The Queen v. Law Chi-keung and Another

CACC001615/1983

BETWEEN:

Coram: Roberts, C.J., McMullin, V.P. & Silke,J.A.

Date: 29th February, 1984.

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JUDGMENT

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Roberts, C.J.:

1. LAW Chi-keung (D.1) and LAW Chi-shing (D.2) were each charged on two counts, the first with doing an act preparatory to or for the purpose of manufacturing a dangerous drug, and the second with trafficking in an unknown quantity of a dangerous drug.

2. Both defendants were acquitted on the charge of doing an act preparatory and convicted on the charge of trafficking in a dangerous drug. Each was sentenced to eight years' imprisonment.

3. Both have applied for leave to appeal against both conviction and sentence.

Outline of admitted facts

4. There was an unusually detailed statement of agreed facts, which was put before the judge and jury at the trial. This can be summarized as follows, omitting those parts of the statement which dealt only with the first charge, of which both defendants were acquitted.

5. At about 1405 hours on 23rd April, 1982 D.1 was seen by customs officers to drive a Mazda car, CL 6872 to Fei Fung House, Choi Wan Estate, where he parked it. He and D.2 alighted from the vehicle, D.2 removing from its boot a large brown suitcase. The two defendants carried the brown suitcase into Fei Fung House, where they went to Room 1310, to which they were admitted by YEUNG Chi-hung.

6. At 1430, both defendants emerged from Room 1310. D.2 was carrying a brown and white paper bag in his hand. They took the lift to the ground floor and walked to the Mazda, D.2 still carrying the bag. They re-boarded the car and D.1 drove it away from Choi Wan Estate.

7. After a call at Tsz Wan Shan, D.1 drove the Mazda to Stirling Road, near Prince Edward Road in Kowloon City. At about 1510 he parked it near the entrance to a construction site. A Mitsubishi car CU 2652 was parked nearby. In it were YIP Kai-ming and WONG Hang-tai. D.1 walked from the Mazda to CU 2652, where he spoke to WONG Hang-tai. Wong alighted from CU 2652 and walked to the entrance of the construction site, where he and D.1 had a conversation.

8. At 1540 the Mazda driven by D.1, with D.2 aboard, left Stirling Road in the direction of Argyle Street. CU 2652 with YIP and WONG aboard went to Prince Edward Road. Here YIP Kai-ming got out, carrying a brown and white paper bag, and entered 369 Prince Edward Road, CU 2652 being driven away in the direction of Mongkok by WONG.

9. At 1630, CU 2652, driven by WONG, returned to Stirling Road, where it was parked. WONG entered 369 Prince Edward Road.

10. At 1705 YIP and WONG emerged from 369 Prince Edward Road, YIP carrying a yellow plastic bag in his hand. They were intercepted and arrested by customs officers.

11. At 1840 other customs officers conducted a raid on Room 1310, Fei Fung House, where they arrested the occupants, including YEUNG Chi-hung.

Established facts

12. In addition to these agreed facts, various other matters were clearly established by the evidence.

13. When the customs officers entered 369 Prince Edward Road, they discovered therein the same brown and white bag as that which had earlier been seen in the possession of the two defendants. It contained a number of small packets of a mixture containing heroin and weighing approximately 480 grammes.

14. At 1804 hours, other customs officers, on entering Room 1310 Fei Fung House, found therein a large quantity of drug-making equipment and material and a substantial quantity of heroin.

15. It was also established by the evidence of D.1, who gave evidence (though D.2 did not) that the brown and white paper bag had been taken by D.2, at the request of YEUNG, and handed by D.2 to WONG at the construction site.

Summary of Crown case

16. This was not a case in which the defendants were caught in actual possession of dangerous drugs. The Crown case relied upon the drawing of an inference from the facts which were established.

17. In essence, the Crown case may be summarized as follows -

(a)	The two defendants called at-premises which were being used as a heroin factory, taking with them a large suitcase. Thus they could hardly be called "casual callers".
(b)	The two defendants left the premises during the afternoon, carrying with them a brown and white paper bag.
(c)	This bag was handed by one of them to WONG.
(d)	WONG and YIP drove to 369 Prince Edward Road, where YIP took the bag into 369 Prince Edward Road.
(e)	Rather over an hour later YIP and WONG left No. 369. YIP was carrying a yellow plastic bag. He was arrested and heroin was found in it.
(f)	Customs officers entered 369 Prince Edward Road, shortly after WONG and YIP had left the premises and found the same brown and white paper bag as that which the defendants had had in their possession about two hours before. Inside the bag were packets containing a mixture of salts of esters of morphine, weighing 480 grammes in total.

18. Thus the Crown's case was that the defendants were taking part in a trafficking operation. Fei Fung House was a heroin factory. The two defendants were seen to take from it a paper bag and hand it to other persons who took it to other premises in which the same bag containing heroin, was found.

19. D.1 gave evidence to the effect that he had taken the paper bag innocently from Fei Fung House to the construction site, without any knowledge on his part of the contents. Clearly the jury must have rejected his story. D.2 gave no evidence.

No case to answer

20. The first main ground of appeal was that, at the close of the prosecution case, the judge was wrong in law in failing to hold that the defendants had a case to answer.

21. The case for the Crown, as it was at the close of the prosecution evidence, according to counsel for the applicants, was set out in detail in the substituted grounds of appeal which we permitted to be argued.

22. Although the Crown did not concede that the grounds contained a full summary of the evidence subsisting against the defendants at that stage of the trial, we nevertheless had no difficulty at all in deciding that, on the assumption that it properly summarized the Crown's case at that stage, there was more than sufficient evidence to justify the judge in ruling that each defendant had a case to answer.

Miscellaneous criticisms of summing-up

1.      It was suggested that the judge did not refer the jury in his summing-up to any of the evidence relating to the transportation or handling of the paper bag by the defendants.

23. However, the judge did refer to the evidence of YEUNG, and of D.1, as to how it was that the defendants, on their version of events, came to be in possession of the bag.

24. It must also be remembered that the agreed facts, which covered much of the history of this matter, were with the jury when they retired to consider their verdict. We see no substance in this ground.

2.      It was said that the judge failed to tell the jury that the evidence that the content of the brown and white bag was heroin was circumstantial in character.

25. In our view it was not necessary for the judge to point out to them that the evidence was of such a nature. It must not be assumed that juries are ignorant of the difference between direct and circumstantial evidence and McGreevy v. D.P.P. ⁽¹⁾ makes it clear that if a summing-up is adequate as to the general burden of proof, there is no need for a special direction as to circumstantial evidence.

26. The important question, therefore, is whether the judge directed the jury clearly that, before they could convict the defendant, they must be satisfied that the paper bag contained heroin when it was taken from Fei Fung House by the two defendants. This the judge did.

3.     The summing-up was criticized because the judge did not tell the jury that the inference that there was heroin in the brown and white paper bag at the time when it was in the possession of the defendants must be a compelling one and that no reasonable man could fail to draw that inference' from the direct fact proved.

27. The judge drew the attention of the jury on several occasions to the burden of proof which lay upon the Crown -

(a)     At page 3H, he said -

"Before you convict a defendant of any charge you must find his guilt to have been proved beyond reasonable doubt."

(b)     At page 9K, he says-

"To convict a defendant on this charge, you would have to find it proven that when he played his part in the transportation of the paper bag from Fei Fung House to handing it over in Stirling Road, you would have to find it proven that at that time the bag contained salts of esters of morphine, that is, heroin, and that the particular defendant whose case you are considering, at that time knew it contained that substance."

In R. v. Kwan Ping-bong ⁽²⁾ Lord Diplock observed -

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (arid the only one) that no reasonable man could fail to draw from the direct facts proved."

28. Lord Diplock does not, however, suggest that it is necessary for the case to be put before the jury in that manner. In this instance, the judge did not direct the jury that, before they could convict, the inference of possession by the defendants must be a 'compelling' one in the sense of that word used by Lord Diplock, but he did make it abundantly clear to them that they had to be satisfied beyond reasonable doubt that, the bag did contain heroin at the time when it was in the possession of the defendants and that they knew of its contents. He has thus put clearly to the jury what was the real question for them to decide.

4.     The judge was said to have failed to draw the jury's attention to evidence from which inferences favourable to the defendants could be drawn in particular that the defendants drove to Stirling Road by a circuitous route and that the bay was out of the defendants' possession for almost two hours before it was discovered at No. 369 Prince Edward Road.

29. It was suggested that the circuitous route showed that the defendants were not worried and that this suggested innocence. On the other hand, it could be argued that this was a precaution to prevent them being followed. We regard this piece of evidence as neutral, and, consequently, the failure of the judge to mention it is of no significance.

30. The judge did not refer to the long interval between the handing over of the bag by D.2 to WONG and the time when it was found. However, it cannot reasonably be supposed that the jury were under any misapprehension as to this in view of the statement of agreed facts which was before them when they were considering their verdict.

Conclusion

31. This conviction depended upon the jury drawing the inference that the defendants were part of a chain between manufacturer and distributor.

32. We see no substance in the criticisms of the summing-up, which put the law succinctly and accurately to the jury and referred in sufficient detail to the evidence, in view of the detailed agreed summary of facts.

33. We are not left in any doubt that the finding of the jury was a correct one.

Sentence

34. It was argued that the sentences of eight years' imprisonment imposed on each defendant were higher than the normal range prescribed by Chan Chi Ming⁽³⁾, in which it was suggested that the normal sentence for possession for the purpose of unlawful trafficking, if the amount was between 150 and 1,000 grammes, should be five to eight years.

35. When passing sentence, the judge stated that he was doing so on the basis that the total amount of dangerous drugs involved in the trafficking with which the defendants were connected was a mixture of 480 grammes, containing salts of esters of morphine, namely the amount which was found in the brown and white bag at No. 369. The judge specifically discounted the quantity of dangerous drugs which was found in the yellow bag taken from No. 369 by Yip and Wong.

36. Without expressing any view as to whether or not, ipso facto, the offence of trafficking should be regarded as more serious than possession for the purpose of unlawful trafficking, we see no reason why the judge should not have given weight, in deciding to adopt the top end of the Chan Chi. Ming⁽³⁾ range, to the fact that the transportation of the 480 grammes must have been part of a larger enterprise in which heroin was being manufactured (and was present in considerable quantity) at one end of the chain and was being dealt with in substantial amounts at the other end of the chain.

37. We do not consider that the sentences imposed can be said to have been manifestly excessive.

38. At the conclusion of the hearing we dismissed the applications of both defendants for leave to appeal against conviction and sentence and said that we would give our reasons at a later date, which we now do.

(1) [1973] 57 Cr.App.R. 424.

(2) [1979] H.K.L.R. 1 at p.5.

(3) [1979] H.K.L.R. 491.

Representation:

A.W. Sedgwick, K. Ramanathan (H.M. So & Co.) for Appellants

J.S. Conyngham, Sr. Crown Counsel, for Crown.