 4th and 5th accused for leave to appeal against their sentences. Their appeals were allowed. The sentence of the 1st applicant was reduced to one of 16 years' imprisonment, and those of the 4th and 5th applicants were reduced to 5 and 3 1/2 years imprisonment respectively. We now give our reasons.

6. It is not necessary to embark on a detailed recitation of the facts of the case, all of which were analysed in great depth in the hearing of the applications for leave to appeal against conviction.

7. Suffice it to say that, acting on information, a police squad raided a house in Fairview Park and found the 1st, 2nd and 3rd accused and another man surnamed Chan in the process of manufacturing heroin. The quantity involved was 13326.58 grams of a damp mixture containing 9,782.66 grams of a mixture containing 599.33 grams of salts of esters of morphine, and 3461.26 grams of a mixture containing 2036.04 grams of salts of esters of morphine. Also seized was a quantity of liquid, namely, 3338 millilitres containing 1,103.71 grams of salts of esters of morphine.

8. The conspiracy count alleged and the jury found that the 1st, 2nd and 3rd accused conspired with the 4th and 5th accused, who were a sergeant in charge of the police squad and one of his constables, to conceal and destroy evidence relevant to the criminal involvement of the 2nd and 3rd accused in the drug offences and to give false accounts of the circumstances surrounding the discovery of the drugs.

9. In order to implement the conspiracy the 2nd and 3rd accused were permitted to take showers to wash all traces of heroin from their bodies. It was then arranged between the conspirators that they should give an account of the presence of the 2nd and 3rd accused on the premises which would suggest that they were mere visitors and had no connexion with the drugs.

10. The scheme came to light when Chan made full disclosure to the ICAC. Following this another arrested person and a constable in the team of arresting officers also co-operated with the authorities.

11. The 1st accused's ground of appeal against sentence was that 18 years imprisonment is excessive having regard to his plea of guilty to the manufacturing count, the lesser role which he contends the trial judge acknowledged was played by him in the manufacture of the drugs, and the sentences imposed on his co-accused, all of whom pleaded not guilty.

12. The evidence disclosed that the 1st accused had been engaged by the 2nd and 3rd accused, each of whom was a senior officer bearer in a trial society, to assist them to manufacture the drug. Although he was originally indicted with those two accused on the possession count the Crown amended the indictment by deleting his name from that count.

13. Mr Plowman, who appears for the 1st accused, submitted that for the purpose of sentencing a clear distinction should have been made between the 2nd and 3rd accused on the one hand and the 1st accused on the other, because, not only was the 1st accused not tried on the possession count, but, unlike the 2nd and 3rd accused, he pleaded guilty to the manufacturing count.

14. It must have been evident to the 1st accused that, having been found stripped to his underpants and vest, and with his body contaminated with heroin when the main body of police later arrived at the premises in response to a call from the original raiding squad, there was no realistic possibility that he could escape conviction on the manufacturing count. We accept, however, that he should have received some recognition for his guilty plea.

15. Mr Plowman further contended that a starting point of 18 years was too high for the manufacturing offence. We do not agree. In our view, bearing in mind the scale of the operation, 18 years was by no means excessive. This court has previously stated that the offence of manufacturing a dangerous drug is more serious than those of possession for the purpose of unlawful trafficking and trafficking itself.

16. However, accepting as we do that a distinction should have been made between the sentence imposed on the 1st accused and that passed on the 2nd and 3rd accused we reduced his sentence to one of 16 years' imprisonment.

17. Mr Laskey and Mr Hemmings, who appeared on behalf of the 4th and 5th accused respectively, submitted that the sentences imposed on their clients were manifestly excessive. They cited several cases in which, with one exception, the circumstances were very different from those with which we were here concerned. The only case which was of assistance was The Queen v. Leung Kin-chak & another (unreported) Criminal Appeal No. 612 of 1986. There a sentence of 5 years' imprisonment was upheld against a police sergeant who together with a police constable and four drug traffickers had entered into a conspiracy in pursuance of which for a period of some six weeks the drug traffickers were given protection by the police officers by way of advance warnings of police raids. The sergeant received between $20,000 and $24,000 for his part in the conspiracy.

18. Mr Laskey contended that unlike the sergeant in Leung Kin-chak, the 4th accused had not engaged in a protracted course of illegal conduct but had succumbed to a sudden temptation. Moreover, there was no evidence of any handover of money as payment for his role in the conspiracy.

19. Mr Hemmings submitted that the 5th accused was merely a subordinate officer who took no part in the negotiations between his senior officer and the 2nd and 3rd accused as a result of which the conspiracy was hatched, but simply went along with what had been agreed. Likewise there was no evidence that he received any reward for his complicity. It was Mr Hemmings' contention that the starting point adopted by the deputy judge was too high and that the sentence differential between the 4th and 5th accused was insufficient.

20. While we accept that the two officers did not go to the premises in the knowledge that a drug offence was being committed, but had simply been instructed to investigate a complaint of suspicious behaviour, it is plain that they were only too ready to yield to temptation when it occurred. By their conduct they were attempting to defeat the course of justice by making it appear that the 2nd and 3rd accused had not been involved in the commission of an offence of the utmost gravity. Indeed, had it not been for the fact that before the 3rd accused had informed the 4th accused that he and the 2nd accused were senior officer bearers in triad societies, one of the raiding party had already telephoned the police station and reported the number of persons found on the premises, we have little doubt that both the 2nd and 3rd accused would have been allowed to escape completely and that it is highly unlikely that their involvement would ever have come to light.

21. We are not impressed by the submission that there was no evidence that the 4th and 5th accused received any payment for their roles in the conspiracy. We do not for one moment think that in their attempt to protect senior triad office bearers these officers expected their efforts to go unrewarded.

22. Having said that, however, it is our conclusion that the starting point for sentence was too high. It was for that reason that the sentences were reduced to 5 and 3 1/2 years respectively.