CHUI WAI-TAI and Others v. R.

IN THE COURT OF APPEAL

1991 No. 254
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The 1st and 2nd applicants, who appear in person, faced a count of conspiracy in which the third applicant Lau Kin-sang, who was not a defendant, was named as a co-conspirator. It alleged that between 1st April 1990 and 14th June 1990 in Hong Kong the three men had conspired together to traffick in a dangerous drug, namely salts of esters of morphine. They also faced a count of trafficking in which again the third applicant was not a defendant but was named as a co-offender. This count alleged that the three men unlawfully trafficked in a dangerous drug on 14th June 1990 at Man Kam To, namely 1,218.56 grammes of a mixture containing 1,118.50 grammes of salts of esters of morphine. Each pleaded not guilty to both counts. The Crown proceeded only with the first count on which the applicants, after trial before Gall J. and a jury, were found guilty. The 1st applicant was sentenced to 23 years on 9th May and the 2nd applicant was sentenced to 18 years on 10th June 1991. The second count was ordered to be left on the court file and not to be proceeded with without the leave of the court. Both applicants now appeal against both convictions and sentences.

3. The third applicant, who is represented by Mr. Hoosen, faced two separate counts - one of trafficking and one of conspiracy. In the first count the 1st applicant was charged as a co-conspirator and in the 2nd count, he was charged as a co-defendant. The particulars of the first count were that on 14th June 1990, at the Customs Import Cargo Examination Building, Man Kam To, the two men had trafficked in a dangerous drug, namely 1218.56 grammes of a mixture containing 1,118.50 grammes of salts of esters of morphine. The particulars of the second count were that the two men, on or about 2nd June 1990, in Hong Kong, conspired together and with other persons unknown, to traffick in dangerous drugs. The third applicant pleaded guilty to the 1st count and the 2nd was left on the court file. He was on 10th June 1991 sentenced to eleven and a half years imprisonment and was ordered to pay $76,758.40 to the Registrar, Supreme Court, under the Drug Trafficking Ordinance. He now appeals against that sentence.

4. The crucial evidence at the trial of the 1st and 2nd applicants was that given by the third applicant. As regards the 1st applicant, there was also cogent evidence against him coming from his cautioned statement in which he admitted the conspiracy and, as regards the 2nd applicant, there was evidence that his fingerprints were on plastic wrapping holding dangerous drugs being brought into Hong Kong by the third applicant from Dong Guan pursuant to the conspiracy.

5. The third applicant gave evidence that he had known the 1st applicant since 1980 and that in early April 1990 he had met the 2nd applicant through the 1st applicant and that he saw him on about 8 occasions thereafter. He said that on his third meeting with the applicants, he was asked if he would smuggle drugs from China to Hong Kong. Shortly thereafter he agreed to do so and from the end of April to mid-June, he did four pick-ups. On 13th June 1990, he said that he picked up a fifth package from the 2nd applicant and was stopped at Man Kam To when the package was found to contain over a kilo of salts of esters of morphine.

6. The 1st applicant in his cautioned statement, made on 15th June 1990, admitted that he had recruited the third applicant and said that there were six transactions. The trial judge instructed the jury that this was evidence capable of corroborating the evidence of the third applicant who was, of course, an accomplice. The 1st applicant in his evidence denied knowing the 2nd applicant and denied being a party to any conspiracy.

7. The evidence against the 2nd applicant came from the third applicant and from evidence that three fingerprints of the applicant were found on the resealable plastic bag and the yellow plastic bag which had been used to wrap the dangerous drugs. The trial judge instructed the jury that this evidence was capable of corroborating that of the accomplice. The 2nd applicant said that he did not meet the 1st applicant until after his arrest and that bad blood existed between him and the third applicant over gambling debts. He has told this court that his evidence was that his fingerprints may have got onto a yellow plastic bag during a scuffle he had after a chance encounter with the third applicant on 13th June 1990.

8. The 1st applicant in his Grounds of Appeal complains that the trial judge "affected the decision of the jury" by telling them that the 1st defendant's statement, when matched with the testimony given by the witness, could prove him guilty. What the trial judge in fact did was to tell the jury that the statement was evidence capable of corroborating the evidence of the accomplice. This was a proper direction as to which no complaint can be made. The 1st applicant also complains as to a failure to direct the jury as to the doubts in the police evidence. He here suggests that there were discrepancies between the evidence of Wu Man Tim DPC 19323 and Lau Yip Shing a Detective Senior Inspector. The complaint in this regard, when particularized, was that DPC 19323 had given evidence that, at the scene of the arrest, the 1st applicant had said that the drugs were not his and that Senior Inspector Lau, who had also been at the scene and would have been in a position to have heard what was said, had said that he had never heard any such thing said. It is correct that DPC said that, while he was on the staircase with the 1st applicant, after he had arrested him, he said to him "The drugs were not carried by me. I only earned $10,000 as introduction fees. It was Lau Kin Sang who said that he needed money for getting married and asked me to make the introduction." The DPC went on to say that Inspector Lau was behind him at that time but that he did not think he would have been able to hear what was said. He said he formed this view because later the inspector had asked him what had been said to him.

9. Inspector Lau when he came to give evidence said that as the party was leaving the premises where the arrest took place, he stood at the doorway telling the applicant's girl-friend that he would be taken back to police headquarters. He said that he was about 10 ft. from the 1st applicant and DPC 19323 and that he noticed the 1st applicant appear to speak to the DPC but that he was not able to hear what was said. He said that he subsequently asked the DPC about this matter. It is difficult to see how it can be suggested that there was any conflict between the evidence of the two police officers. Indeed their evidence seems to be entirely consistent.

10. The final matter of complaint by the 1st applicant is that the trial judge improperly interfered with cross-examination of DPC 19323 by his counsel. He submits that his counsel intended to cross-examine the DPC as to why he failed to record what was said on the staircase in his notebook at the time and that the trial judge stopped his counsel from pursuing that line of cross-examination. An examination of the record does not reveal any ground whatsoever for this complaint. The interventions by the judge during the cross-examination were both limited and proper.

11. The 2nd applicant's ground suggests that there was a failure by the judge to explain to the jury where his fingerprints were found. He submitted, on the first day of the hearing of this appeal, that the jury had raised a question about the position where his fingerprints were found on the polythene bag and that the trial judge had told the jury "not to worry about that, it is of no importance." He suggested that this exchange had taken place after the Crown's final address. There being nothing in the transcript to indicate that any such exchange had occurred we adjourned the matter and ordered further transcript. This transcript indicates that, immediately before the judge commenced his summing-up, the jury asked the following question:

"... want to clarify P, Q & M (which, I think, means K, Q and M) fingerprints' locations in resealable bag and Wellcome bags."

12. The judge answered the jury question as follows:

"Before I start my summing-up I will deal with questions, members of the jury. You are free to ask questions concerning these matters, and if during your deliberations you find that you are unable to proceed without further instruction from me, you may, through your Foreman, pass such questions as you wish answered through the usher to me and I will come into court and answer them. But with regard to questions of fact such as this, as I will remind you in my summing-up, if there are no facts before you, you cannot speculate, nor can you ask me for those facts. The Crown has put before you the evidence upon which it relies. If there is what you see a gap in that evidence, you either draw what inferences you logically can from the evidence or you find the evidence has no value. You cannot speculate, nor can you ask for further information or evidence. The evidence is closed. You may only deal with what you have. In this case there will be no further evidence which will assist you in finding the location on the bags where the prints were."

13. In his summing up the judge referred to this evidence as follows:

"Second piece of evidence capable of being corroboration is the finding of three fingerprints said to be those of the 2nd accused on the resealable plastic bag and on the yellow plastic bag, both of which were used to wrap the drugs found in the possession of Mr. Lau on 14 June 1990. You have heard the evidence from Mr. Cheung, the fingerprint expert. He demonstrated why he found the fingerprints from the 2nd accused's fingerprint form to be the same as the three prints found on two of the plastic bags used to wrap the drugs."

Nowhere in this direction did the trial judge give any indication that the evidence was "of no importance". He told the jury that they must act upon the evidence as they had it and could not speculate about matters which were not in evidence before them.

14. It is, however, of significance, that both in his answer to the jury and in his summing up, he indicated that those prints were found on both bags.

15. The 2nd applicant says that there was no evidence to this effect and that his evidence at trial was that he had touched only the yellow bag. When dealing with his evidence the judge said:

"One meeting ended with the 2nd accused beating Mr. Lau and in a second chance encounter on 13 June 1990 another scuffle occurred in which the 2nd accused placed his right hand in a yellow plastic bag dropped by Mr. Lau which he believed held a waist bag and money. His action, he said, resulted in the three fingerprints which the Crown say were found on two of the plastic bags in which the drugs found in Mr. Lau's possession were wrapped."

The trial judge is here telling the jury not only that fingerprints were found on both bags but also that the 2nd applicant admitted, in what he said were innocent circumstances, placing them there. If it was his evidence that he had only touched the yellow bag and that fingerprints were found only on the yellow bag this may have been a serious misdirection.

16. The direction of the trial judge in which he says that fingerprints were found on both bags appears to have relied upon the Agreed Facts admitted pursuant to s.65C of the Criminal Procedure Ordinance which stated:

"1. On 19th June 1990 as a result of chemical examination conducted on Exhibit 4 (a resealable plastic bag) and 5 (a yellow plastic bag) three fingerprints were detected and marked "K", "M" and "Q" for identification."

This Agreed Fact does not, however, indicate where the fingerprints were found nor whether they were found on only one bag or on both. This matter could be resolved if the markings "K", "M" and "Q" were on the photographs taken of the plastic bags which were also tendered at the trial. Unfortunately the photographs bear quite different identifying marks. It appears that the "K", "M" and "Q" were identifiers solely used by the fingerprint photographer. It was, therefore, impossible as the evidence stood, to say whether the fingerprints came from one or both of the bags Exh.4 and 5. If the defence of the applicant was that his fingerprints had been placed only upon the yellow plastic bag in the course of a scuffle, it would have been a serious misdirection to have told the jury, who were clearly concerned with this matter, that the applicant had given an explanation as to how his fingerprints were found on the two plastic bags. To resolve this matter we have obtained the evidence of the fingerprint expert and of the 2nd applicant neither of which were in the original bundle. The evidence of the fingerprint expert did nothing to resolve the matter as all he was given was the photographs marked "K", "M" and "Q". There was no evidence from the photographer who took pictures of the fingerprints found on the bag as he was not called, no doubt because of the Admitted Facts.

17. The matter was however resolved by the evidence of the applicant himself. In cross-examination the following exchange occurred:

"Q. Now you have heard the evidence of the Station Sergeant Cheung yesterday?

A. Yes.

Q. He has given his expert opinion to the court that having compared 3 fingerprints found on plastic wrappings which were used to wrap the drugs that was recovered from Ah Sang's lorry, those 3 fingerprints matched the fingerprints that you gave to the police on the fingerprint form after your arrest.

A. Yes.

Q. Do you have any explanation as to how those fingerprints of yours would have got on to the wrappings of the drugs?

A. Should be because of the touching on that occasion when I snatched the packet from Ah Sang.

Q. The packet that dropped out of his coat during the fight, do you mean?

A. Yes."

18. The applicant was there clearly saying that, however many bags were involved, his fingerprints must have been placed upon them when he "snatched the packet from Ah Sang". In the light of this evidence whether the fingerprints were found on one or more pieces of wrapping does not seem to be of any real significance.

19. His second complaint was that his lawyer did not cross-examine on all the questions which he had provided for him. He was, however, unable to say which matters the lawyer had failed to cross-examine upon. Conduct of the trial is for counsel and the suggestion that some unspecified matters were indicated to him which he did not see fit to pursue in cross-examination does not go nearly far enough to raise negligence in the conduct of the defence such as would call for our interference.

20. The 1st and 2nd applicants both also appeal against sentence. The 1st applicant simply stated that he considered that the sentence was excessive. The trial judge in sentencing said:

"I find that the quantity of drug, namely, 1.118 kg. of heroin was carried to Hong Kong on the 14th day of June, 1990 in pursuance of that conspiracy. I make it plain that that was the quantity of drug and not the quantity of mixture carried.

I accept the evidence at trial that on four previous occasions quantities of a drug said to be number 4, which I accept was number 4 heroin, of amounts somewhat similar to that found on the 14th were brought to Hong Kong in pursuance of the conspiracy. The agreement you made with others and to carry out was instrumental in bringing to Hong Kong considerable quantities of the pure drug heroin.

In quantities of drug in excess of 600 gr., it has been said that the starting point should be 20 years imprisonment. The range runs from 20 years to life. Those guidelines set down by the learned Lords of Appeal apply to offences of possession of dangerous drugs for the purpose of unlawful trafficking whereas this matter is conspiracy to actually traffic in the drug, a conspiracy which was taken into effect.

In all the circumstances and there being no perceptable mitigation you are sentenced to a term of 23 years imprisonment."

We are in entire agreement with the observations of the trial judge and are satisfied that there is nothing to indicate that the sentences were in any way excessive.

21. The 2nd applicant in his grounds of appeal against sentence asked for a reduction of sentence. He says he assisted the prosecution to successfully convict a defendant of murder. The trial judge dealt with the second and third applicant at the same time.

22. As to the third applicant's appeal against his sentence of eleven and a half years on the trafficking charge the trial judge said:

"Each of your counsel have been entirely accurate in saying the one mitigating factor that you have is that each of you have helped the Crown. And for that help you will receive substantial reductions in sentence. I hope that the message will go to others in the same situation as you that if you do come forward and give evidence for the Crown, you will receive a far lesser sentence than you otherwise might.

When I sentenced CHUI Wai-tai in this matter I found the starting point that I should adopt was 23 years' imprisonment, and that is the starting point I adopt for each of you. I must, differentiate between you in as much as LAU Kin-sang from the earliest moment when he was stopped by the police in his lorry cooperated with them and has cooperated up to this day. YIP Wai-sheung, on the other hand, did not commence his cooperation or did not demonstrate his cooperation until after conviction. It may be that he gave a statement in the matter which he gave evidence before conviction but he only demonstrated his intention to help after that point of time.

The cooperation of LAU Kin-sang enabled the Crown to stop an on-going importation of large quantities of very pure heroin from China to Hong Kong. As a result, and to encourage others to adopt the same stance that he has adopted, I propose giving him a 50% reduction, and he is sentenced to 11½ years' imprisonment."

It appears that the 2nd applicant gave a statement to the police with regard to the murder charge and then gave evidence for the Crown at the trial in accordance with that statement. The statement was made before the trial from whose verdict he is now appealing but sentencing was adjourned to await the outcome of the murder trial. A letter from the Director of Public Prosecutions was read in court when the judge was dealing with sentence. This was as follows:

"His evidence was in accordance with his earlier statements to the Police, and dealt with a confession to killing on the same morning as the alleged murder. That evidence was always important in the light of all the other evidence. In consequence of other evidence being ruled inadmissible, Yip's evidence became in fact vital evidence upon which the viability of the Crown case almost wholly depended.

Yip's statement to Police and the events from which the murder trial arose occurred before the events leading to the dangerous drugs case against him took place. In my respectful submission, Yip has made a significant contribution in another important matter, and I ask that you consider that fact in deciding his sentence on his dangerous drug conviction."

We bear in mind that the trial judge gave a substantial discount of 5 years. We are, nonetheless, disturbed by his observation that the second applicant did not demonstrate his cooperation until after conviction. The Crown conceded that, having given a statement, he at all times indicated that he was prepared to give evidence and that at the trial he did give evidence in accordance with the statement. We are satisfied that he must be given credit for having at all times demonstrated his willingness to cooperate. It was no fault of his that the murder trial was not called on until after he had been convicted on the dangerous drugs trial. It appears to us that had the trial judge adopted this view he would have been prepared to give a greater discount. We are satisfied that the second applicant's sentence should be varied to one of 17 years.

23. As to the third applicant, Mr. Hoosen pointed out that the starting of 23 years adopted by the trial judge was the same starting point as that adopted in relation to the 1st applicant and 2nd applicant who had been convicted of conspiracy. He submitted that the conspiracy was shown to have involved 5 acts of trafficking and that the third applicant's offence only involved a single act of trafficking. He submitted that he was entitled to feel aggrieved as the offences had wrongly been equated in seriousness. He submits that the starting point should have been less than 23 years and that the lesser period should then have been halved to arrive at the proper sentence and that the failure to do so can properly be said to entitle him to have a justifiable sense of grievance. We cannot agree. In the recent case of The Queen v. Chan Wai Chiu and Others Criminal Appeal No.144 of 1992 we held that where a defendant receives a proper but lesser sentence than another he cannot be held to have a justifiable sense of grievance because the other has been more leniently dealt with than he should have been. We are satisfied that 23 years was a proper starting point in the third applicant's case, given the quantity of drugs involved, and that it was wrong to adopt that starting point for the 1st and 2nd applicants who were, consequently, more leniently dealt with than they should have been. As the third applicant received a proper sentence, which was less than that imposed on the other two, he cannot be held to have a justifiable sense of grievance. We are satisfied that he was in the same position as was the applicant in Chan Wai-chiu and that his application must be refused.