R. v. Yip Mong Yee

CACC000188/1994

IN THE COURT OF APPEAL

1994, No.188
(Criminal)

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Coram: Hon. Power, V.-P., Litton, V.-P. and Bokhary, J.A.

Date of hearing: 27 April 1995

Date of judgment: 27 April 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. At trial the applicant faced two counts of trafficking in dangerous drugs and one of manufacturing dangerous drugs. He had pleaded guilty to a count of possession of a forged identity card. He was, after trial before Deputy Judge Cheung and a jury, found guilty of the first of the trafficking counts and was acquitted on the other two counts. The count on which he was found guilty reads as follows:

"YIP Mong-yee, on the 12th day of March, 1993 outside No. 140, Hoi Pa Street. Tsuen Wan, together with LAU Kam-hing, unlawfully trafficked in a dangerous drug, namely 2,033.15 grammes of a mixture containing 1,638.24 grammes of salts of esters of morphine."

He was sentenced to 22 years on that count and to 12 months on the possession of a forged document count and the sentences were ordered to be served concurrently.

2. It was the Crown evidence that on 12th March 1993 the applicant had delivered the dangerous drugs the subject of the charge to the accomplice LAU Kam-hing. At the time of the alleged delivery the drugs were in the booth of a vehicle EZ 7485 which was being driven by the applicant. This car was kept under police observation and it was seen to stop opposite 140 Hoi Pa Street. The applicant then got out of the vehicle, locked it and went across the road where he met Lau outside 138. After some conversation the two men returned to the car, the applicant unlocked the front door and apparently released the boot cover as the boot then opened and Lau took a brown plastic bag from the boot. This was later found to contain the drugs, the subject of the count. The applicant then locked the car and joined Lau on the opposite side of the street Lau entered 140 and the applicant remained standing outside 138. He was shortly afterwards arrested by PW1, a police officer, who a short time after that handed him into the custody of PW2 DPC 40217. This DPC had already effected arrest upon Lau. The applicant upon being cautioned by him said, "I was only an employee". It was upon a later search of the applicant's home that the false identity card in the name of LO Chung-man was found. The applicant in his statement said that the false identity card had been "issued to me by the company for the purpose of renting the house and car". The house to which he referred was Flat C on the second floor of 140 Hoi Pa Street, the keys to which were found on Lau.

3. When a search was made of this residence it was found to contain the drugs which were the subject of the manufacturing count and also a considerable amount of paraphernalia for the processing and packing of dangerous drugs.

4. On the evening a third person WONG Shu-kan, who had been in the vicinity prior to the arrest of the applicant and Lau, was also arrested. Nothing more was heard of him as he was given bail and absconded.

5. The applicant said that he had rented the flat in December 1992 because he was assisting Wong to set up a vice centre in the flat which would be staffed by prostitutes from China. He said that it was Wong who had given him the card and who had paid the deposit for the flat. He admitted that he had signed the tenancy in the false name which was on the identity card but he said that he never went to the flat after the signing of that agreement. He said that he had bought the car at $8,000 at Wong's direction and that it was to be used to carry customers. He said that after the purchase of the car he kept it for only two days and then Wong had asked for it and he had given it to him and handed him one of the three keys to the car and that he kept the other two himself. He said that on 12th March Wong told him to pick up the car at the Yung Shu Tau Carpark and that he had done so and that he had then later driven it to Hoi Pa Street and the circumstances which the police described had then occurred.

6. Today the applicant is represented before us by Mr. Grossman Q.C., with him Miss Annie Lai. He had advanced four grounds of appeal, the first two can be dealt with together. They read as follows:

"1. The learned trial judge erred in his directions to the jury on the meaning of constructive possession.

2. The learned trial judge misdirected the jury in applying the law to the facts of this case."

The learned trial judge gave extensive directions as to constructive possession. In essence the argument of Mr. Grossman relying upon R. v. Landy (1981) 1 W.L.R. at 355, is that the trial judge in his directions got lost in the trees. He suggests that they were so defused that they must have confused and misled the jury. The overly wide explanation of possession must be read against the light of the very simple facts with which the jury were dealing. We are satisfied having examined with care all of the matters urged before us by Mr. Grossman that the jury could have been in no way confused or misled. At the end of the day the jury could have been left in no doubt that what they had to be sure of was that the applicant knew that the parcel in the boot of the car contained the dangerous drugs.

7. We turn to Ground 3 which was that

"The learned trial judge misdirected the jury in the approach to their consideration of whether or not to accept the first statement of the applicant."

This ground is concerned with a passage in the summing up which reads as follows:

"Your task, however, is again not to decide which version of the evidence you prefer. Your task is to assess the prosecution's evidence to see if it proves beyond reasonable doubt that the statement was given by the defendant in the manner as described by the prosecution. Even if you do not accept the defendant's evidence in this regard, you still have to decide if the prosecution has satisfied you that the statement was given by the defendant in the manner as relied upon by the prosecution."

Mr. Grossman in his criticism of this passage in our view wrongly reads too much into it by isolating it and making an overly particular analysis of the words used. We have examined it against the background of the summing-up as a whole land in our view there is nothing objectionable in it. This ground must also fail.

8. The four ground urged by Mr. Grossman reads as follows:

"The learned trial judge erred in that he failed to direct the jury that they might disbelieve part of the appellant's evidence and accept other parts of it."

Mr. Grossman suggests here that the situation called for a modified Broadhurst direction, one in which the jury would have been told that untruths as to some matter were not necessarily any indication of mendacity on all matters. We do not consider that any such direction was called for. The evidence was such that it could properly be left to the jury for their assessment without giving a direction of this type. This ground also fails.

9. The application for leave to appeal against conviction therefore must be dismissed.

10. We turn now to the applications for leave to appeal against the sentence of 22 years.

11. The amount involved, as Mr. Grossman conceded, was almost three times the amount which would call, in accordance with the guidelines in LAU Tak-ming for a sentence of 20 years. Mr. Grossman submits that this court must, when looking at the question of sentence, bear in mind that the evidence before the court was that he was only an employee and that there was nothing anywhere to indicate that he was more than a courier. He submits that if a sentence of 22 years is imposed upon such a person, it leaves no room at the top end for the court to deal with persons who are major traffickers. We are not impressed with such an argument. This court has said before and now repeats that in circumstances such as this where there is no evidence as to the exact extent of involvement of the offender he must be sentenced upon the basis that he was a person intimately involved in a substantial trafficking operation and he must be sentenced in accordance with the guidelines in LAU Tak-ming. The trial judge clearly followed those guidelines and clearly sentenced him in the way in which we have suggested it was proper for him to do. That being so there is nothing which in any way would indicate that the sentence was not a proper one and the application for leave to appeal against it must also be refused.

Representation:

Mr. M.C. Blanchflower S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Clive Grossman, Q.C. & Miss Annie Lai (C.K. Tse & Co.) for the Applicant.