THE QUEEN v. WU MAN HING AND ANOTHER

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JUDGMENT

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Kempster, JA :

1. This is the judgment of the Court.

2. On 25 April 1989, on his own plea, Poon Chi-ming was convicted by His Honour Judge Corcoran, sitting as a Deputy High Court Judge, on two counts of possessing dangerous drugs for the purpose of unlawful trafficking. On the 27th of that month, also on his own plea but by reference to a re-amended indictment, Wu Man-hing was convicted by the same judge on one like count. The judge then proceeded to sentence. He dealt with Wu first, following the order of names on the original indictment, and sentenced him to five years and nine months imprisonment. Poon he sentenced to nine years imprisonment on the one count and to seven years on the other; to run concurrently. Both Wu and Poon now seek leave to appeal against the sentences respectively passed upon them.

3. The admitted facts were simple. At about 5.30 pm on 22 October 1988 in Tai Kok Tsui, Kowloon, Wu, who was not carrying anything, was seen to board a private car. Poon was at the wheel and drove off. At 31 Kok Cheung Street the car stopped and Wu got out. Customs Officers arrested both of them. Poon was carrying a black plastic bag containing two packets which, on subsequent analysis, were found to contain 912.47 grammes of a mixture containing 52.9 grammes of esters of morphine. These were the dangerous drugs in respect of which he was convicted and sentenced.

4. Poon remained in the car which was searched by Customs Officers. Another plastic bag containing two packets was found in the back of the vehicle. On subsequent analysis these two packets were found to contain 907.62 grammes of a mixture containing 51.39 grammes of salts of esters of morphine. The first count to which Poon pleaded guilty and on which he was convicted related both to the dangerous drugs which Wu had taken from the car and to those found in it making a total of 1,820.09 grammes of the mixtures.

5. Poon was then taken to the room in Begonia House, So Uk Estate, where he lived. Yet another plastic bag containing two packets was found in a shoe-box. On subsequent analysis it was found to contain 904.54 grammes of a mixture containing 51.36 grammes of salts of esters of morphine. These dangerous drugs were the subject matter of the further count to which Poon pleaded guilty and on which he was convicted.

6. Wu has spoken with some eloquence of his remorse at the hurt he has caused to his family. Poon, by counsel, seeks our intervention on the footing that the discount he was given by the judge for agreeing to give evidence incriminating Wu was insufficient.

7. The amount of mixture possessed by Wu for the purpose of unlawful trafficking was just short of the "very substantial" category (about 1,000 grammes) which, in Chan Chi-ming v R 1979 HKLR 491, this court suggested might warrant a sentence in the range of eight to twelve years imprisonment. Obviously with that authority in mind the trial judge took as a starting point for the sentencing process a term of seven years and nine months imprisonment. This he discounted by one year for the plea of guilty and by a further year for the assistance which Wu had afforded the authorities; reducing the sentence imposed to five years and nine months. Unlike Poon Wu was certainly in no position to ask for a further discount for good character and, having regard to his antecedents, must have been aware of the hardship, shame and distress he would bring on all those dependent upon him when committing this crime. But good character, in any event, has little bearing on sentences passed in this class of case. As Sir Denys Roberts CJ said in the authority already cited at p 493 : -

"... the fact that the accused has a clear record will do little to reduce his sentence though assistance to the police and a plea of guilty may ... "

The Chief Justice then went on to say : -

"A bad criminal record, and particularly one in which previous drug offences appears will be a factor which the court should take into account and will usually result in a higher sentence than in the case of a man with a clean record".

This appears to be contradictory. He meant, we think, that a man with a clean record may expect the court at least to recognise the fact and not to apply the heaviest sentence within the available parameters.

8. Wu also complains that whereas he received a discount of one year for his plea of guilty Poon was allowed one year and six months. The two discounts, however, were roughly proportionate to the respective sentences passed upon the two applicants. There is no reasonable ground for interfering with the careful sentence passed by the judge on Wu for his offence and his application for leave to appeal against it must be dismissed.

9. The total of the mixtures containing dangerous drugs found in Poon's possession on 22 October 1988 came to 2,724.63 grammes. This suggests the higher end of the eight to twelve years bracket for "very substantial" quantities of dangerous drugs mentioned in Chan Chi-Ming v R and the trial judge started his calculation at eleven years and six months accordingly. He gave the discount of one year and six months for plea already mentioned, which was not ungenerous having regard to the fact that this applicant was found in possession of the dangerous drugs beyond any peradventure, and a further year for assisting the authorities by offering to give evidence for the Crown against Wu at a stage when Wu had not yet pleaded guilty. Thereby the overall total was reduced to nine years. This was the sentence the judge imposed in relation to the 1,820.09 grammes found in the car. For the 904.54 grammes found in Begonia House he imposed a concurrent service of seven years.

10. It is suggested today that the judge failed to make an adequate allowance for the behaviour of Poon, under advice, in offering to give evidence implicating Wu. Apparently he was willing to implicate him in relation to all the dangerous drugs found at the time that the motor car came to a halt though the prosecution did not elect to rely on such evidence.

11. Mr Alderdice on his behalf has emphasised the importance that should be attached, in the public interest, to the allowance of a very real discount to criminals who are prepared to turn Queen's evidence, to assist the authorities and thereby to procure the conviction of other and perhaps more seriously involved participants in this lethal traffic. He points out that those who do cooperate with the authorities in this manner may in some instances be at such risk, in prison, that the circumstances of their confinement become more onerous than those of their fellows and that in extremely serious cases they may be at risk when released into the community at large. All these factors properly fall for consideration but in the instant case regard must be had not only to what Poon was prepared to say but also what he was not prepared to say. He gave no specific or wide ranging information about drug trafficking in Hong Kong. Had he done so Mr Alderdice would have prayed such cooperation in aid. We are not prepared to find that the reduction or discount of one year was inadequate. Accordingly we find no grounds to criticise the careful sentencing exercise carried out in relation to Poon either. The contention in the Notice of Appeal that the sentence on Poon was manifestly excessive or wrong in principle is unsustainable. His application for leave to appeal against sentence is also dismissed.