HKSAR v. CHUNG YIU LAM AND ANOTHER

CACC 117/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 117 OF 2001

(ON APPEAL FROM DCCC NO. 1130 OF 2000 AND 183 OF 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Background

1 In March 2001 six defendants appeared before Deputy Judge McNair in the District Court charged with trafficking in dangerous drugs, in the case of three of them, with aiding and abetting others to traffick in dangerous drugs. There were altogether nine charges and they related to controlled purchases, this is, purchases by a police officer acting under cover, posing as a drug consumer, and using marked money to make purchases. The officer, PC 50327, made his purchases on 29 August, 30 August, 31 August, 2 September and 5 September 2000. What typically happened was that he went to Sau Mau Ping Estate and there he approached one of a number involved in the selling of drugs at that estate and, together with others waiting to buy drugs, was sent to the 12th or 13th floor of Block 37, where someone would take orders, then take the money appropriate to each order placed, would then go away for a short while and return with some drugs, which would be given to the purchasers, including the police officer. Those who allegedly handed over drugs were charged with trafficking in the quantities handed over; those who met the purchasers or addicts and directed them where to go to place their orders, with aiding and abetting the traffickers.

2 Matters came to a head on 5 September when a number of arrests were made. D5 was searched and $2,020 was found on him. He was arrested on 12 September, and identified by the officer at an identification parade on 29 September. D6 was arrested on 23 February 2001, and identified at a parade on 27 February 2001. We are today only concerned with D5 and D6 who, by leave of the single judge, appeal against conviction and, in the case of D5, against sentence as well. D1, D2 and D3 pleaded guilty; but D4, D5 and D6 pleaded not guilty and each was convicted after trial in which each also gave evidence in his own defence.

3 D5 was convicted upon Charge 4 which alleged that on the 30 August 2000, at Block 37, Sau Mau Ping Estate, he unlawfully trafficked in a mixture containing 0.14 grammes of heroin hydrochloride and four tablets containing a total weight of 70 milligrammes of midazolam maleate. For this offence he was sentenced to two years' imprisonment. D6 was convicted upon two charges, namely Charge 2 which asserted that on the 29 August 2000 at Block 37, he unlawfully trafficked in a mixture containing 0.15 grammes of heroin and two tablets of midazolam maleate; and Charge 8 which alleged that on 2 September 2000, again at Block 37, he unlawfully trafficked in a mixture containing 0.16 grammes of heroin and four tablets of midazolam maleate. He was sentenced to two years' imprisonment for each offence, but 21 months of the sentence on the 8th charge was ordered to run consecutively to the two years imposed on the second, a total therefore of three years and nine months' imprisonment.

4 Leave was given to D6 to appeal against conviction because the single judge was of the view that the police officer's evidence of identification of D6, and the judge's treatment of that evidence, was worthy of further examination; in particular the officer's description of tattoos on D6.

The case of D6

5 After each day of the operation the officer who acted as an undercover agent made notes of the day's events and he identified the sellers of the drugs and their assistants by various letters of the alphabet. The evidence against D6 was that of the officer, who said that on 29 August he was told by somebody outside Block 37 of the Estate where to go to buy drugs, and he found himself waiting with five others outside the block and they were redirected twice until eventually they met the actual purveyor of the drugs who took their orders and money, and then supplied the drugs.

6 The evidence of the policeman was that he had some time to observe D6 on 29 August at close range. He gave a description of D6; what he was wearing, his clothing and his approximate age. In his notebook, the officer had written that the man was aged 45 to 50 years, wore spectacles, was thin and had a tattoo on his chest and both arms. The description in examination in chief included a suggestion that "he had a tattoo on his chest and his arms". On the occasion when D6 took orders, the witness was able to observe his face at close quarters and when he returned to deliver the drugs to the witness and others who were there buying drugs, he saw him again for a further two minutes or so. It was not however until 27 February 2001, that is six months later, that he identified him at an identification parade.

7 The next occasion after 29 August upon which he saw D6 was on 2 September. The officer had been led, rather circuitously, to the 13th floor of the block, and there again was D6 who took an order from the officer, who handed over marked money, and D6 went away and returned with the drugs. The officer left and made a report, was handed his notebook, and he made entries in that book.

8 D6 gave evidence at his trial, and his case was that he was indeed present at Block 37 on or about 29 August, but that he went to purchase drugs, not to sell them. When he purchased them on the 13th floor he was alone with the seller. On a second occasion, he again went to purchase drugs; he took no orders nor did he sell any drugs.

9 The matter which led to the granting of leave in the case of D6 was a disparity between, on the one hand, the officer's evidence and notebook to the clear effect that D6 had tattoos on both arms and, on the other, the fact, as was revealed at trial, that D6 has in fact a tattoo on only his right arm, although also on his chest. The suggestion, that is adopted by Mr McGowan in his argument today, is that in the underground world in which addicts and suppliers move, carriers of tattoos are commonplace and, given that D6 admits being at the scene where the officer was on 29 August and 2 September - although his case was that he was there as a buyer and not a supplier - this disparity is a matter which ought to have cast serious doubt on the accuracy of the identification of D6 by the police officer, as a supplier on those two occasions.

10 We note that in his evidence the officer's account varied between saying that the man had tattoos on both arms, and saying that he was not clear. He specifically did not accept that D6 was one of the "junkies" waiting for drugs.

11 The issue of identification of D6 was well before the judge, as was the particular issue of the tattoos. The judge addressed this issue and the issue of the discrepancies within the police officer's evidence at some length and he said:

"PW1 was sure that D6 was the person D recordered in his notebook. He had been about one person space from him on 2 September and had observed him for three to four minutes. In his own words, he could recognise him. He had seen him on a previous occasion when he made a buy.

I found PW1 to have been an honest, credible and reliable witness. I believed him. I found that this discrepancy did not impugn his veracity or reliability. It was not just the tattoo upon which he based his identification. He was clearly confused about the tattoo when he recorded his notes and when he testified. I found that his identification of all the defendants was strong and reliable evidence." (Tr. p. 33)

12 Quite what the judge meant when he said that the witness was confused when he made his notes and when he gave evidence is not clear; and this was one point which moved the single judge to grant leave. But, in the round, and having read the transcript of the evidence as well as the witness' notebook, we are satisfied that there is no proper basis for upsetting the conviction. The witness was in the company of the seller on two separate occasions and face to face at close quarters, and it is common ground that D6 was indeed present in the vicinity on both occasions, and it is common ground that he sported an extensive tattoo over his chest and down one arm. We think that, in the circumstances, the disparity is not as material as suggested, that the trial judge had it well in mind, and that he was entitled, despite it, to come to the conclusion he did. Accordingly, the appeal against conviction in the case of D6 is dismissed.

The conviction of D5

13 The evidence about D5 was restricted to the one incident on 30 August. Here, too, was a description by the officer of going to the building on the Estate and being directed to various points by a number of persons who were apparently engaged upon the trafficking operation, directions which eventually led to a man who took orders from a group of addicts and then supplied the drugs. On 30 August, the officer was eventually led to the 12th floor of Block 37, and he there saw D5. According to this evidence, D5 asked him how much he wanted and the officer placed his order and handed over money; and the same thing happened with three others addicts who arrived at that place. D5 wrote down the orders, walked upstairs to the 13th floor, and shortly thereafter returned, squatted down with the buyers, and distributed the ordered drugs. The officer then left and went to meet his controlling officer to whom he handed the drugs, and he then made his notes. He identified D5 at a parade on 29 September 2000.

14 D5's defence was that he was visiting the premises to collect a debt, and was there waiting for the debtor whose precise address at the Estate he did not know. He said that he had had nothing at all to do with drugs that day.

15 In the case of D5, leave was given on the back, as it were, of D6's case, lest it be demonstrated upon full examination that the evidence of the officer was indeed unreliable, and had not properly been addressed. That transpires, upon full examination, to be an unfounded concern, so that there is no basis upon which to overturn the conviction of D5, and his appeal against conviction is also dismissed.

Sentence

16 We turn now to D5's appeal against sentence. Upon conviction for the offence in Charge 4, namely, trafficking in a mixture containing 0.14 grammes of heroin and four tablets of midazolam maleate, D5 was on 20 March 2001 sentenced to a term of two years' imprisonment. No complaint is made about that sentence in isolation. However, when the appellant, D5, appeared upon his application for leave to appeal against conviction, he drew to the attention of the single judge a suggested grievance, namely, that he was brought back to the District Court over a month after the imposition of sentence, for the judge to make an order in relation to that sentence and its standing in connection with a sentence of 20 months' imprisonment imposed on 5 September 2000, that is, 18 months for another offence of trafficking in dangerous drugs, and six months for an offence of possession of dangerous drugs, two months of which was ordered to run consecutively to the 18 months term. It is clear from the papers that the judge was aware in March that the appellant was already serving a sentence for trafficking in, and for possession of, drugs. On 26 April 2001, the appellant was brought back to court and the judge, having heard counsel, ordered that four months of the two-year sentence passed in March 2001 was to run concurrently with, and the balance consecutively to, the sentence imposed in September 2000. The single judge was concerned about the appropriateness of the order made in April and its surrounding circumstances and, accordingly, gave the appellant leave to appeal out of time against sentence.

17 When the appellant was sentenced on 20 March 2001 the judge, in his Reasons for Sentence, made no reference to the sentence of 5 September 2000. He merely sentenced the appellant to a term of two years' imprisonment for the trafficking offence of which he had just been convicted. However, as we see from the court file, and from a transcript of the proceedings of 26 April, the matter was listed for 26 April in order, as the judge put it, "to clarify the sentence that I handed down on D5". Not surprisingly, the appellant's counsel pointed out to the judge that the appellant had been left with the impression that the sentence imposed in March 2001 was running concurrently with the sentences imposed in September 2000. Nonetheless, the judge said that he had intended to deal with "the issue of concurrency or otherwise", but had omitted to do so.

18 With respect to the judge, the issue, in April, was not a question of "clarification" at all. What the judge did was to vary the order when he had no power to do so and, in varying it, he significantly increased the overall term of imprisonment which the appellant had faced after the passing of sentence on 20 March. A sentence had been passed, and in the absence of the exercise of the power available to the sentencing court under section 82 of the District Court Ordinance, it took effect on the day it was passed, notwithstanding the fact that the appellant was then serving other sentences.

19 Section 82(1) of the District Court Ordinance which is in the same terms as section 68 of the Criminal Procedure Ordinance, Cap 221, provides as follows:

"Where the court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time of the court sentenced to undergo, imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo, as aforesaid."

20 It is evident from the terms of the section and from the absence of any contrary provision that, unaccompanied by an order under section 82(1), the two-year sentence imposed on this appellant started to run on 20 March. It is further evident that there is no obligation upon a court to exercise its power under section 82(1), so that the failure to do so cannot properly be said to render the sentencing exercise incomplete after purported pronouncement of sentence. This is to be distinguished from a situation in which a sentencing exercise is incomplete because the judge has omitted to fulfill a statutory obligation: see, for example, HKSAR v Hui Chi Wai and others [2001] 3 HKC 531. There is conferred on a judge in the District Court no power of review (see, for example, section 104 of the Magistrates Ordinance Cap 227), or of variation (see, for example, section 155 of the Powers of Criminal Courts Act 2000 in England and Wales). In our judgment, the learned District Court judge had not the power to make the order which he purported to make on 26 April, a conclusion against which the respondent to this appeal does not seek to argue.

21 However, the respondent takes the following stance in relation to the question of the appeal against sentence, which is encapsulated in the skeleton argument presented:

"However, it is the duty of the Court of Appeal not only to rectify the sentencing mistake made by the lower court but also to reach a proper sentence. If the sentence of 24 months were to be allowed to stand without further order, it has the effect of reducing the actual custodial period of D5's earlier sentence of 18 months to only slightly over 6 months. D5 will therefore enjoy an unduly light total sentence, particularly when compared with that for D6."

22 This is, in our judgment, not an attractive approach. The fact is that the order of 26 April was made in excess of the court's jurisdiction and must be set aside. That is the sentence or order against which, at the express encouragement of the single judge, this appeal was launched. One is then left with the sentence imposed by the judge on 20 March against which there is no complaint. What the respondent is asking this Court to do, or is suggesting this Court might do, therefore, is, by use of our power under section 83I(3) of the Criminal Procedure Ordinance, to increase the effect of the sentence made on 20 March. In the circumstances which we have described, it would be unjust to do so. Whilst the appellant benefits from an oversight of the judge on 20 March, principle dictates in this case that he should remain the beneficiary of that oversight.

23 Accordingly, we allow the appeal against sentence in the case of D5 to the extent that the order made on 26 April 2001 is set aside, leaving in tact the two-year sentence imposed, and taking effect, on 20 March 2001.