R v. NG MUK KAM

IN THE COURT OF APPEAL

1993, No.685
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant NG Muk-kam, who was the 2nd defendant at trial, faced one count of trafficking in a dangerous drug. It was particularized that he and one WU King-ying, the 1st defendant at trial, on 23rd June 1992 at Tin Wan Praya, Aberdeen, in Hong Kong, together with Ho Ying-ki, unlawfully trafficked in a dangerous drug, namely 339,525.75 grammes of a mixture containing 306,190.63 grammes of salts of esters of morphine. He was found guilty after trial before Stuart-Moore J. and a jury and was sentenced to imprisonment for life. The 1st defendant at trail was acquitted. The applicant now appeals against his conviction and sentence and against an order for confiscation of $150,000 which was found in a car which he was driving at the time of the offence.

2. The facts were straightforward. Just before 3 o'clock in the morning of 23rd June 1992, police, who had been keeping an area at Aberdeen under surveillance, saw a sampan come ashore from which bags were unloaded. Shortly before this a white van had U-turned and the back door had opened and a Mercedes, driven by the applicant, had arrived at the scene. What was unloaded were 19 large bags. These contained the dangerous drugs the subject of the charge. The police then made their move towards the scene and arrested those who had been participating in the unloading and arrested the applicant at his car. Several of the men including the applicant were found to be equipped with mobile telephones.

3. That was the evidence as to arrest. Evidence also came from an accomplice. The accomplice said that on 22nd June, i.e. the day before the offence, a request had come to him from the applicant between 8 and 10 in the morning. He said that he went to the office and saw the applicant who asked him to move certain things that morning. He asked what the items to be smuggled were and the applicant replied "dangerous drugs". He said that initially he refused to help but then the applicant said he could not find any persons to help and asked him to do a favour for once. He said that he thought it over and then agreed and that, having borrowed a van, he met the applicant by appointment at about 2 o'clock in the morning. He said that, out of the earshot of other persons, the applicant told him to go and move things a while later. He asked whether or not a vehicle was needed as he had a vehicle and that the applicant said if there was a vehicle drive it there as well. It was in consequence of those conversations that he went to the scene and assisted in the unloading of the drugs. So much for the evidence of the accomplice. No evidence was called for the defence.

4. The application for leave to appeal against conviction relies in the outcome upon one ground only. That ground reads as follows:

"The learned trial judge, when directing the jury as to how inference should be drawn as to whether the Applicant had participated in trafficking in dangerous drugs, erred in his failure to direct them sufficiently or at all that:-

(a) If there are more than one possible inference to be drawn from the circumstantial evidence and that one of them being innocent, they must not draw an inference adverse to the appellant.

(b) If there are more than one possible inference to be drawn from the circumstantial evidence, they must not draw an inference adverse to the Appellant unless such inference is the only and irresistible inference to be drawn from all the circumstances of the case."

The trial judge said when directing as to inference:

"In the course of your examination of the facts, you are quite entitled to decide, if you feel that you safely can, what inferences you can draw from the evidence that you accept and are sure about. One counsel this morning, I forget who it was and it doesn't matter who, said you can't actually physically look into what a person is thinking by looking into their mind; of course you can't. You judge that from the actions of people very often. And when you look at the evidence in this case you are perfectly entitled, if you feel that you safely can, to draw inferences from the evidence that you have been given, but at the same time you are not permitted to speculate nor are you, of course, permitted to guess because guesswork is not a safe basis on which to form a sure judgment.

Can I just put it this way because I think it incapsulates what I have just been saying. When you have decided what evidence is true and what evidence is also accurate, it's for you to decide what conclusions you can draw from it."(Emphasis supplied.)

The judge dealt with the onus and standard of proof as follows:

Let's come to the fundamental principle of our law. It's one that you have all heard before and it's one that I am going to ask you to keep in the forefront of your minds as you deliberate in this case. The prosecution, having brought the charge, is the side in this case that sets the whole of the proceeding in motion. It accuses each defendant and therefore it is for the prosecution to prove that which it charges against the defendants. It is at no stage in this trial over for the defendants to prove their innocence. From beginning to end, the prosecution has to establish guilt if you're to find either or both of them guilty.

The standard of proof in a criminal trial is a very high standard and you have to be sure beyond reasonable doubt if you are to convict either or both of these defendants. The question for you to determine when you are in your room in deciding what happened in this case, the question for you to determine is really just this, 'In the case of the 1st defendant, Mr. WU King-ying, am I sure that he is guilty as charged?' If you are sure, you convict him. If you are not sure, you acquit him. It is exactly the same with NG Muk-kam, as far as he is concerned, 'Am I sure', you ask yourselves, 'that he is guilty as charged?' And if you are not sure, you acquit him. Only if you are sure do you convict him on this charge."

5. It is submitted by Mr. Griffiths Q.C., with him Mr. Kwok, who appears for the applicant, that the direction as to inference was inadequate and unsafe. He relied when making that submission on Kwan Ping-bong & Another v. The Queen (1979) AC 609. Particular reliance was placed on a passage in the opinion of the Privy Council delivered by Lord Diplock at p.615

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged - and the proof must be 'beyond all reasonable doubt' which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

It is submitted that the jury should have been told in terms that the inference must be a compelling one which no reasonable man could fail to have drawn from the facts directly proved, that such a direction was particularly required in the circumstances of this case as, leaving aside the suspect accomplice evidence, which the jury may well have rejected, the conviction rested squarely upon an inference of knowledge drawn from the circumstances which surrounded the arrest of the applicant; that the failure to give the direction was compounded by the fact that the trial judge gave a proper direction when dealing with the 1st defendant. He there said:

"You could only convict him on the evidence of circumstance if you felt it proper to draw the inference which is so overwhelming that you are sure of it, that he could only have been of a knowledge that these were drugs."

As to the last submission it is suggested that the jury might have been led to believe that a different standard applied to D1 than that which should be applied to the applicant.

6. In our view there is considerable justification for suggesting that there was no real difference between the two directions as in both the jury were told that they must be sure of guilt before convicting. Even if that not be so we are satisfied that no criticism could properly be levelled at the summing up as long as the judge, as he did in the present case, gave clear instructions to the jury as to the burden and the standard of proof. We have no hesitation in following the plain statement to this effect in The Queen v. Pang Shun-yee (1988) 2 HKLR 146, which is a decision has been consistently followed in Hong Kong. Silke V.-P. in that case at p.157, cited from the judgment of Lord Morris in McGreevy v. The D.P.P. (1973) 1 WLR 276 where he said:

"At a criminal trial with a jury in which the case against the accused depended wholly or substantially on circumstantial evidence there was no duty on the trial judge to give the jury a special direction telling them in express terms that before they could find the accused they had to be satisfied, not only that the circumstances were consistent that his having committed the crime but also that the facts proved were such as to be inconsistent with any other reasonable conclusion; it was sufficient for him to direct the jury that they had to be satisfied of the guilt of the accused beyond reasonable doubt."

Silke, V.-P. then went on:

"Here the trial judge had been at pains to make clear to the jury at various stages in the summing up that they must find the facts proved beyond a reasonable doubt before they could come to conviction. He reminded them, as I have already indicated, of this immediately before they retired. There was little, if any, circumstantial evidence. The Crown's evidence, if believed, is direct. Given the very clear and explicit directions which they received as to the burden of standard of proof and a jury must be given credit for some intelligence, in our judgment the directions given satisfied Lord Diplock's statement of the law."

The statement to which Silke V.-P. was referring was in Kwan Ping-bong's case to which reference has been made above.

7. We have no doubt that, in the present case, the trial judge's directions made it plain to the jury that they must not act upon any inference unless they were sure of it and that his directions satisfied, as did those in Pang's case, Lord Diplock's statement of the law. The application for leave to appeal against conviction is therefore dismissed.

8. We turn now to the application to appeal against sentence. The grounds are that:

"(1) The learned judge erred in law in not informing Counsel for Appellant that he had life imprisonment in mind and invite submissions before sentence is passed

(2) It is wrong in principle for the learned judge to pass life imprisonment in the circumstances of the case."

The first ground relied upon the case of Ron Robert Morgan (1987) Crim. App. Rep(S) at 201. We need read only from the headnote which states:

"A judge should not impose a discretionary life sentence without first informing counsel for the defendant what he has in mind and inviting submissions on the matter.

This statement of law has been accepted in Hong Kong. It is suggested that the trial judge gave no such indication. However, a reading of the record shows that the trial judge may very well have considered that he did give a sufficient indication as, before counsel had addressed him, he said:

"Very well. Mr. Oderberg, I do not know whether you would like time to consider it, but you will, of course, bear in mind the maximum in such a case as this. You may wish to take time over what you say in mitigation. I will be quite content if you would like to mitigate later."

It seems to us that this must have been intended to be an indication that the judge was considering the maximum sentence - one of life. It was not, however, on our reading of the record, so understood by Mr. Oderberg. In our view the judge should, once it was became clear that Mr. Oderberg did not understand that such an indication had been given, have repeated it in more explicit terms. He did not. That being so we are satisfied that we are now called upon to make our own determination as to the propriety of the sentence.

9. Mr. Griffiths refers us to the case of Timothy Augustin O'Dwyer (1988) 86 Crim.App.R. at 313. We need read only from the headnote which states:

"The three main criteria for imposing a sentence of life imprisonment were that:

(1) The offence or offences were in themselves grave enough to require a very long sentence,

(2) Where it appeared from the nature of the offences or from the defendant's history that he was a person of unstable character likely to commit such offences in future, and

(3) if the offences were committed the consequences to others might be specially injurious, as in the case of sexual offences or crimes of violence."

Mr. Griffiths also referred to the case of Greenmail Singh Basra (1989) 11 Crim.App.R.(S) at 527 and to the judge of Lord Lane at 529 where he said:

"In general it should be said that a life sentence where it is other than mandatory, as was the case here, is to be reserved for case where the defendant is someone in respect of whom there are some relevant feature which cannot be determined at the time when the judge is passing the sentence. The usual example of that will be some mental condition which affects the degree of risk which the release of the defendant into the community will present. Where there is no such imponderable feature, and where the question is simply that if punishment and the necessity to deter others, those matters can be gauged at the time of sentence, and so as a rule an indeterminate sentence will be inappropriate."

Mr. Griffiths argues that dangerous drugs offences do not involve mental unstablity or a likelihood that a similar offence will be committed in the future and will occasion special injury to others and that a sentence of life imprisonment is not appropriate for such offences.

10. Mr. Saw, who appears for the Crown, does not contest that the criteria to which we have just referred, (The Queen v. SO Ching-kwan (1993) 1 HKLR 157) have particular application to sexual cases and offences involving violence. He submits, however, that the most serious drug offences, which involve huge quantities, are in a category of their own which category is also properly dealt with by imposing a sentence of imprisonment for life. His arguments are persuasive but we do not find it necessary to make any finding in that regard as we are satisfied that the proven involvement of this offender was not such as to place him in the category of most serious offender. We would only be called upon to consider whether a life imprisonment should be imposed if he was placed in that category. We are satisfied that he cannot be dealt as an offender in the most serious category because on the facts he was not shown to be either the mastermind or the chief financier. He was, however, clearly involved in a major way in the handling of this very large quantity of dangerous drugs. The seizure was enormous. The court below was told that it was the fifth largest seizure to that time in the world. It had a wholesale value of about $46,000,000 and a street value of about $146,000,000. It represented many life times of honest earnings and many more life times of misery and despair for addicts and their families. While we are satisfied that the sentence of life imprisonment was not a proper one we are also satisfied that the offence called for a very substantial sentence.

11. The application for leave to appeal against sentence is allowed. We treat the hearing of the application as the hearing of the appeal and order that the sentence of life be varied to one of 35 years.

12. We turn now to the final matter which was the appeal against a confiscation order of $150,000.

13. At the conclusion of the trial Mr. Loftus for the Crown made the usual application to the court to deal with the exhibits. Mr. Griffiths submits that it is not clear under which section of which Ordinance that application was brought. We have no doubt that it was brought under the sections of the Criminal Procedure Ordinance which are headed "Disposal of Property". The court ruled, with regard to the $155,000 found in the glove box of the Mercedes being driven by the applicant as follows:

"So far as the sum of money, HK$150,000, is concerned, I propose to make a confiscation order. The reason for it is that I have drawn an inference that this money was to be used in the course of the trafficking taking place having regard to the circumstances of its finding and having regard to what this defendant was doing at the time when it was found. Trafficking in millions of dollars' worth of heroin as an organizer, it is quite clear that he would have to have had a large sum of money available to him to have got the help that he needed."

The court was there plainly exercising its power under s.102(1)(c) of the Criminal Procedure Ordinance which reads as follows:

"Where it appears to a court that any property in the possession of the court, the police or the Customs & Excise Service has been used in the commission of an offence then whether or not the offence was committed of appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section."

The section goes on to provide that the court may order that such property be forfeited.

14. We also in this regard refer for completeness s.106 which provides:

"If on the apprehension of any person charged with an indictable offence any money is taken from him the court may in his discretion in case of the conviction of such person order such money or any part thereof to be applied to the payment of any cost or costs in compensation directed to be paid by such person."

Given the questions which the trial judge directed towards Mr. Loftus regarding the quantum of the prosecution's cost, it seems clear that he was considering, should it have been necessary, exercising his power under that section. In the event it was not necessary.

15. It is submitted by Mr. Griffiths that the trial judge was wrong to order as he did as this money was not money used in the commission of an offence. There is no merit in that submission. The trial judge was satisfied from the circumstances that:

"Trafficking in millions of dollars' worth of heroin as an organizer, it is quite clear that he would have to have had a large sum of money available to him to have got the help that he needed."

He was satisfied that the only reason the applicant was carrying this money with him on the drug trafficking operation was to ensure that, whatever eventuality he met, he had ready money sufficient to enable him to carry it through. The facts speak for themselves. Other possibilities are fanciful. The conclusion to which the judge properly came was that the money was being used in the commission of an offence. Indeed, in the circumstances it was the only sensible one to which a court could have come.

16. The appeal against the confiscation order must, therefore, be dismissed.