R. v. CHU CHI YAT and Others

IN THE COURT OF APPEAL

1989, No. 635 (s)
(Criminal)

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J U D G M E N T

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Penlington, J.A.:

1. On the 15th November in High Court Case No. 236 of 1988, Criminal Appeal No. 635 of 1989, Chu Chi Yat (D1) was convicted by Hooper, J. and a jury on a count of conspiracy to traffic in dangerous drugs in November 1987.

2. In Criminal Appeal No. 409 of 1990, also relating to High Court Case No. 236 of 1988, this Court refused D1's application for leave to appeal against conviction on two other related conspiracies to traffic in dangerous drugs committed in March and April 1988 with Shum Man Keung (D2), Chow Ming Fung (D3), Lam Wing Keung (D4), Yu Chuen (D5) and Tsoi Ho (D6). In doing so we set out in some detail the background to those conspiracies and there is no need to go into that again in any detail.

3. There was no doubt that the conspiracy in 1987 and those in 1988 were closely inter-linked. They concerned a FBI undercover agent called Fred Yau who came to Hong Kong on several occasions in order to discover persons who might supply him with substantial quantities of heroin for export to the United States of America. Another man also came with him called Simon Kwong who was a resident of the USA and was apparently well known as a substantial dealer in narcotics. He did not stand trial in Hong Kong but was extradited to the USA where he is now serving a long sentence of imprisonment. The charges were divided into the three conspiracies at the request of the appellants but there was no doubt that the 1987 one was a preliminary step leading to what happened in 1988. All appellants involved in the 1988 conspiracies were arrested at the same time and in very similar circumstances.

4. The first of the 1988 conspiracies involved D1, D2 and D3. The amount of heroin involved was some 9 kilogrammes. The second conspiracy involved D1, D4, D5 and D6 and there the amount involved was 6 kilogrammes. Sentences were passed by Ryan, J. in respect of the 1st accused of 20 years' imprisonment on each count to be served concurrently and also concurrently with the sentence relating to the 1987 conspiracy. D2 was sentenced to 18 years' imprisonment, D3 to 23 years' imprisonment, D4 to 18 years' imprisonment, D5 to 16 years' imprisonment and D6 to 23 years' imprisonment. Each of the applicants applies for leave to appeal against these sentences.

5. It has been settled by this Court in R. v. Chan Ka Wai Crim. App. 530 of 1988 (unreported) that the sentence for any offence should be in accordance with the practice prevailing at the time of the commission of that offence. It is therefore clear that both Hooper, J. and Ryan, J. should have taken Chan Chi Ming v. R. [1979] HKLR 491 as the guideline case relevant to sentence. The later cases of R. v. Cheng Yeung [1989] 2 HKLR 258 and R. v. Lau Tak Ming and Ors. [1990] 2 HKLR 370 were not decided until after the three offences with which we are now concerned had been committed.

6. In Chan Chi Ming it was held that sentences involving very substantial (above 1,000 grammes) of heroin should range from 8 to 12 years, save in cases of an unusually serious nature. We have no doubt that the background facts relating to the conspiracies now before us show that these were indeed cases of an unusually serious nature. Each involved very substantial amounts of almost pure no. 4 heroin which would have been worth many millions of dollars on the streets of New York or Los Angeles. They were very well planned and involved the international drug traffic. Hong Kong has a duty to the community of nations as well as to its own citizens to impose very substantial sentences in such matters. Nevertheless we are satisfied that the level of sentences here cannot be justified in accordance with the guidelines set out in Chan Chi Ming. Before that case the only person who had been sentenced to 25 years for conspiracy to traffic in dangerous drugs was Ng Sik Ho who was convicted of a massive conspiracy which took place over a very long period of time and involved 20 tons of opium and two tons of morphine. That was indeed an extremely large-scale conspiracy of which Ng was the ringleader. That certainly cannot be said of any of the applicants here and, in particular, D1.

7. Our attention has been drawn to the fact in Lau Tak Ming which is not dissimilar from those relating to the D1 and others. The quantity was very similar, some 5.8 kilogrammes, and he was described as a "rather shadowy middleman". We think D1 was more than that in relation to these conspiracies but there is no suggestion that he was a major supplier of heroin. However he was involved in each of these offences and although he could have been arrested after the first one and would not then have faced further charges he did continue to take part in these conspiracies to supply large quantities of heroin to Fred Yau.

8. D1 was not represented in respect of his appeal against sentence, legal aid having been refused. He said on his own behalf that he only played a small role and did not get any benefit. The prime mover was Simon Kwong who was extradited to the U.S.A. It was D1's defence for having taken part in the conspiracies that he did so out of duress in that he feared that his family in the U.S.A. would be at risk from Simon Kwong who, he said, was notorious as a drug dealer with a reputation for total ruthlessness. D1 had his parents and a brother and sister in the U.S.A. although his own wife and child are in China. While the jury clearly rejected that defence there was some evidence to support the contention that D1 was in considerable fear of Simon Kwong. The other factor, which Ryan, J. said he took into account and which is argued on behalf of all the applicants, is that there was a degree of entrapment in all these charges. The offences may well not have been committed at all if it had not been for Fred Yau appearing in Hong Kong purporting to be a purchaser of heroin and offering very substantial sums for delivery of it. While we agree that this may have been so, we do not think that the applicants were led into committing offences of a nature that they would not otherwise have been willing to commit. This factor is therefore one of minimal significance.

9. Neither Hooper, J. nor Ryan, J. stated which guideline they were adopting or what starting point they had taken for the sentences they imposed. We consider that, taking all the circumstances into account, a starting point in respect of the 1987 conspiracy relating to D1 would have been 16 years' imprisonment. There was some degree of duress to which he was undoubtedly subjected and we reduce that to one of 14 years. The application for leave to appeal against sentence in respect of Crim. App. 635 of 1989 is allowed and a sentence of 14 years' imprisonment substituted for that of 25 years.

10. In respect of Crim. App. 409 of 1990 much the same can be said in respect of D1. We think, again for the reasons already given, a sentence of 14 years' imprisonment should have been imposed in respect of each count to be served concurrently and also concurrently with that in Crim. App. 635 of 1989. The application for leave to appeal is allowed and the sentences reduced accordingly.

11. For D2 Mr. John Griffiths, Q.C., has submitted that he has no record of any previous dealing in dangerous drugs. He had played a peripheral role in the offences and no drugs were found on his person. He was a complete outsider and had been lured into the conspiracy. If he had not met the FBI agent, Fred Yau, he would in all probability never have committed the offence. He submits that D2 should not receive a more severe sentence than that imposed on Lau Tak Ming, i.e. 14 years' imprisonment. D2 has a common law wife, a relationship which had existed for some 10 years but which has now broken up. She has gone to the U.S.A. and his mother has returned to China. However in offences of this sort personal and family circumstances can play little part in mitigation. In passing sentence Ryan, J. said of D2 that he was a middleman who had been brought into the affair by D1 and another man called Chu, but that he had played a very necessary part in the operation, although not quite as important a role as by D1. We consider that, on the basis of the decision in Lau Tak Ming, a starting point should have been 14 years' imprisonment. The application for leave to appeal against sentence is granted and the sentence passed will be reduced to one of 12 years' imprisonment.

12. In regard to D3 Ryan, J. said that he was satisfied that he was a man who either supplied or was very closely associated with a supplier and was willing to meet any further demands that Yau might have had. Mr. Anthony Sedgwick, Q.C. who appears for him, submitted that a great deal of prejudicial and irrelevant evidence had been called at the trial, a fact which we commented on in our decision relative to conviction, and that it would have been difficult indeed for the trial judge not to have had this in mind when passing sentence. It had, for instance, been suggested that D3 was involved in the 1987 conspiracy with which he had not been charged. He said that this may have led the judge to believe that he was a habitual smuggler of drugs from China. He was only in the room in the Holiday Inn for some three minutes and there was some very doubtful evidence regarding D3's possession of a "melting point" machine, which in any event was not in good working order. There was no clear evidence that this machine was used in the narcotics operation. We consider that the starting point for sentence on D3 should have been one of 18 years' imprisonment and, taking into account the factors which we have already referred to, we allow the application and reduce that to one of 16 years.

13. In sentencing D4 Ryan, J. said he regarded him as a link between Yau, Chu and the supplier. He put him in the same category as D2. Mr. Griffiths, who also appears for D4, advanced much the same argument as he had in respect of D2, that he was only a middle man and should receive a sentence similar to that imposed in Lau Tak Ming. We agree, allow the application and substitute for the sentence of 18 years' imprisonment one of 12 years' imprisonment.

14. In sentencing D5 Ryan, J. said he was satisfied that he played the least important role in the affair and was the foki of a man called Ko Lo Wah, who was never arrested, and was a backup man for D6. For him Mr. Haynes submitted that he had clearly played the smallest role of all the participants and that the element entrapment was substantial. D5 ran a small "villa" which he did not own, and had been subjected to strong persuasion to participate in the conspiracy. The role which he played, for which he was promised $25,000, was carried out in an amateurish fashion. In all the circumstances, contended Mr. Haynes, he should have received a sentence less than that received by Lau Tak Ming. We consider that there is merit in this and that the proper starting point for sentence for D5 was 13 years' imprisonment. We allow the application and substitute for the sentence of 16 years' imprisonment one of 11 years.

15. Ryan, J. said that he regarded D6 as either a supplier or very closely associated in the supply of drugs which were made in respect of the second conspiracy. He had control of the key to the car in which the drugs were subsequently found and was also willing to meet further demands. Miss Sze Kin, who appeared for him here, adopted the submissions of the other applicants that the wrong guideline appears to have been used and that the sentence, even if D6 was heavily involved, was too severe. We consider that, taking the guidelines laid down in Chan Chi Ming, a starting point for D6 should have been 20 years. His application is allowed and the sentence of 23 years' imprisonment set aside and one of 18 years substituted.

16. Mr. Edward Laskey also appears on behalf of Chu Hang Chau who was convicted and sentenced together with D1 by Hooper, J. in November 1989 in relation to the 1987 conspiracy. He had also been sentenced to 25 years' imprisonment. Hooper, J. said he could not make any meaningful distinction between the role played by Chu and that played by D1. Mr. Laskey submits that it had always been conceded by the Crown that Chu was a middleman, not a supplier. He had given evidence and had been willing to do so again. He was very close to if not within the category of a "supergrass". If it had not been for his evidence there is little doubt that D3 would not have been convicted. We consider that the sentence passed was manifestly excessive and that a starting point should have been one of 18 years' imprisonment. He gave vital evidence for the prosecution. In the light of that we consider that we should allow his application for leave to appeal against sentence and substitute a sentence of 10 years' imprisonment.