HKSAR v. Li Chi Hung and Others

CACC000018/2002

CACC 18/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 18 OF 2002

(ON APPEAL FROM HCCC NO. 98 OF 2001)

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Coram: Hon Woo JA and Pang and Tong JJ in court

Dates of Hearing: 20 December 2002

Date of Judgment: 15 January 2003

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Introduction

The three applicants who were respectively the three defendants, D1, D2 and D3, on trial before Deputy Judge Whaley and a jury in the Court of First Instance on three counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, as follows:

Count 1: on 15 August 2000, outside 2 Temple Street, Yaumati, Kowloon, D1, D2 and D3 unlawfully trafficked in a dangerous drug, namely 6.98 grammes of 3, 4-methylenedioxymethamphetamine hydrochloride, commonly known as MDMA or Ecstasy.

Count 2: on 17 August 2000, outside Times Square, Russell Street, Causeway Bay, D1 and D2 unlawfully trafficked in a dangerous drug, namely 23.3 grammes of Ecstasy.

Count 3: on 23 August 2000, at Goldfinch Restaurant, 13-15 Lan Fong Road, Wanchai, D1 and D3 unlawfully trafficked in a dangerous drug, namely 47.04 grammes of methamphetamine hydrochloride, commonly known as Ice.

2.On 20 December 2001, the jury found all the three defendants guilty of the counts against them respectively.

3.On 21 December 2001, the Judge passed sentence on D2 and D3. Regarding D2, 6 months' imprisonment was imposed on count 1 and 2 years' imprisonment was imposed on count 2. The judge ordered that 3 months on count 1 were to be served concurrently with the sentence for count 2, and the balance to be consecutive. The total of the sentences for D2 was 2 years and 3 months.

4.The Judge imposed the following sentences on D3, namely, 6 months on count 1 and 8 years and 10 months on count 3. The Judge ordered that 3 months on count 1 were to be served concurrently with the sentence on count 3, the balance to be served consecutively. The total sentence for D3 came to 9 years and 1 month.

5.On 17 January 2002, the Judge passed the following sentences on D1, namely, 6 months for count 1, 2 years for count 2 and 8 years and 10 months for count 3. He ordered 6 months on count 3 to run concurrently with the sentence on count 1 and the sentence on count 2 to run consecutively to the sentences for counts 1 and 3. The total sentence imposed on D1 came to 10 years and 10 months.

6.All the three defendants now apply for leave to appeal against conviction and sentence.

Facts

7.As none of the defendants gave evidence, the facts of this case were based on the prosecution's evidence, which the Judge dealt with in some detail in his summing up to the jury. The evidence against all the three defendants came mainly from PW1, an undercover police officer, DPC 51997 Wong Hon-kuen. Briefly, in respect of count 1, on 15 August 2000, DPC 51997 contacted D1 over the telephone. As a result, he met with D1. He gave D1 $2,400 marked money, the price he had agreed to pay for Ecstasy pills arranged to be supplied by D1. He was taken by D1 to Temple Street where he met D2 and D3. D1 handed the money to D2. She counted the money and then told D3 who was next to her to hand over the stuff. D3 took a Kent cigarette packet from his shoulder bag and handed it to D1 and then he took the packet back. D3 cut open the adhesive tape that was stuck at the front opening of the packet with a cutter that he got from his shoulder bag, after which D1 looked inside and said "No problem", and handed the cigarette packet to DPC 51997. The drug contained in the Kent cigarette packet was the Ecstasy particularised under count 1. It is a fact agreed by both the prosecution and defence under section 65C of the Criminal Procedure Ordinance, Cap 221 that the Kent cigarette packet was found to bear a piece of transparent adhesive tape cut into two pieces across the front opening of the packet and that the adhesive side of the lower of the two pieces bore a fingerprint impression identical to D3's left index finger.

8.A defence witness was called by D1 to show that D1 was playing tombola games at the Chinese Recreation Club in Causeway Bay between 8 pm and 11 pm on 15 August 2000. But according to DPC 51997, he met D1 that night at about 10.50 pm at Elizabeth House, Causeway, before D1 took him over to Temple Street on Kowloon side. It is obvious that the jury did not believe this alibi evidence given on behalf of D1 when they found D1 guilty of count 1.

9.In respect of count 2, DPC 51997's evidence was that he had made arrangements with D1 to obtain 100 Ecstasy pills at the unit price of $60 plus $10 handling fee for D1. On 17 August 2000, D1 made arrangements with the officer to meet at Times Square, when the officer handed over $6,000 marked money. D2 then arrived and after D1 handed over to her the money, she gave a red cigarette packet to D1. The three had a short conversation and DPC 51997 and D1 left in a taxi. D1 asked DPC 51997 to pay him his handling fee of $1,000 and when he did so, D1 gave him the red cigarette packet which he had received from D2 earlier. DPC 51997 opened the packet and saw a lot of orange pills with the letter "P" on them. This was the drug particularised under count 2.

10.In respect of count 3, following 17 August 2000, DPC 51997 started to negotiate the price with D1 for obtaining 1,000 pieces of "Orange P" pills. The price was eventually agreed at $52 plus $3 handling fee per pill.

11.On 23 August 2000, DPC 51997 arranged to meet with D1 at Goldfinch Restaurant in Pak Sa Road. Marked money had been made available to DPC 51997 by the police. At 6.30 pm, DPC 51997 met D1 in Pak Sa Road. D1 took him inside Goldfinch Restaurant. D1 made a telephone call to a person called "Ah Fai". D1 asked Ah Fai if the stuff was ready. D1 then informed DPC 51997 that only 150 pieces of "Orange P" were available and that the balance would be "88" which was also "lo fing". DPC 51997 asked D1 if "88" was all right. D1 said, "It's all right. Just a little bit inferior to 'Orange P'." DPC 51997 asked D1 how much they would be; D1 telephoned someone and then informed him that they would be $48 a piece.

12.DPC 51997 then called his superior officer and informed him that the 1,000 pieces of "Orange P" was changed to "88". As arranged, certain police officers then entered the restaurant in preparation of making arrest.

13.D1 left the restaurant and shortly after, he returned carrying a bag, followed by D3 whom DPC 51997 had seen on 15 August in Temple Street. D1 handed the bag to the officer who opened it to find that there was a cardboard box with the word "Sony" on it. There were also a lot of newspapers inside the bag together with plastic packets containing green "88" pills. DPC 51997 handed $13,000 to D1, which were marked banknotes. D1 counted the notes and gave $10,000 to D3, keeping $3,000 for himself. DPC 51997 then told D1 that the balance of $38,000 was with his wife whom he was to call to bring the money over. In fact the so-called wife was a woman police officer who handed the money to DPC 51997 at the door of the restaurant. When DPC 51997 returned to the table, he held up his arm to indicate asking for the bill, which was the prearranged signal, in a loud voice. Other police officers came up and arrested both D1 and D3.

14.Shortly thereafter, D2 was also arrested in Kowloon.

15.It was also an admitted fact that the $3,000 seized from D1 and the $10,000 seized from D3 on 23 August 2000 were part of a quantity of marked money given to DPC 51997.

Grounds of appeal against conviction

16.There are five grounds of appeal in the amended perfected grounds of appeal against conviction filed on behalf of D1. D2 and D3 who appeared in person repeated the same grounds. Now Mr Philip Wong, who drafted the grounds, appears for all the three defendants. He has abandoned grounds 2 and 3 on their behalf. While ground 5 is a wrapped up ground that the conviction is unsafe and unsatisfactory, Mr Wong's arguments are limited to grounds 1 and 4, which are the only substantive grounds raised on behalf of all the three defendants.

Ground 1

17.Ground 1 contends that the Judge failed to direct the jury that the evidence of prosecution witnesses including PW1, ie DPC 51997, who had testified before the Judge in the voir dire, had been rejected, thus amounting to a non-direction on the credibility of the prosecution witnesses and depriving the defendants of their right to a fair trial. The factual basis for this ground was that there was a voir dire regarding the admissibility of an oral admission of D1 at the scene of the arrest and four written records of interview taken from D1 when he was placed under police custody. The voir dire lasted more than 10 days. Various prosecution witnesses, being police officers, who took part in the arrest, including the statement-taking officer and DPC 51997, gave evidence. At the end of the voir dire, the Judge rejected the prosecution case and ruled against the admissibility of the five confessional statements. But during the trial proper and in the Judge's summing up to the jury, the fact that the Judge had rejected the police witnesses' testimony in the voir dire was never canvassed.

18.Mr Wong relies on three cases. HKSAR v Chan Hon Man, HCMA 455/97 (16 July 1997, unreported) concerned the credibility of a witness who made allegations against the appellant. This witness had made very similar allegations against another person in a case which was heard subsequent to the conviction subject to appeal. In that subsequent case, a magistrate found that witness was not telling the whole truth, was selective in giving evidence and was trying to withhold certain facts. The magistrate found that it would be dangerous to convict that other accused on the evidence of the witness and he dismissed the charges against that other person. Mr Justice Patrick Chan, CJHC (as he then was) found that the same witness who testified in the subsequent case and also in the case before him was testifying to facts which were very closely linked, not relating to separate incidents. Because the magistrate was not told, and could not have been told, of the other magistrate's view in the subsequent trial of the witness, the Chief Judge took the view that there was a lurking doubt as to whether the witness had told the whole truth in the case before him. After referring to Cooke (1986) 84 Cr App R 286 and Savin (referred to in Cooke), the CJHC said:

"... It would seem that in both cases, the crucial witnesses whose evidence was relied upon to convict the appellant were subsequently found to be of dubious nature. Such information on the witnesses' credibility if it can be made available would no doubt be relevant to their cross-examination and would also play a part in the magistrate's decision in a subsequent trial as to whether to believe such witnesses.

However, I would add a word of caution. A witness may be telling the truth in connection with one case but may not, for various reasons, be telling the whole truth in a subsequent case. This may result in the subsequent court not being satisfied beyond reasonable doubt of what he said was the truth. Conversely, a witness who has been found to be unreliable on a previous occasion may be perfectly honest and trustworthy in his subsequent case. So long as the witness is allowed to be crossed (sic) examined on his credibility and the trial judge has the opportunity to fairly assess his evidence in the light of his behaviour on the previous occasion, no injustice will be created. ..."

19.The Queen v Lam Wai-keung [1994] 2 HKCLR 9 was an application for leave to appeal against conviction for, inter alia, robbery. At the trial, the applicant's cautioned statement was admitted after voir dire, despite the fact that applicant complained that he had been subject to violence by the police officers who had recorded the cautioned statement. In previous proceedings before a different judge, but in relation to the same alleged robbery, one Lam Ka-lok had successfully claimed that his own cautioned statement had been obtained by means of violence on the part of police officers. The same police officers had taken the statement of Lam Ka Lok and of the applicant. The Court of Appeal held that where a police officer who had allegedly fabricated an admission in the case had also given evidence of an admission in an earlier case and in which earlier case that evidence had been disbelieved, it was proper that the court in a subsequent case should be fully acquainted with that fact. As the evidence of the rejection of the police officer's evidence in the earlier trial had not been canvassed before the jury in the subsequent trial, it rendered the applicant's conviction unsafe and unsatisfactory.

20.Mr Wong also relies on R v Lee Man Liu [1992] 2 HKCLR 41 in which the Court of Appeal held that where the evidence of taking of a post-recorded statement failed to establish beyond reasonable doubt that the statement was voluntary, the evidence of the statement taker about an earlier oral admission recited in the post-recorded statement must necessarily be regarded as suspect and so rejected. Mr Wong argues that this principle, mutatis mutandis, should apply to the evidence of DPC 51997 whose testimony in the voir dire had been rejected and so his evidence on the general issue must be suspected, if not necessarily rejected.

21.We accept that what is cited above from Chan Hon Man and Lam Wai-keung is good law. Indeed, we are bound by the decision in Lam Wai-keung. Nonetheless, the defendants before us are faced with several hurdles in their seeking to rely on ground 1.

22.The fact was that the five confessional statements made by the D1 had been ruled inadmissible by the Judge was not mentioned by the counsel acting for D2 and D3 or the counsel acting for D1 at the trial before the jury. That must have been the reason why the Judge did not mention it either in his summing up. In Lam Wai-keung, Yang CJ who gave the judgment of the Court said at page 13(34):

"It is trite law that, except in the case of flagrantly incompetent advocacy, the Court will set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of a trial which later appears to be mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes: vide Power J.A. in R. v. Ho Shu-chung [1990] 1 HKLR 180 at 188 I-J; see also Fuad, V.-P., in R. v. Mo Lee-kuen [1993] 1 HKCLR 78, at 84(45)-86(30).

In R. v. Clinton [1993] 2 All ER 998, Rougier, J., said (at 1004 i -1005 a):

' The court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate, after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally, where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate court to set aside the verdict by reason of the terms of s. 2(1) (a) of the 1968 Act' I.e., the Criminal Appeal Act."

23.In the present case, it is quite obvious why the two counsel acting for the three defendants at the trial did not canvass before the jury the fact of the exclusion of the confessional statements in the voir dire. At the conclusion of the voir dire the Judge stated his decision:

"On all the evidence that I have heard in this voir dire, I am not satisfied beyond a reasonable doubt, as I am required to be, that the oral statement allegedly made by the 1st accused and the post records and records of interview were made freely and voluntarily by him, and without any undue influence. I accordingly rule that they are inadmissible in evidence in this trial."

24.The Judge did not specifically state that he did not believe any of the prosecution witnesses, the police officers, who had given evidence, regarding their conduct at the taking of the confessional statements. Indeed, the statement taker of the five confessional statements from D1 was DPC 46340. DPC 51997 was the undercover police officer, who signaled to his colleagues to make the arrest at the Goldfinch Restaurant on 23 August 2000. His evidence in the voir dire related to only two aspects that had a bearing on the first oral confessional statement. He said that he did not hear what D1 told DPC 46340 at the scene of the arrest and that he did not notice blood on D1's shirt in the restaurant. The Judge did not state in his decision not to admit the confessional statements that he disbelieved DPC 46340, let alone disbelieving DPC 51997. He was merely not satisfied beyond a reasonable doubt that the confessional statements had been freely and voluntarily made by D1 and without undue influence. The Judge's ruling did not indicate that he disbelieved DPC 51997, and there was no basis for counsel for the defence at the trial to cross-examine this officer on the Judge's ruling.

25.Even assuming that the Judge did disbelieve DPC 46340 in his ruling the confessional statements inadmissible, such ruling would have no bearing on the credibility of DPC 51997, whose evidence in the voir dire was as to his knowledge of what D1 had allegedly stated to DPC 46340 and what he did not notice on D1's shirt in the restaurant. In such circumstances, even if counsel for the defence at the trial had attempted to cross-examine DPC 51997 on the effect of the Judge's ruling, they would not have been allowed to do so. It is instructive to note the judgment of Lord Lane CJ in R v Edwards [1991] 1 WLR 207, at 217D cited by the Court of Appeal in Lam Wai-keung:

"The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying."

26.While Mr Wong maintains that the Judge should have canvassed his ruling in the voir dire before the jury or otherwise the trial would not be fair to the defendants, he accepts that he cannot find any authority on the subject and concedes that there is no duty on the Judge to do so. Ground 1 fails.

Ground 4

27.Ground 4 contends that the Judge had wrongly admitted the evidence of the finding of a packet of ketamine in the motor vehicle registration number EG 83003 from which D1 and D3 was observed to have alighted outside the Goldfinch Restaurant. Inside the car, there were three other males, but all the five occupants of the car had not been charged with possessing the ketamine. The complaint is that the probative value, if any, of this piece of evidence was far outweighed by its prejudicial effect. Mr Wong relies on Wong Wai Man v HKSAR, FACC 1/2000 (3 November 2000, unreported, FCA). It was held in that case that if a piece of evidence is not probative at all, it is not permissible to adduce it because it is irrelevant, and if the prejudicial effect outweighs the probative value, that would also render the admission of the evidence impermissible. The facts of that case, however, have no bearing upon the applications before us.

28.Mr Wong complains that the Judge should have administered a cautionary admonition (one similar to that referred to by Bokhary PJ in Wong Wai Man) on the jury that the evidence about the ketamine could have been created by the police to cover up the fact (or allegation of the defence) that they had planted the drugs on the defendants in relation to the three counts. Having failed to give the admonition, the Judge is proved to have been wrong in admitting the evidence.

29.In the summing up of the Judge, he explained to the jury why this piece of evidence of the finding of ketamine in the car had been adduced. He said (at pp 47O-48R of the transcript):

"A further point: you will recall the evidence about the finding of the packet in the motor vehicle, members of the jury, under the mat at the back seat of the motor vehicle, and that packet contained ketamine which is a dangerous drug in terms of the Ordinance. That, of course, is part of the overall evidence, which has been put before you and which you can consider along with all other evidence.

However, that evidence was let for one reason only, and that was to counter the suggestion put to the police witnesses that the drugs, which are the subject of the charges, had been planted by them and that they had given lying evidence in order to falsely frame up the accused's on these charges. If you accept the evidence about the finding of the packet of ketamine in the car as being truthful and reliable evidence, the prosecution says that it is relevant for you to keep in mind that here was a packet of dangerous drugs which the police found in the car outside the restaurant on 23 August and nobody has suggested that any of the police officers have tried in any way to plant that packet on any of the accused and, on the contrary, none of the accused has been charged, no charge has been laid against them in relation to that packet.

Now, it is important that you bear clearly in mind that none of the accused have been charged in connection with it and you are not entitled, as a matter in law, to find or to believe that any of these accused had any connection with packet of ketamine or that they were in any way responsible for its presence in the car outside the restaurant, nor are you entitled to treat that evidence of the finding of the packet of ketamine as in any way probative, as in any way assisting the prosecution case against the defendants that they were trafficking in the dangerous drugs as specified in the 2nd charge in the restaurant or, indeed, in any of the dangerous drugs with which they are charged of having trafficked in.

So, I hope that I have made that clear. If you were to find the evidence about the finding of the packet of ketamine truthful and reliable, the only relevance which it could have in your minds is in relation to what the prosecution says it is relevant for you to keep in mind, namely, that this was a drug which, on the police evidence, was found there but not planted on any of the accused's."

30.Mr Wong submits that the jury would wrongly assume that they could make use of the evidence of the finding of the packet of ketamine in their deliberations as to whether the defendants had trafficked in the dangerous drugs as charged. In view of the Judge's clear direction to the jury, we are not persuaded by this submission. The Judge has clearly mentioned to the jury the limited purpose for which this piece of evidence was adduced, ie, to counter the defence case put forward to prosecution witnesses that they planted the drugs in the three counts to frame up the defendants. The Judge had very carefully and properly directed the jury, emphasising that it was a matter of law, to restrict their consideration this piece of evidence for that very limited purpose.

31.We do not consider that the Judge was bound to administer the admonition in this case, not only because of his clear explanation to the jury of the very restricted purpose of the use of the piece of evidence as a matter of law that the jury had to comply, but he had also specifically asked the jury that they should act upon this evidence only if they found it to be true and reliable. Ground 4 fails.

32.In the perfected ground of D3, we are asked not to take the admission of guilt as appeared in the homemade ground of D3 against sentence, in relation to our consideration of his application against conviction. As we indicated to counsel at the commencement of the hearing, we have not done so.

33.Both grounds 1 and 4 against conviction fail. We do not consider that there is anything which shows that any of the convictions of D1, D2 and D3 is unsafe or unsatisfactory. We therefore dismiss their applications in relation to conviction.

Sentence

34.Apart from the grounds that the sentences imposed on each of the defendants are manifestly excessive, only one substantial ground is raised on behalf of D1 and D3. It is contended that the Judge wrongly found that there was no information as to the state of mind or degree of knowledge of D1 and D3 or the degree of care exercised by them regarding the drug they supplied to DPC 51997 on 23 August 2000 (in respect of count 3).

35.The factual basis was that according to the evidence of DPC 51997, all along in respect of the three transactions, the subject matter of the three counts, he had made arrangements with D1 for the supply of Ecstasy pills, although the drug supplied on 23 August 2000 was eventually found to be Ice instead of Ecstasy. The complaint is that the Judge wrongly applied the sentencing guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125 that for unlawful trafficking in Ice, the advised tariff is, for a quantity between 10 to 70 grammes: 7-10 years. The Judge passed a sentence of 8 years and 10 months on count 3 on both D1 and D3. The Judge stated the factual and legal bases for the sentences that he imposed very clearly (pp 82Q-84L of the transcript):

"I should say that the undercover officer, in his evidence during this trial, made it clear that at all times during this 'Take Rice' anti-drug operation he was negotiating with the 1st defendant to buy 'lo fing' or Ecstasy. That was the drug which he purchased on the first two counts, and was also the drug which he negotiated to purchase on the 3rd count.

I have already described how originally the pills that were going to be supplied to him by agreement on the 3rd count were 'Orange P' from Holland, however, at the last minute, by agreement, these were substituted by what were called '88' pills, which were said to be a slightly inferior grade to the 'Orange P'. The price was, accordingly, reduced from $53 (sic) to $48 a piece.

The undercover officer agreed that he believed it was Ecstasy that he had in fact purchased, and it was only when the report came back from the Government Chemist that he learned the pills were in fact not Ecstasy, but 'Ice'.

It remains a mystery, which is not cleared up on the evidence in this case, as to why the 1st and 3rd defendants supplied 'Ice' to the undercover officer when their negotiation had been conducted for Ecstasy. None of the defendants gave evidence during the trial so none of them had been able to, or sought to, shed any light on this. Indeed, it remains unknown on the evidence whether the defendants knew or did not know that the drugs which they supplied was in fact 'Ice'.

Mr Lavac [counsel for D2 and D3] urged me to sentence the 3rd defendant on this count on the factual basis that he thought it was Ecstasy that he was supplying. However, for the reason that I have indicated, I do not consider that it would be correct for me to sentence on that factual basis.

That the defence of this defendant and the other defendants was to strenuously challenge, through cross-examination, the evidence of the police officers. None of the defendants gave evidence and we have not, therefore, heard anything from the 3rd, or any of the other defendants, as to what their state of knowledge was in relation to these pills that were provided on the 3rd count. The fact is that it was 'Ice', not Ecstasy that was supplied.

It is of interest to note the figures which Mr Halley [counsel for the prosecution] has informed me of as to the retail values of the two drugs in May and June last year. The retail values of the two drugs during that period were not markedly or particularly different from each other. The retail value of 'Ice' varied between $250 and $450 per month for one gramme, and for Ecstasy, it varied between $120 and $200 per month for one gramme.

For the reasons I have given, in my view, the correct approach to the facts is for me to sentence the 3rd defendant on the basis of the guidelines for trafficking in 'Ice' laid down in AG v Ching Kwok Hung (supra). In my view the correct sentence, in the light of those guidelines, is 8 years and 10 months on this count, which the sentence I impose.

I should add that my own researches have revealed a relevant authority in the Court of Appeal in England, Edward Balinski (sic) [1998] 86 Cr App R 146 in which the Court of Appeal in England indicated that:

'It was no answer to a charge of importing a class A drug that the importer thought that it was a class B drug. However, a defendant's belief that it was a class B drug was relevant to punishment that would make him less culpable than if he knew it was a class A drug. To what extent the punishment should be mitigated by that factor would depend on all the circumstances, amongst which was the degree of care which had been exercised by the defendant.'

On the facts of that case, the court found that the mitigating effect of his belief, if he held it, was small.

I mentioned this by the way, because, as I made it clear, I am sentencing the defendant in accordance with the guidelines for trafficking in 'Ice'; and I have in mind also the provisions of section 47(2) of the Dangerous Drugs Ordinance which provide that once a defendant is found to have been in possession of a dangerous drug, he is presumed, until the contrary is proved, to know what the nature of the drug was. Other considerations aside, I am bound by that provision of the law, in my view, in terms of which the defendant is presumed, or the facts of this case, have known the drug which he supplied was 'Ice'. "

36.The above passages were uttered by the Judge when he sentenced D2 and D3 on 21 December 2001. When he sentenced D1 on 17 January 2002, he used the same reasoning. Both Mr Lavac, counsel for D2 and D3 before the Judge, and Miss Moosdeen for D1, addressed the Judge strenuously on the basis of DPC 51997's evidence that D3 and D1 honestly believed that the drug that was supplied to the officer on 23 August 2000 was Ecstasy instead of Ice. Despite the indication by counsel for the prosecution of the retail values of Ice and Ecstasy in May and June 2000, which the Judge apparently accepted, it was in evidence that DPC 51997 said that Ice was more expensive than Ecstasy, in that D1 told him that the price would be reduced from $52 to $48 per pill. Despite the citing of Bilinski, the Judge did not accept that D1 and D3 held the belief that the drug that they supplied on 23 August 2000, the subject matter of count 3, was Ecstasy instead of Ice. That appeared to have been based on the Judge's stance that the defendants had not given any evidence that D1 and D3 had exercised any care regarding to the type of the drug they supplied. He also found himself bound by the provisions of section 47(2) of the Dangerous Drugs Ordinance which presume that the defendants knew the drug was Ice.

37.While it is no defence to count 3 that D1 and D3 did not know the nature of the drug they supplied because of the operation of section 47(2) of the Ordinance, the defendants' belief that it was Ecstasy instead of Ice was relevant to punishment, as was held in Bilinski. We accept the argument by Mr Wong on behalf of these defendants that there is a difference between the "nature" and "kind" of the drug that a defendant believed it was, and that section 47(2) does not presume that the defendant had knowledge of the kind of the drug that he possessed. We consider that the Judge erred in applying section 47(2) when he decided on sentence. Indeed, Mr Chapman, for the respondent, does not seek to support the Judge's view of section 47(2) as being applicable to sentencing.

38.Mr Chapman, however, places emphasis on three matters in support of the Judge's approach to sentence. First, the Judge was perfectly entitled to reject that D1 and D3 held the belief that the drug was Ecstasy instead of Ice because they did not give any evidence as to their alleged belief. Second, the Judge indicated to Mr Lavac that he was not agreeable to sentence D3 on the basis of D3's alleged belief and invited Mr Lavac to call evidence on D3's alleged belief, which was declined. Third, according to Bilinski, allowing the defendants to take advantage of their alleged belief of the kind of drug involved would open the floodgate. On these bases, Mr Chapman asks us not to interfere with the sentence.

39.It is true that none of the defendants gave evidence at the trial before the jury, and their counsel put forward their defence of the police planting the drags under the three counts in cross-examination of the police witnesses. It is also true that the Judge did alert Mr Lavac of his view and invite Mr Lavac to call evidence. This is apparent from p 78 of the transcript:

COURT:	... Mr Lavac, I must inform you that I'm not disposed to sentence the 3rd defendant on the factual basis that you asked me to. It is I think theoretically open to you to call him, if you wanted to, isn't it, to try to establish this point if you want to? But I imagine that, in view of his defence, that's not a course that you'd favour?
MR LAVAC:	No, that would cause all sorts of problems for appeal.
COURT:	Yes.
MR LAVAC:	So I'm not prepared to do that, my Lord.

40.The Judge appreciated that Mr Lavac would not call evidence on D3's alleged belief, and Mr Lavac expressly said so, also intimating that that course would cause problems on an appeal, obviously one against conviction. We well understand the dilemma that confronted Mr Lavac. Moreover, we do not feel that the Judge was justified to reject the alleged belief on the part of D3 and D1. The evidence, albeit circumstantial, most compellingly pointed to that belief. The subject matters of counts 1 and 2 were Ecstasy. The evidence was that all the arrangements made between DPC 51997 with D1 in respect of all the three counts were about Ecstasy. On 15 August 2000, D3 supplied Ecstasy (relating to count 1) to the officer at the instructions of D2 and in the presence of D1. Two days later, on 17 August 2000, the arrangement between DPC 51997 and D1 was again in respect of Ecstasy. On that occasion, D2 made available Ecstasy and not Ice. On the third occasion, on 23 August 2000, it was at the last minute that D1 said that "Orange P" pills were not available and "88" pills, which were expressed to be of an inferior quality, were to be supplied instead. In fact, 999 "88" pills were supplied to the officer in Goldfinch Restaurant.

41.According to the photographs of the "Orange P" and "88" exhibited at the trial, the two kinds of pills looked like ordinary pills, but the "Orange P" pills were orange in colour whereas the "88" pills were green pills, not in powder or other form. It was DPC 51997, the undercover officer, who testified to the details of the meeting with D1 in Goldfinch Restaurant. He overheard what D1 said on the telephone when D1 was apparently talking to Ah Fai (D3). Then D1 informed the officer that there was only 150 pieces of "Orange P" and the balance would only be "88" pills of an inferior quality and priced at $4 per piece less. It was accepted by all concerned at the trial that Ice was more expensive than Ecstasy. The Judge said that "it remains a mystery" why Ice was supplied instead of Ecstasy. This comment must have been based on the evidence that Ecstasy was less expensive than Ice. The retail price figures for Ice and Ecstasy supplied by counsel for the prosecution to the Judge were in relation to the period of May to June 2000, and not August 2000. They may not apply at the time when the offences in this case were committed. Moreover, even those figures could not properly be used to displace the evidence of DPC 51997 that demonstrated D1's belief that "88" pills were of inferior quality to "Orange P" pills which was well illustrated by the lower price charged. It would be strange that D1 and D3 would supply a more expensive drug to DPC 51997 at a lower price.

42.D1 was, throughout the three transactions forming the bases of the three counts, clearly a go-between, and D3 was a supplier. It is difficult not to appreciate that as a go-between, D1 could have exercised any care in ascertaining that he would not supply a more expensive drug to the officer, so that the officer would get more than he bargained for. On the other hand, D3 being the supplier, might be said to have failed to exercise care in supplying a more expensive drug to the officer. As accepted by Mr Wong, D3's position regarding his belief was not as strong as D1's.

43.It is clear from the verdicts of the jury that they accepted DPC 51997's evidence, or else they could not have convicted D1 and D2 on counts 1 and 2, because there was no other evidence, apart from the officer's testimony, against the two defendants on those counts. The evidence of D3's fingerprint impression on the Kent cigarette packet and the evidence of the marked money found on D1 and D3 on 23 August 2000 only implicated D3 on count 1 and these two defendants on count 3. In sentencing, when the Judge rejected D1 and D3's alleged belief, he would have to reject DPC 51997's evidence regarding the circumstances under which count 3 was committed. That would be contrary to the jury's findings. From the transcript before us, we cannot discern how otherwise could the Judge have rejected the belief of D1 and D3. Regarding D1 as a mere go-between, we do not see any evidence that could point to his failure to exercise care in not ascertaining the kind of drug supplied to the officer on that occasion. Regarding D3, the Judge could perhaps have thought that as the supplier of the drug, and not merely a go-between, he could have exercised care to make sure that it was only Ecstasy and not Ice that was supplied. But that could not have been a sound basis for rejecting D3's belief that it was Ecstasy because there could be no possible reason, if he had known the drug to be Ice, for him to have supplied something more expensive than the officer had agreed to pay for.

44.In the circumstances, we consider that D1 and D3 should properly have been given the benefit of the doubt in their belief. We do not think that this would lead to a floodgate, as Mr Chapman has contended. The belief was supported by the unique circumstances of this particular case. There was very strong circumstantial evidence which had apparently been accepted by the jury. That evidence came from the witnesses for the prosecution who had testified on oath. This kind of situation must be unusual, if not rare, and even if it might lead to a less heavy sentence for those involved, we consider that fairness and justice demand our intervention.

45.However, we do not find that the Judge had erred in having regard to the relevant tariffs of sentence in Ching Kwok Hung. He erred merely in failing to take into account the relevant factor of the two defendants' belief of the kind of drug that they had supplied in reaching his decision on sentence.

46.In R v Lee Wing Chun [1982] HKC 653, the appellant appealed against his sentence of 4 years' imprisonment passed upon conviction on his own plea on a charge under section 4A of the Dangerous Drugs Ordinance. The appellant there offered to traffick in a substance held out by him to be a dangerous drug, which was in fact starch. Having taking into account the fact that the appellant was a go-between and he had pleaded guilty, and the other mitigating factors accepted by the trial judge, the Court of Appeal took the view that the sentence of 4 years was wrong in principle and reduced it to 2 years.

47.It is clear from section 4A of the Ordinance that the legislative intent is to make it an offence for a person who has held out to supply a dangerous drug which in fact is not a dangerous drug. The accused in Lee Wing Chun was punished for his belief or his deceit, a state of his mind, instead of his act of supplying the substance that he supplied. We consider the criminality of the mental state of an accused a very important aspect in sentencing, besides his act of supplying a dangerous drug. His culpability and therefore punishment would need fairly be related to both his mental state and his conduct. However, in a case of drug trafficking, the kind of the drug actually involved in the trafficking should have a more weighty bearing than the mental element, just as the tariffs of sentence for drug-related offences hinge more on the quantity of the drug involved.

48.On conviction on indictment, the maximum penalty under section 4A of the Ordinance, for trafficking in a substance held out to be a dangerous drug, is 7 years' imprisonment and a fine of $500,000, whereas the maximum penalty under section 4 of the Ordinance, for trafficking in an actual dangerous drug, is life imprisonment and $5,000,000. A comparison of the respective maximum penalties helps demonstrate the relative seriousness that the legislature attaches to the mental state and the effect of the conduct of the offender.

49.In all the circumstances of this case, taking the most favourable view of D1's belief which was that he had honestly thought that the drug he supplied on count 3 was Ecstasy and was not Ice, in our judgment, the proper sentence would be a one-third reduction from the normal tariff in Ching Kwok Hung. As far as D3 is concerned, the evidence in his favour was not as clear and strong as that for D1, and we consider that even though he might be said to hold an honest belief that the drug was Ecstasy and not Ice, his position as disclosed in the evidence would require him to have exercised a higher degree of care, as said in Bilinski, than D1. In other words, D3 as the supplier is more culpable than D1 as the go-between, in not exercising sufficient care to ensure that it was Ecstasy and not Ice that was supplied to the undercover officer. The proper reduction from the normal tariff in Ching Kwok Hung for D3 should, in our judgment, be one-quarter to reflect this higher degree of culpability.

50.In respect of count 3, therefore, we set aside the sentences of 8 years and 10 months for both D1 and D3 and substitute a sentence of 5 years and 10 months for D1 and a sentence of 6 years and 8 months for D3. We do not consider that there is any basis for us to interfere with the Judge's orders making the sentences concurrent or consecutive. In respect of D1, the sentences of 6 months for count 1 and 2 years for count 2 stand. The sentences of 5 years and 10 months is substituted for the sentence imposed by the Judge on D1 for count 3. We order, as the Judge did, that 6 months on count 3 are to run concurrently with count 1, the sentence on count 2 is to run consecutively to the sentences on counts 1 and 3. The total sentence that D1 has to serve is 7 years and 10 months.

51.In respect of D3, the sentence on count 1 of 6 months stands. On count 3, as said before, a sentence of 6 years and 8 months is substituted for the sentence passed by the Judge. We also order, as the Judge did, 3 months on count 1 to be served concurrently with the sentence on count 3, the balance to be served consecutively. The total sentence that D3 has to serve comes to 6 years and 11 months.

52.The substantive ground of appeal on belief applicable to D1 and D3 does not apply to D2, who was not charged with count 3. There is no other circumstance to show that either the Judge was wrong in principle or has passed a sentence on D2 which is manifestly excessive. Her application relating to sentence fails.

Conclusions

53.The three defendants' applications relating to conviction are dismissed.

54.Relating to D1 and D3, we grant leave to them to appeal against sentence, and treating the application as the appeal, we set aside their sentences on count 3 as imposed by the Judge and substitute therefor the sentences mentioned above. To this extent, the appeals of D1 and D3 against sentence succeed. D2's application on sentence is dismissed.

Representation:

Mr Philip Wong, instructed by Messrs Lau, Chan & Ko, for the 1st, 2nd and 3rd Applicants (Defendants).

Mr P S Chapman SADPP and Miss HO May Yu Lily SGC, of the Department of Justice, for the Respondent.