HKSAR v. TONG KWAN KWAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 247
(Criminal)

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J U D G M E N T

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

1. The Applicant was convicted after trial in the District Court before Judge Davies of trafficking in dangerous drugs namely 19.60 grammes of a mixture containing 17.94 grammes of heroin hydrochloride. Initially the Applicant had wanted to plead guilty to possession of these dangerous drugs but the prosecution had not agreed to this. She was sentenced to 4 years 3 months' imprisonment. She now seeks leave to appeal against her conviction and sentence.

2. A party of police officers saw the Applicant with a man, who it later transpired was her common law husband near the intersection of Soy Street and Shanghai Street in Kowloon. The Applicant was according to the officers acting suspiciously. They went across and intercepted them. The dangerous drugs referred to in the charge were found on the Applicant. Nothing was found on her companion. The police took the couple back to the flat they occupied and found in it a quantity of caffeine, two hammers and two pairs of scissors with traces of heroin on them and eighty-four small plastic bags identical to the one containing the dangerous drugs which were found and $137,700. The companion claimed that these monies were his in relation to his business as a loan shark.

3. The Applicant gave evidence at her trial. She said that she and her husband were drug addicts. On the evening in question they had received a telephone call from their regular supplier. Arrangements were made for them to receive a delivery of dangerous drugs in the park nearby. They went and collected the dangerous drugs which had cost $4,500. They then decided to go to Portland Street to purchase some food. They had been intercepted on that journey.

4. The Judge weighed and considered all of the evidence. He attached particular weight to the fact that according to the Applicant's testimony she and her partner were walking in a different direction to their home after purchasing a substantial quantity of dangerous drugs. Not surprisingly he considered this to be unlikely. When this evidence is taken in conjunction with the evidence concerning the hammers, the caffeine, the scissors and the eighty-four bags found in the flat there was more than enough evidence to enable the Judge to infer that the Applicant was guilty as charged. This was virtually inevitable once the Applicant's testimony was rejected by the Judge.

5. There is one ground of appeal against conviction. It is the Judge misdirected himself as to the effect of the circumstantial evidence in drawing the conclusion that the Applicant was trafficking in dangerous drugs. This ground cannot withstand any serious scrutiny. It is merely an attempt to retry the case before the Court of Appeal. Needless to say this is not a permissible exercise. The application is without merit and is dismissed.

Sentence

6. It is not entirely clear how the Judge arrived at what he describes as his starting point of 5 years' imprisonment. He correctly referred to the 5 to 8 years band in R. v. Lau Tak-ming [1990] 2 HKLR 370. As the Applicant did not plead guilty to trafficking she was not entitled to the usual 1/3 discount. The starting point should have been somewhere in the region of 6 years. There was however a further matter, which should not be referred to in open court, which constituted strong mitigation. For this the Judge gave the Applicant a reduction of 9 months.

7. It would appear to us that the Judge was generous in adopting 5 years as his starting point. The matter which should have been dealt with in the chambers is also a matter upon which no complaint can be made. The discount which was given was in conformity with those normally given in this respect and this application is also dismissed.