HKSAR v. YEUNG KA SHING and Another

IN THE COURT OF APPEAL

1997, NO. 163
(Criminal)

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J U D G M E N T

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Saied, J. (giving the judgment of the court):

1. The Applicants were jointly charged in the District Court of trafficking dangerous drugs contrary to a Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap.134).

2. The 1st Applicant, Yeung Ka Shing, was convicted on his own plea of guilty, while the 2nd Applicant, Yeung Chun Kit was convicted after trial.

3. There was no dispute that the drug in question was a mixture weighing 56.02 grammes which contained 29.72 grammes of heroin hydrochloride. This was produced in court as Ex.P4. The trial judge, following the guidelines laid down in LAU Tak-ming [1990] 2 HKLR 370 correctly stated that the present case being within the band of 10 grammes to 50 grammes attracted a sentence within the range of five to eight years. He took his starting point of 6½ years and sentenced the 1st Applicant to 5 years, and the 2nd Applicant to 6½ years.

4. The 1st Applicant seeks leave to appeal against the sentence while the 2nd Applicant applies for leave to appeal against both his conviction and sentence.

5. The facts were simple. Two police officers posing as buyers met the 1st Applicant in a fast food shop in Tsuen Wan. The 1st Applicant led them to another fast food shop where the 2nd Applicant joined them. After discussion of the proposed transaction during which the 2nd Applicant said that no goods could be supplied before receipt of the purchase price, one of the police officers produced some marked money for their inspection. The party then travelled in a taxi to a place adjacent to an off-license betting shop opposite the Kwai Fong Estate.

6. The 1st Applicant then left the other three for a short while and on his return handed two packets of white powder, which were produced as Exhibit P2, to one of the police officers whereupon the other officer gave $16,000.00 (Exhibit P2) to the 2nd Applicant who then returned $400.00 (Exhibit P3) back to him. At this point, the two officers revealed their identity and, after cautioning them, arrested both of them.

7. The 2nd Applicant elected not to gave evidence.

8. The judge considered the entire evidence, including the 2nd Applicant's defence as came out during the cross-examination of the prosecution witnesses. In a nut-shell, that defence amounted to this : that he had come upon the 1st Applicant, who was an acquaintance, quite by chance. Upon learning that the others proposed to go to Kwai Fong by taxi and as he had to see a friend at McDonald fast food shop there, he went along with them in the same taxi. After alighting there, he went to look for his friend and failing to find him, he returned only to find that the 1st Applicant had been arrested. He denied being arrested but agreed to go to the police station believing it to be a formality because of his incidental involvement. He denied receiving any money or in anyway acting in concert with the 1st Applicant in the transaction.

9. The trial judge was satisfied as to the truth and accuracy of the prosecution witnesses and found that the prosecution case that the 1st and 2nd Applicant together sold the drugs in question to the two police officers had been proved beyond reasonable doubt and convicted the 2nd Applicant accordingly.

10. The 2nd Applicant submits that there were too many doubts in the prosecution case which he has listed in his written grounds of appeal as follows:

1) The police officers's evidence was different from the evidence given at the police station. By that, perhaps is meant that there were inconsistencies in their evidence as compared with their witness statements.

2) He had not seen the exhibits, and

3) He was not handcuffed but was invited to go to police station to assist in the investigations.

11. He has repeated practically all that in his address to us this afternoon. Quite clearly the issue for the trial judge was one of the credibility. He seems to have gone to great pains in considering the entire evidence including, as we have indicated already, such of the defence as was disclosed during the cross-examination of prosecution witnesses. He found the prosecution witnesses to be consistent on all material issues, the inconsistency whatever there was he said went only to the powers of recall of the police officers and no further. This was a view which was open to him to take. He had seen and heard the witnesses and was in a better position than us to adjudicate on what he believed and what he did not.

12. He found the defence to be a "fanciful and unbelievable attempt to distance D2 from a transaction I am satisfied he played a central and key role in." That too, after consideration of the evidence, was a conclusion which the trial judge could properly draw. He accepted the two officers as true and accurate.

13. We have considered the arguments of the 2nd Applicant. The exhibits had been produced in the trial court and it is quite clear that both Applicants were arrested at the scene. The judge had meticulously considered all the evidence that was adduced before him, including the inconsistencies in the prosecution case. We do not think that he erred in reaching the conclusion that he did and we are of the opinion that there was ample evidence to prove that both Applicants were in this transaction together.

14. We find no merit in the 2nd Applicant's application for leave to appeal against his conviction and it is dismissed.

15. Turning now to the sentence, we are of the opinion that the starting point of 6 1/2 was an entirely proper one within the applicable guidelines. With regard to the 1st Applicant, Mr. Lee, who appears for him, agrees that 6 1/2 which the trial judge took as his starting point was a proper starting point and no complaint is made of that. The issue, he said, was the extent of the discount that was allowed to the 1st Applicant.

16. It is now well established that a plea of guilty entitles an accused to a discount of up to 1/3. We accept that this is not an inviolable sentencing principle and as was said by Silke V.P. in R. v. Leung Tin-man Cr. App. No. 411 of 1990 :

"The quantum is a matter within the discretion of the trial judge and in exercising that discretion he would no doubt bear in mind the strength of the evidence and any other matter affecting either the offence or the offender in coming to the discount he thinks proper to give upon a plea of guilty."

17. The 1st Applicant's complaint is that he was allowed a reduction of only 1 1/2 years instead of two years and two months on the basis that he was caught red-handed. Having arrived at his starting point the trial judge had this to say :

"He is entitled to and will receive the benefit of a discount for his plea but in determining the extent of that, I pay heed to the fact that he was caught red-handed."

18. It is submitted on his behalf that in making that comment the judge was in error as the plea was "no inevitable plea".

19. The case of R. v. Lai Kwok-hung Cr. App. No. 691 of 1993 is cited in support. There, upon a plea of guilty to the offence of trafficking in "ice" and having taken his starting point of 11 years, the judge reduced it by 2 years saying:

"And having regard to the Defendant's plea and his admission at an at early stage but having regard also to the fact that his plea of guilty could be regarded as little more than a recognition of the inevitable, I think the maximum reduction reasonably possible would be a reduction of 2 years to 9 years' imprisonment."

20. Mortimer J.A. (as he then was), giving the judgment of the Court, while accepting that there is no such thing as an inevitable plea nor an inevitable conviction, said :

"If courts do not recoginse that an early plea is an expression of remorse and if those who plead guilty and save time and expense to the public are not given full credit there will be little benefit for an accused to plead guilty. For our part, we also recognize that a failure to give proper weight to a plea puts counsel in difficulty in the advice he has to give to those who may be inclined to be remorseful and accept their guilt."

The sentence was reduced to 7 years to reflect the plea that was tendered at an early stage.

21. We think that the important words there are "failure to give proper weight to a plea of guilty" which quite clearly involves exercise of the discretion, mention of which was made in the case of Leung Tin-man (Supra), which requires various matters such as those pointed out in that case to be borne in mind. It has been said repeatedly that no two cases are alike. The judge in considering the quantum of the sentence in respect of the 1st Applicant properly recognized that his plea entitled him to a discount and quite properly and in accordance with the practice proceeded to consider the factors which might affect his assessment of the discount. One such factor was provided in the case of A.G. v. Wong Kwok-wai Application for Review No. 16 of 1990, [1991] 2 HKLR 384, where Silke V.P. made this comment at 386 :

"We fully accept that pleas of guilty, particularly those made at the first opportunity, are to be actively encouraged. But as was said in R. v. Lee Wai-man Cr. App. No. 225 of 1990 the fact that the person is caught rehanded as was this respondent, takes something away from that point in mitigation."

22. Similarly in the case of R. v. Kwong Kai-hin Cr. App. No. 403 of 1995, which was not cited in argument, Bokhary J.A. had this to say :

"There are may be cases in which the fact that the man was caught redhanded would justify something less than a third but certainly not much less than a third. The present case is one of a man being caught with the dangerous drugs in his possession. Catching him redhanded is the only way in which to catch him. And it is notorious that if an accused alleges that the drugs were planted on him, a simple case can result in a fairly lengthy trial. In a case such as this, pretty much a one-third discount is appropriate across the board."

23. It is quite clear therefore that there always rests in the court the discretion as to the quantum and authority exists that in certain cases depending upon the circumstances generally, and of the accused in particular, being caught redhanded would take something away from that point in mitigation.

24. We are of the opinion that the exercise of his discretion by the judge was in no way defective or improper to call for any interference by us. The 1st Applicant's application for leave to appeal against sentence is accordingly refused.

25. The 2nd Applicant, who was then 19, was convicted after trial. He had 2 similar pervious convictions for which in August 1994 and May 1995, he had been committed to the training centre. The trial judge considered all the options that were upon and came to the conclusion rightly, in our opinion, that prison was the only appropriate sentence. He commented and we agree with him that the benefit of his young age was extinguished by his pervious history of narcotic offending.

26. We find that this sentence of 6½ years' imprisonment was neither excessive nor wrong in principle. His application for leave to appeal against sentence is also refused.