DOU MINH v. R.

IN THE COURT OF APPEAL

1993, No. 270
(Criminal)

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. On 17th May 1993 the applicant was convicted by Wong J sitting with a jury of trafficking in dangerous drugs. The charge was that on 21st March 1992 at the Hong Kong International Airport he unlawfully trafficked in dangerous drugs, namely 1,400.74 grammes of a mixture containing 1,179.36 gramtues of salts of esters of morphine. He was sentenced to imprisonment for 18 years.

2. The applicant is a resident of Taiwan, China, but he arrived in Hong Kong from Bangkok. He was observed by Customs Officers in the Airport to move from one baggage carousel to another, looking about him. One Senior Custorns Officer happened to go to a toilet to wash his hands. In a large mirror above him, he noticed the reflection of a man moving inside one of the two toilet compartments. When he finished he turned round and saw the shadow of the back of the man leaving that compartment and going out of the toilet. He noticed he was wearing a dark-blue or black jacket. The Customs Officer went into the compartment to get some tissue paper to wipe his hands and on the floor he saw four packets or blocks of substance which he suspected to be dangerous drugs. He immediately alerted his superiors and colleagues. Subsequently those four blocks were found to contain the drugs which are specified in the charge. Later the applicant was detained awaiting for a taxi outside the Airport. He was wearing a deep blue jacket. He was brought back into the Airport.

3. Later that might and the next day he made a statement to the officers, in two parts. The first commenced at about 10 o'clock that night, and went on till about 1.35 in the morning when it was suspended because he was tired. The second part was taken from him at between 3 o'clock and 6.30 in the afternoon of 22nd March. In it he made a complete confession to bringing in the drugs.

4. The judge in summing up the matter to the jury made it clear that the evidence in the case came from three sources; first, the observation at the Airport by the Customs Officers; second, the statements he made; and third, the evidence he gave in the witness box. The-judge made it very plain that the essential evidence against him was the confession. He recognised that the other evidence of the applicant's movements in the Airport and of a man with similar dark blue clothing being seen to leave the toilet was no evidence against him. He very specifically said this:

"The confession, exhibit P20, is certainly a vital piece of evidence in this trial, without which it would not be right to convict the applicant on the rest of the evidence."

The jury could not have failed to realise how vital and essential that statement was. The judge therefore went into some detail about the taking of the statement. He reminded the jury how it had been taken in two parts. In doing so, he again directed the jury to look at it carefully in the course of their deliberation. He reminded them of the two officers concerned with the first pat of the statement, a Senior Customs Officer, another who acted as an interpreter and a third who acted as a guard. He mentioned how recording was suspended at 1.35 because the applicant indicated that he was tired and wanted to rest. He similarly dealt fully with the second part of the statement taken in the afternoon, again, mentioning the Customs Officers and that one was a lady. He also reminded the jury that the officers denied that any violence, threat, inducement or oppression of any kind took place. Then he warned the jury that they had to be satisfied that the applicant actually made the statement, that what he said was true, and that in doing so, they should have regard to all the circumstances.

5. The judge also put to the jury the applicant's evidence. Not only that he denied bringing in the drugs, but also his allegation of ill treatment by the Customs Officers, which he recounted in some detail. It can be seen therefore that the judge put the evidence including that of the applicant fully to the jury. The applicant in his written notice of application for leave against conviction, gave the single ground "that there are faults in the legal procedure upon taking oral statement from me also the evidence to prove that the exhibits is incomprehensible and insufficient". Before us he has not enlarged upon those grounds, contending that he was not able to do so without an entire transcript. However, as he has not sought to deny, he has long had a copy of the very full summing-up. We have carefully considered the summing-up and can find nothing wrong with it. The matter was fully and fairly put to the jury which found the applicant guilty. There is clearly no merit in the ground he relies upon for leave to appeal. His application for leave to appeal against conviction is accordingly refused.

6. We turn now to his application for leave to appeal against sentence. This aspect of the case was also carefully addressed by the judge. He recounted the several considerations, mostly of a humanitarian nature, which the applicant his raised again before us. These bear upon the age of the applicant, his deteriorating physical condition; his absence from his home country and his family bearing heavily upon him; and his difficulty in communicating in the different dialect spoken locally. He says he played a minor role and was used by others. He asks the Court to take a humanitarian view and not only to have regard to the law.

7. At the end of the day this was clearly a very serious offence. It involved a very large quantity of narcotic, I repeat 1,179 grammes. The approved tariff for that quantity in Lau Tak-ming [1990]2 HKLR 370, comes in above the 5th category of between 400 and 600 grammes which attracts a penalty of 15 to 20 years. 1,179 grammes is almost double the upper limit of 600 grammes. The judge obviously gave full consideration to the humanitarian aspects in sentencing the applicant to only 18 years. We can see no reason for interfering with that sentence. The application for leave to appeal against sentence is also refused.