The Queen v. Lau Tak Ming and Another

CACC000230/1989

BETWEEN

BETWEEN

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Coram: Silke, V.-P., Kempster & Power, JJ.A.

Dates of Hearing: 4 January 1990; 27 March 1990; 19 April 1990

Date of delivery of Judgment: 29 May 1990

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JUDGMENT

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Silke, V.-P.:

1. This is the Judgment of the Court.

2. In Criminal Appeal No. 230/89 Lau Tak Ming was convicted, after a trial which took place before Bewley, J. and a jury, of a single offence of conspiracy to traffick in dangerous drugs. He was sentenced to 20 years' imprisonment. In the course of the same trial Hoo See Chong pleaded guilty to a count of conspiracy to traffick in dangerous drugs and to a second count of trafficking in dangerous drugs. At the time of arrest 18 blocks of No.4 heroin, weighing 5.9 Kg., were discovered. He was sentenced by Bewley, J. to 14 years' imprisonment on the first and 14 years' imprisonment on the second count to run concurrently. Lau sought leave to appeal against both conviction and sentence and Hoo against sentence.

3. In Criminal Appeal No. 269 of 1989 Yeung Wai Shing and Ho Wang Cheuk, who had pleaded guilty to a joint count of trafficking in dangerous drugs, were sentenced by Wong, J. to 13 years and 9 years' imprisonment respectively. The quantity of drugs involved was 1,365.94 grammes of a mixture containing 1,220.46 grammes of salts of esters of morphine. They seek leave to appeal against their sentences.

4. When their application first came on, on 4th January 1990, Mr. Plowman who appears for them in this Court asked that the matter be adjourned to the date upon which Criminal Appeal No. 230 of 1989 was set down for hearing.

5. The issues arising in all these sentence applications related to the decision of this Court in R.v. Cheng Yeung [1989] 2 HKLR 258, which was heard on 10th March and in which the judgment was given on 14th April 1989. This decision laid down new guidelines as to sentence for offences connected with that which is known as No.4 heroin and where the charge is possession for' the purpose of unlawful trafficking.

6. When the applications came on for hearing on 27th March 1990 the Court first dealt with the Lau's application in respect of conviction, refusing that and stating it would give its reasons later. Having heard argument relating to the sentences passed on the individual applicants it became apparent that matters of public interest arose in connection with the decision in Cheng Yeung. As Mr. Plowman, and for that matter Mr. Ramana than, who appeared for Lau, were not directly concerned in those matters, the applications were adjourned so that the Court could have the assistance of an amicus curiae which assistance has now been provided to us by Mr. Malcom Merry. There also fell to be considered in this connection the reasons for sentence in two High Court trials: R. v. Chan Chu Ming, Case No. 275 of 1989 and R. v. Tse Ka Wan, Case No. 265 of 1989.   Both of these had been dealt with together and both of them were offences of possession of dangerous drugs for the purpose of unlawful trafficking, both involved No.4 heroin. In the course of his reasons for his sentence, which obtained an amount of publicity, Duffy, J. took issue with the decision in Cheng Yeung and came to the conclusion that it was no longer correct and should not be followed. We shall refer to these cases at a later stage in this judgment.

Conviction 230/89

7. First to deal with the application in respect of his conviction by Lau -  "the applicant".

8. The evidence against him came from his co-defendant, Hoo See Chong, who was called as a Crown witness subsequent to his plea, and from Ho Kwok Keung known as "Fei Chai Keung". The issue whether one or both of those were to be classified as accomplices was properly left to the jury.

9. There had been various preliminary meetings between Fei Chai  Keung, who was a seaman employed by Shell, the applicant and one Ip Wai Yee. The result of those meetings was that Fei Chai Keung was asked and  eventually agreed to carry "goods" to the United States of America. Then there  was a meeting at an hotel where the owner of the goods was introduced as  "Kwan Ho". No fee was then arranged. Later Fei chai Keung asked for a loan  and a further meeting was arranged with Kwan Ho at which the applicant and Ip  were present. It was said that the "things" were ready but later it was said that the  goods were trapped in China. There was to be a further introduction to another  person who wanted. "goods" carried.

10. Fei Chai Keung then stayed for some months at a flat in Kam Lam Street where Ip also lived. This flat was in the possession of Lau Chi Kin who was a relative of the applicant. Yet another meeting occurred at which Fei Chai Keung first met Hoo, his subsequent co-defendant. Discussions took place as to the carrying of the "things" to the United States. Hoo gave the applicant a bundle of $1,000 notes from which the applicant gave Fei Chai Keung $3,000 "for the time being". Fei Chai Keung said that this was not enough because he owed debts. The applicant paid off those debts.

11. At yet another meeting some days later the taking of goods was again discussed. Hoo and the applicant were present.

12. By the end of August Fei Chai Keung had grown impatient with the delay and asked where the goods were and, for the first time, what they were. The applicant told him it was No.4 heroin. On hearing this, Fei Chai Keung became scared.

13. He met Hoo the next day and he confirmed that it was No.4 heroin and tried to reassure Fei Chai Keung. A quantity of 18 kilograms was mentioned as the amount to be taken on a first trip with a further trip mentioned when 20 kilograms was to be carried if the first trip were successful.

14. That same night Fei Chai Keung met the applicant. Ip was present. A price of $9,000 a piece was offered - and the word "piece" he said was not understood by Fei Chai Keung - and this was agreed.

15. After this meeting Fei Chai Keung gave the matter some further thought and eventually, in September, he contacted the Narcotics Bureau of the Royal Hong Kong Police Force. From then on officers of the Narcotics Bureau were aware of what was taking place.

16. On either the 11th or the 12th September Lau met with Hoo and was fitted out with arm, leg and waist bands. A test of their package carrying capacity was undertaken. A black brief case was bought to hold the various items - this on the next day was shown to the police. The price rose to $10,000 per "piece".

17. On 13th September Hoo gave Fei Chai Keung instructions as to what he was to do in United States. On 14th September further instructions and, more importantly, the drugs were given to Fei Chai Keung whereupon Fei Chai Keung called the applicant to come and check the goods to see if they were genuine. This the applicant did. On the following day the applicant, joined by Hoo, gave Fei Chai Keung US$500. Later, at the flat in Kam Lam Street Fei Chai Keung gave $200 of this to the applicant at the time when Hoo was making a telephone call. Fei Chai Keung gave Hoo some photographs of himself with the idea of implicating Hoo because by that time Fei Chai Keung knew that the police were about to raid the premises.

18. The police carried out their raid very soon afterwards and Hoo, the applicant and Fei Chai Keung were arrested.

19. On all of this Fei Chai Keung was cross-examined at length.  Discrepancies as between his witness statement and his evidence and "the oddities", as they were described, in his evidence were fully drawn to the attention of the jury by counsel then appearing for the applicant.

20. Hoo in his evidence generally followed the lines of the evidence of Fei Chai Keung where it involved the applicant and he also spoke of his own involvement with him. It was his evidence that the man Kwan Ho, whom he named as Chan Wai Kwan, was the mastermind. There were differences between himself and Fei Chai Keung as to the price per "piece", as to the participation of Ip Wai Yee and as to the giving of a passport and a note, which was a code, to Fei Chai Keung. There were also discrepancies between the evidence Hoo gave in Court and the contents of his witness statement. Again all these matters were fully canvassed before the jury and were brought to their attention in the course of the summing up by the trial judge.

21. The rest of the evidence at trial came from members of the Royal Hong Kong Police Force and was not seriously disputed. PC20693 told of the finding of three US$100 notes and a piece of paper with the applicant's handwriting on it, Exhibit P141, on the applicant at the time of arrest. Also 'were found the keys to the flat. The piece of paper had on it the New York contact address and telephone number.

22. PC13421 gave evidence of finding on Hoo of U5 dollar notes and exhibit P 140 a piece of paper which also contained the address and the telephone number of the flat in America.

23. At the flat was found a blue travel bag containing 18 packets each with one block of No.4 heroin, clothing and body pack equipment. Also found was the black brief case.

24. PC17802 gave evidence of keeping surveillance on the applicant and of seeing Hoo and Fei Chai Keung entering the building which contained the flat. He arrested Hoo.

25. The applicant gave evidence at trial and, while accepting that he knew Fei Chai Keung and Hoo, his defence was that this was a frame up and he knew nothing about the drugs which were to be carried to the United States by Fei Chai Keung. The US dollars found on him were a form of payment of compensation by Fei Chai Keung to him and had nothing whatsoever to do with drugs. The New York address which was found upon him had been given to him by Fei Chai Keung as his contact address and he had simply copied it down in his own handwriting on a piece of paper though he was unable to read that which he had copied down.

26. Mr. Ramanathan before us has taken exception to directions given by the trial judge on the issue of corroboration. He submits that it was wrong in law to direct, first, that the finding of the New York address upon the applicant could amount to corroboration of the evidence of the two accomplices because the making of this paper came from one of those very accomplices; second that the trial judge also erred in law in directing the jury that this exhibit could corroborate the evidence given by Hoo that Lau was aware of the enterprise and was an active participant; third that he wrongly directed the jury in law that the US$200 found on the applicant was capable of corroborating Fei Chai Keung's evidence that he gave the applicant the money and, fourth, wrong to imply that it could also corroborate the evidence of Fei Chai Keung that the applicant was to be his contact.

27. In giving that last direction Mr. Ramanathan submits the trial judge failed to consider, and consequently to draw to the attention of the jury, that the source of this money was the accomplice Fei Chai. Keung and that the evidence was therefore not independent as explained in R.v. Baskerville [1916] 2KB 658.

28. He submits, fifth, that the judge failed to warn the jury that even if they found Fei Chai Keung not to be an accomplice they should go on to consider the possibility that he might be a tainted witness with a purpose of his own to serve. He seeks to argue that these matters, collectively, should lead this Court to the view that the conviction of the applicant was unsafe and unsatisfactory.

29. Dealing with Mr. Ramanathan's fourth point first. The trial judge had carefully and concisely warned the jury of the dangers of convicting on the evidence of an accomplice without there being corroboration or confirmation of that evidence. He had, properly, defined "corroboration" concluding that portion of his direction by saying:

"I repeat that because it is very important: independent evidence of a material fact that implicates the defendant and tends to show that he is guilty of the offence."

He left it entirely to them as to whether they found Fei Chai Keung to be an accomplice telling him that, if they found he was ever a member of the conspiracy even for a short time, then they must consider him to be such. Later, he directed them that, if they believed that he never intended to carry out the unlawful agreement, an intention evidenced by his report to the Narcotics Bureau, he would not be an accomplice but that they should look closely at his evidence and

"If you find you disbelieved him, you may infer that the reason he went to the Narcotics Bureau was not because he hated drug traffickers but for reasons of greed; for example, he may have felt that the reward for information would be greater than his fee as a courier. Although he denies that this was his motive, you have heard that reward money will probably be paid in this case. There is no actual evidence that this was his motive but if you disbelieve him, it would not be unreasonable to infer that at an early stage he was party to the conspiracy and later decided to pull out. In that case, he is an accomplice and you must look for corroboration of his evidence also."

30. In our judgment, the nature of the witness Fei Chai Keung was left entirely for the decision of the jury. They were fully appraised of matters pertaining to him and of the possible motives for his giving the evidence he did, be he accomplice or not. They could have been under no illusion, in the light of the directions given by the trial judge, that care was needed in their consideration of his evidence insofar as it implicated the applicant.

31. The trial judge went on, as he was required to, to point out to the jury matters which he considered to be capable of amounting to corroboration leaving it to them to decide whether they so found or not.  He told them that as far as Hoo was concerned he could be corroborated by Fei Chai Keung provided that they found Fei Chai Keung was not an accomplice.

32. As regards Fei Chai Keung he told them that there were two matters which could corroborate his evidence. First: the finding of the three US$100 notes on the applicant which could corroborate Fei Chai Keung's evidence that he 'gave him US$200 on the morning of 15th being part of the US$500 he had received from Hoo; second: the finding on the applicant of the New York address "may corroborate" the witness' evidence that he was to live near this address in New York, an address which was also found on Hoo, and that the applicant was Fei Chai Keung's contact. He also informed them that this last matter might also corroborate Hoo's evidence that the applicant was aware of the enterprise and was an active participant. He told them that it was a matter for them whether or not they believed the evidence. It was open to them, on the defence evidence, to find an innocent explanation.

33. In Baskerville, at p667, the classic test of that which is corroboration, a test adopted and followed by the Courts over the years, is set out. Evidence which tends to implicate a defendant, "that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." Lord Reading, L.C.J., in delivering the judgment of the English Court of Criminal Appeal, went on at the same page to say this:

"The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. A good instance of this indirect evidence is to be found in Reg. v. Birkett (8 C. & P 732). Were the law otherwise many crimes which are usually committed between accomplices in secret, such as incest, offences with females, or the present case, could never be brought to justice."

34. In Birkett the prisoner was indicted for knowingly receiving stolen sheep. It was proved by an accomplice that he had gone with the prisoner's brother and that. they had stolen two sheep, one large one small. One of the sheep was given to the prisoner who took it home. The accomplice also said where the skins of the sheep were hidden and which skins were later recovered. It was proved that, when the prisoner's house, in which his father also lived, was searched - as was the house of the accomplice - quantities of mutton were found - this forming the parts of the two sheep corresponding in size with the stolen ones.

35. Patteson J, ruling on a submission that the finding of the mutton was not sufficient confirmation of the accomplice evidence, said

"If the confirmation had merely gone to the extent of confirming the accomplice as to matters connected with himself only, it would not have been sufficient. [733] For example, the finding of the skins at the place at which the accomplice said they were would have been no sufficient confirmation of the evidence against the prisoner, because the witness might have put the skins there himself; but here we have a great deal more; we have a quantity of mutton found in the house in which the prisoner resides, and that I think is such a confirmation of the accomplice's evidence as I must leave to the jury."

36. It is of passing interest that the trial proceeded and the prisoner was acquitted.

37. Lord Reading referred to the ruling of Patteson J. with approval.

38. Here, we accept that, had the evidence concerning the notes and of the written address come solely from Fei Chai Keung, then neither of those matters could have amounted to corroboration. They would not have the quality of independence which Baskerville requires.

39. The evidence of the finding of them on the applicant came from the police officers. While their evidential significance is attached to the evidence given by Fei Chai Keung, the fact of their finding is something which is totally independent from him. The applicant gave an explanation for having both these items on his person. This lay for the jury's consideration and it was open to  them, if they so desired, to accept that explanation. But, having been fully directed on the issues, they clearly by their verdict accepted the evidence of both Fei Chai Keung and of Hoo. We are not, of course, aware as to whether they accepted them as witnesses of the truth on their own standing or because the evidence they gave was thought to be corroborated. But despite the criticisms of Mr. Ramanathan, put with his usual persuasiveness, we do not accept that the trial judge was wrong to leave to the jury this circumstantial evidence of the applicant's connection with the offence as being capable of corroborating the evidence of accomplices, if they so found them to be, of the applicant's connection with the crime.

Sentences

1. CA230/89

40. The offences which concerned Lau and Hoo alleged, the conspiracy to have taken place between 1st July and 16th September 1988; the trafficking on 14th September 1988. Their convictions took place in respect of Lau after his trial on 20th April 1989 and in respect of Hoo on his plea on 3rd April 1989. Those dates, and a fortiori the dates when the offences were committed, were prior the publication of the judgment. in Cheng Yeung. Sentences were imposed on each of them on 21st April 1989. By then that which was said in Cheng Yeung was known. It was brought to the attention of counsel by the trial judge. Counsel then appearing for Lau and Hoo submitted that Cheng Yeung guidelines should not apply. Those submissions have been repeated to us by both Mr. Ramanathan for Lau and Mr. Plowman for Hoo. They both contend that, in taking 20 years as a starting point, the trial judge began too high. On behalf of Lau it is further submitted that the part played by him was that described in the summing up as "a rather shadowy middleman".   For Hoo it has been submitted with some force by Mr. Plowman that sufficient credit was not given for the assistance which he gave to the police and subsequently, by the giving of evidence in the course of the trial, for the prosecution. Miss Crebbin, who appeared for the Crown below, had particularly drawn the latter to the attention of the trial judge. Further that Hoo, in answer to questions asked of him after the trial concluded, had given the police details of the man supposed to have headed  this particular syndicate but that he had not been able to give any way of contacting him. The man has not been discovered.

41. In passing sentence the trial judge made reference to the retail value, of which there was evidence before him, of the drugs on the streets of New York as being between US$11.5 and US$12 million. He accepted that both Lau and Hoo were probably middlemen but he saw no reason to distinguish between them on the issue of culpability and he doubted Hoo's evidence to the effect that his reward would be merely $30,000. It has been advanced to us that there was no evidence to show that this evidence was incorrect.

42. The trial judge accepted that both had clear records and he went on to follow the guidelines laid down in Cheng Yeung which brought him to his starting of 20 years' imprisonment, the term he imposed on Lau and which bore upon the terms imposed upon Hoo.

43. In our judgment the trial judge fell into error when he applied the guidelines in Cheng Yeung. They were not operative at the time of offence or conviction. As was said by Cons V.P. in delivering the judgment of the Court in. R.v. Chan Ka Wai (CA 530/88 - unreported) the Court takes as settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence.

44. Both Suvit Utthayanwatapa and Another v. R. [1982] HKLR 323 and R. v. Pravit Pramechit [1989] 2 HKLR 169 (though it was heard in 1982) are in point on conversion.

45. Suvit was concerned with a charge of possession of dangerous drugs for the purpose of unlawful trafficking. The drugs were  33.21 grammes of a mixture containing 107.31 grammes of esters of morphine. A plea had been entered and the sentence was seven years' imprisonment. On appeal it was held, there being no evidence of conversion, that the guidelines in Chan Chi Ming v.R. [1979] HKLR 491 should be followed unless reasons for imposing a higher or a lighter sentence were shown. Further that, if evidence were adduced to show that the mixture was likely to be converted into a considerably greater quantum of mixture to be commonly consumed, a penalty heavier than that in the guidelines might be imposed.

46. Pravit concerned a charge of a similar nature and the mixture was 226.1 grammes containing 190. 65 grammes of esters of morphine. Again a plea was entered and the sentence was seven years' imprisonment. There had been agreed evidence at trial of a conversion which resulted in a total mixture of 687.3 grammes containing 266.59 grammes of salts of esters of morphine. On appeal it was held, applying Suvit, and rejecting the submission that the guidelines should be applied to the total mixture disregarding the fact that its contents was esters of morphine, that once there was evidence of conversion the sentence should be based upon the converted volume and applying the Chan Chi Ming guidelines to the result.

47. So, prior to Cheng Yeung, it has been generally the position that the Chan Chi Ming guidelines were looked at and extended to take into account the conversion. it is, of course, relevant that both Suvit and Pravit were referring to esters of morphine and not to the almost pure form of salts of esters of morphine which makes up No.4 heroin. This can be diluted, without a chemical process, into a saleable mixture of No.3.

48. In our judgment, based on the guidelines and practice then prevailing, the starting point of 20 years here was too high.  In Lau's case, allowing for the part he played and the quantities involved - and in no way derogating from the seriousness of the offence - we think a sentence of 14 years' imprisonment after trial would have been appropriate. Hoo falls into a different category because of the risk inherent to him in giving evidence in open Court and, further, his plea. As the trial judge rightly said conduct of this sort ought to be encouraged, it is of great assistance in cases of this kind where proof of the offence may be difficult. Additionally a plea may well be indicative of remorse and it assists in avoiding the public expense and inconvenience to witnesses occasioned by a lengthy trial. Hoo, of course, was convicted of two offences but, as the trial judge said, the second offence, the trafficking, merited no additional penalty because only one transaction was involved. Bearing in mind all the considerations peculiar to Hoo we think a sentence of 8 years' imprisonment would be appropriate. We grant leave to Lau and Hoo and treat the hearing as that of the appeals which we allow to the extent indicated.

2: CA : 269/1989

49. In Criminal Appeal No. 269 of 1989 both Yeung Wai Shing and Ho Wang Cheuk pleaded guilty to trafficking in 1,365.94 grammes of a mixture containing 1,220.46 grammes of salts of esters of morphine on 29th September 1988 at the Lo Wu Border crossing point.

50. They had been kept under surveillance as they returned to Hong Kong from China. They were seen together boarding a train to Kowloon and the surveillance continued until they got off at Mongkok. There they were apprehended. On Yeung were found 4 packets of drugs strapped to his waist and legs. On Ho were found 2 packets of drugs strapped around his stomach. The total contents of both was that set out in the particulars of charge. They admitted that they had both left and returned to Hong Kong on the same day. Yeung stated his reward was $4,000. What they did was on the instructions of a third person who had told them to go to Guangzhou, buy the drugs and return with them to Hong Kong. They divided the drugs between themselves at Shenzen.

51. Both convictions were on 19th April 1989 and the sentences pronounced on 3rd May. By then Cheng Yeung was known. Wong, J. refused to accept the proposition advanced to him, as indeed it had been to us that, that these offences, having been committed prior to Cheng Yeung, the guidelines in that decision should not be followed. At trial the submission was supported by the Crown. The judge followed Cheng Yeung, having heard evidence of conversion which showed that the amount involved would have resulted in 20 kilograms of No.3 heroin. He thus arrived at a sentence of 13 years' imprisonment for Yeung, allowing a discount for plea. He did not state what his starting point would have been.  In sentencing Ho Wang Cheuk to 9 years' imprisonment he also took into account the plea and, further, that Ho had given the police valuable information.

52. While these sentences were said to be based on Cheng Yeung they do not seem to us to have, in fact, followed the guidelines there set out. Allowing that the only mitigation for Yeung was his plea we would have thought that the judge might well have had in mind a starting point after trial of 15 years. But be that as it may, we also accept the submission, as we did in the other application, that the guidelines and practice pre Cheng Yeung should have been borne in mind and not those post Cheny Yeung. Had the trial judge taken that course, it may well be that his sentences would have been lower. We think this should be reflected in the sentences on both of these men and to that end we would reduce the 13 years passed on Yeung to one of 11 years and the 9 years passed on Ho to one of 7 years.

53. We grant leave, treat the hearing as the hearing of the appeal and allow the appeals to the extent indicated.

Sentencing Guidelines

54. We now come to matters of more general importance.

55. It appeared that a reconsideration of the general tariffs applicable on conviction for the offence of possession of dangerous drugs for the purpose of unlawful trafficking is called for. Evidence now available shows that there has been a sea-change in the use of drugs since March 1989.  It had come to the notice of this Court in the course of its consideration of other sentencing appeals and was a growing cause for concern before Duffy J. said that which he did in R. v. Chan Chu Ming, (High Court Case No. 275 of 1989) and R. v. Tse Ka Wah (High Court Case No. 265 of 1989). However, the publicity given to those cases in the media, and indeed throughout the profession, has brought this vexed matter to a head. Guidelines are a matter of legitimate public interest and with which we have sought to deal at the first opportunity. Albeit not directly on point, these appeals provide the vehicle. To that end the date of 27th March was specially fixed.

56. An adjournment was necessary because the instant applications were not so directly on point as we thought there to be. We have, however, in the interest of justice, taken the opportunity now with the help of an amicus, and under the provisions of section 83V of the Criminal Procedure Code, to hear evidence as to the present situation. We are grateful for the assistance provided by Mr. Saw for the Crown, by Mr. Merry, the amicus, and by the three witnesses, Chief Inspector Stewart Young, currently in charge of the Research and Administration Group of the Narcotics Bureau of the Royal Hong Kong Police; Dr. Lee Hee Ming, who is a chemist employed by the Forensic Science Division of the Hong Kong Government Laboratory and is presently Senior Chemist in charge of the Kowloon Laboratory and head of the Opiate Drugs Section - who incidentally also gave evidence before Duffy, J. -; and Dr. K.B. Hollinrake, Superintendent of Shek Koo Chau Drug Addiction Treatment Centre.

57. Duffy J. concluded that it was wrong, both at the time of the trial he was conducting and at the time of Cheng Yeung, to say that No.4 heroin is a different substance from No.3 heroin. He further was of the view that this Court had there been misled. With respect this was a misunderstanding of that which was said in Cheng Yeung. That Court was considering the differences between the two forms of heroin not in chemical but in realistic terms. There is a vast difference in price between No.4 and No.3., - $33 per gramme of No.3 mixture: $262 per gramme of NOA - and the dilution of No.4 by the use of additives can result. in a vastly greater mixture of No.3 for sale. What is more it has until recently been the position that a very large proportion of No.4 - in Hong Kong was solely for export particularly to the United States of America. There was in March 1989, as was stated at page 260 of Cheng Yeung:

"... little or no consumption of, or market for, No.4 heroin in Hong Kong itself"

58. The statistics available in the course of the Cheng Yeung hearing were, at the time, correct. The Court in Cheng Yeung was not misled in any way. All the indicators of the sea-change show that it has taken place after that date. Some of the new information was before Duffy, J. but even that which fell for his consideration then has by now altered.

59. It was an unfortunate expression of judicial opinion to say that the facts upon which the Court of Appeal reached its decision in Cheng Yeung were, "if they were not already then, are certainly now, fundamentally in error". With great respect, the course that Duffy, J. should have taken was to follow Cheng Yeung, explaining why he thought it should be reviewed and indicating what order he would have made were he free from its binding authority (per Fuad, J.A. (as he then was) in The Queen v. Pau  Chi Keung and Cheung Hoi Lai [1987] HKLR 1148). Further, as was also said by Fuad, J.A. in his separate judgment in Kwong Tai San v. Wong Kwok Lan and Others, Civil Appeal No. 113 of 1982 (unreported),:

"It is not helpful in maintaining confidence in the administration of justice to suggest, by implication, (or directly) that decisions of the Court of Appeal by which a Court is bound lead to injustice."

We shall say no more on this.

Background and change

60. The addict requires 0.5 to 1 gramme of salts of esters of morphine - and we shall refer to this as "the narcotic" - per 24 hours to sustain his addiction with one gramme being the upper average limit - this contained in whatever the mixture may be. Dr. Hollinrake has told us that the immediate effect of drugs on a newly initiated addict is to cause a sense of euphoria. This state diminishes rapidly within the first two months of the addiction process. The addict then finds it necessary to increase his dose but, despite this, the euphoric effect ceases. If he attempts to cut down he will within a period of about 8 hours suffer from withdrawal symptoms. The established addict finds after some experimentation the level or plateau at which he must fix his intake to avoid those symptoms. This normally takes about six months. No.4 heroin, being of far greater narcotic purity than No.3, is more convenient to achieve this and the bulk of the mixture the addict finds it necessary to have available to him is very much smaller.

61. Although this does not apply to every single addict, usually after detoxification the psychological urge to take drugs arises again because the euphoric effect can be rediscovered. Then the cycle recommences.

62. Some of the harm the addict suffers is psychological, some is the result of neglect and some results from the method of intravenous injection. The harm to society is that the addict needs funds to feed his habit and frequently turns to crime, even to trafficking in the very drug which has brought him to this pass, to provide him with those funds. Families are neglected, steady jobs hard to hold and the fabric of society suffers.

63. There is physical danger, where injection rather than "chasing the dragon" - or smoking the drug - is the form of ingestion, that dirty needles, and the sharing of needles, can lead to an AIDS infection. Also the less pure the mixture the greater the possibility that impurities will enter the blood stream. If an addict wishes to inject No.3 heroin he must first dissolve the mixture in a minimum amount of boiling water before taking it up in the syringe: When he does this the mixture cools down and the caffein in it reprecipitates. This process blocks the needle making injection difficult and can lead to the injection of solid particles into the blood.

64. When Chan Chi king was decided in September 1979 the purity of No.3 heroin, which was the only type then used by the addict, was 23.9% on average. This rose, in 1982, to as high as 29.3%. Since then it has steadily decreased until in early 1989 the purity was 4.9%. It is now about 4% or less. The consequence of this is that the addict needs larger and larger quantities of the mixture composing No.3 in order to obtain the amount of narcotic necessary to achieve his plateau. He is being cheated by the drug dealers.

65. Over the last 10 to 15 years there has been a gradual change in method from "chasing the dragon" to intravenous ingestion.  Presently 92% of addicts passing through Shek Ku Chau Drug Addiction Treatment Center use the intravenous method. Dr. Hollinrake was careful to say that this percentage may not necessarily be representative of the total picture in Hong Kong.

66. Chan Chi Ming makes no reference to purity. It was assumed in those days, as indeed the statistics for some years thereafter warranted, that the narcotic element in a mixture would be more or less constant and that purity was not an issue. It was on this basis that this court in Chan Chi Ming held that the mixture, for it was that which was sold on the street, should be looked at rather than its narcotic content. For over ten years the guidelines there laid down have been followed either directly or by analogy. But now even the conversion process, which is the analogous application of Chan Chi Ming, has become outmoded. If the guidelines in Chan Chi Ming were to be applied to the present day purity rate of No.3 mixture - the difference between 23.9% then and 4% now - injustice might well occur.

67. This is not to hold that the attitude of the Courts over the years that purity did not matter was, in context wrong. But now the circumstances are different.

68. At the latter end of 1988 and in January, February and March of 1989 a very small proportion of seizures and - it is upon these seizures that the statistics are based - was of No.4 heroin. Hence, the reference in Cheng Yeung to little or no consumption, or market for, No.4 heroin in Hong Kong itself. In march, April, May, June, July and August of 1989 there were very minor seizures of the substance called, for convenience, "SEM" (which simply means salts of esters of morphine) and the seizures of No.4 showed a slight increase but No.3 still predominated. "SEM" is a mixture containing the narcotic but less pure than No.4 and of greater purity than No.3.

69. In July of 1989 seizures of No.4 increased appreciably. From then until January of 1990 this trend continued on a strongly upward line so that, by January 1990, the seizures of No.4 were for the first time greater than the seizures of No.3. In tandem, between September 1989 and January 1990, SEM seizures also dramatically increased. By January of 1990 SEM had itself overtaken No.3.

70. It may well be that the addict, thinking he is buying No.4, is yet again being cheated by the dealers by being given SEM instead, thus mirroring the old diminution of No.3 purity. But it is, as yet, too early for a definite pattern to have become established. It is a factor which we shall have to bear in mind in the difficult exercise we have set for ourselves, the object of which is to assist trial courts in achieving consistency and fairness in sentencing and the profession in the giving of advice to lay clients.

71. In parenthesis it might be added that esters of morphine, the subject of the decisions in Suvit and subsequently Pravit, has ceased to feature. There is little or no manufacture of dangerous drugs now taking place in Hong Kong. We do not include in "manufacture" the dilution, or cutting, of No.4 to create either SEM or No.3. This is still being done by the addition of caffein together with one or more of the additives quinine, strychnine, antipyrine and ephedrine - even plain tea to give colour. Briefly, this mixing process is carried out in a solution, because No.4 heroin is in the form of powder or small granules. It is mixed with the various additives in hot water forming a paste. The paste is then pressed through sieves or graters to form larger granules which are then dried.

72. We have had shown to us packets of No.4 heroin which take the form of small plastic "straw" or paper packets. The average weight of each is 0.2 to 0.3 of a gramme and the narcotic purity is 80% to 90%. These "straw" packets are also used for SEM whose narcotic purity is presently between 50% and 70%. The average weight per packet of No.3 heroin is approximately 3 to 4 grammes at a purity of 4% or less.

Guideline considerations.

73. What then should be done to provide guidelines to take into account the rapid changes which have occurred and to at least attempt to provide assistance which will cover future trends? As this exercise is of considerable importance we have taken the opportunity to seek and receive the comments of other members of the Court of Appeal before arriving at the guidelines we shall indicate.

Legislation.

74. First the Legislation needs consideration for while the presumptions contained in the Dangerous Drugs Ordinance Cap 134 - the Ordinance - go directly to proof of guilt nevertheless their provisions guide the decision on venue and the nature of the charge to be preferred.

75. In context, the Ordinance provides for two offences, both with the same penalty. Section 4 provides that no person shall, without a licence, on his own behalf or on behalf of any other person (a) traffic in a dangerous drug; (b) offer to traffic in a dangerous drug ...; (c) do or offer to do any act preparatory to or for the purpose of trafficking in a dangerous drug---.

76. Section 7 provides that "no person shall have a dangerous drug in his possession for the purpose of unlawful trafficking therein, whether by himself or some other person".

77. Given the definition of "trafficking" as contained in Section 2 and the comprehensive wording of Section 4, it has always been a little difficult to understand why the Legislature should have created two offences.

78. In R.v. Yeung Ying Kan and another (C.A. 120/84 - unreported) another division of this Court, having heard argument as to the difference if any as between the two and having considered that which was said by Huggins J. (as he then was) in Wong Tun v. The Queen (C.A. 228/75 - unreported), and the decision in R.v. Law Chi Kenny (C.A. 1615/83 - unreported), was of the view that a distinction could be drawn. This on the basis that Section 7 charges frequently arose where the quantity fell into the category which raised the presumptions in the Ordinance whereas Section 4 charges are the end result of the activities of middlemen such as couriers, store-keepers and even small time sellers involved in Section 7 offences. We held that the Char Chi Ming guidelines were, of themselves, inapplicable to a section 4 charge it being the more serious.

79. As the author of that judgment I now feel free to say that it was possibly a strained attempt to give some element of reason to the decision of the Legislature to provide for two separate offences.

80. The sooner there is but one offence, even if it entails an amendment of the definition of "trafficking", the better. The guidelines we suggest make no distinction between the two offences.

81. The Ordinance provides for proof of guilt by way of rebuttable presumptions concerning possession of dangerous drugs for the purpose of trafficking therein. If there is direct evidence of trafficking it is highly unlikely that the person charged has not had, at some time during the course of the offence, possession of the drug itself. The presumptions are simply an aid to proof.

82. These presumptions are, again in context, first Section 46(c) - five packets containing any of the substances itemised in (c) (i) to (v) either alone or contained in a preparation, mixture, extract or other material; second: Section 46(d) - one half of a gramme of any of the substances itemised in (d) (i) to (v) either alone or contained in a preparation, mixture, extract or other material; and third: - Section 46(e): two and one half grammes of a preparation, mixture, extract or other material containing not less than one fifth of one per cent of morphine or a salt of morphine or any proportion of diacelyl-morphine or an ester of morphine or a salt of an ester of morphine.

83. We have been told that the provisions of Section 46 are under active consideration at this moment. It could well be borne in mind by trial courts that, where No.3 heroin is concerned, because of the bulk the addict now requires resulting from the low narcotic purity and considerable difference in price between it and No.4, the presumptions might be the more easily rebutted.

84. But that being as it may, the quantities referred to in Section 46 must, of necessity, be taken into consideration by this Court in arriving at guidelines.

Chan Chi Wing

85. This was concerned with appropriate sentences after trial in relation to No.3 mixture containing salts of esters of morphine. While events may now have overtaken the basis for the guidelines therein set out, a great deal of which it in general said is still good law.

86. It is still the mixture, whatever its narcotic content, which is sold in the streets. Trafficking in dangerous drugs is still an offence of the utmost gravity. Those who take part in it should still expect no mercy from the Courts. Previous convictions for drug trafficking may still lead to an increase within the sentencing band. Wide variations in sentence are still to be avoided.

87. There are, apart from the guidelines themselves, only two matters which require further consideration: the existence of a clear record and the allowance if any to be made for the offender who has "very small" quantities and who may himself be an addict, selling on a small scale to fund his addiction or being paid by his masters by the supply of drugs for his own use.

88. If there exists a clear record or a plea then the sentencing Court may take one or both such factors, as the case may be, into account when arriving at what it considers to be the proper discount.

89. If the offender has very small quantities - which in Chan Chi Ming was defined as up to 30 grammes of a mixture - then we think that - while in the light of the bulk amount of No.3 presently required to feed an addiction, the presumptions may be the more easily rebutted - with respect to the Court in Chan Chi Ming, this should not affect sentence after trial in the sense there indicated. If an offender receives payment in kind for committing the very offence with which he himself is charged or if he, by selling, perpetuates the very evil at which it is the duty of the Courts to strike, it can avail him little.

90. The conclusion which we have reached is that, after performing yeoman service, Chan Chi Ming should be retired and its guidelines replaced by those to be set out in this judgment.

Cheng Yeung

91. As will be by now clear the attempt in Cheng Yeung to provide for current trends, and that by the use of the principle of notional conversion first adumbrated in Suvit and Pravit to supplement Chan Chi Ming, has itself rapidly been overtaken by events and the basis for its reasoning as to guidelines has been substantially altered. But one of the issues therein discussed - the "X" factor, or the limit on sentencing before the "throw away the key" approach bites, - is still very much alive.

92. A great deal of the judgment in Cheng Yeung centered around the question as to how high should sentencing bands go so as to properly allow for the "very large quantities" category. Having given considerable thought to this the Court there arrived at 20 kilogrammes as the cut off figure - a balancing exercise as Hunter, J.A. indicated at P264 when he said

"On one view we accept that very considerable harm may be occasioned by a quantity of ten kilogrammes. Conversely, in relation to a Section 7 possessor, a point is on any view reached were sensible distinctions based upon quantity can no longer be drawn. "A point is reached which invites a severe penalty, and at which the possessor cannot complain if someone yet more deeply involved suffers no more."

93. It falls to us to consider whether the suggested sentence of 20 years for those at or beyond the cut off point provides, in the light of the now existing circumstances, sufficiently for the band of sentencing those circumstances demand.

The tariff

94. The tariffs which we are about to set out are intended for imposition after trial.

95. Within the suggested bands factors which the sentencing judge may properly take into account are the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.

96. This Court must guard against two things: first the tailoring by the dealer of the quantities he sends out into the street and procures for his sellers to sell, his courier's to carry or his store-keeper's to keep so as to reduce, for them, the length of the inevitable custodial sentence which will be passed on conviction - playing the "Bands" in other words.

97. Second: in providing an entirely new tariff, as we feel we must, we have sought to avoid a complete overturn of earlier guidelines which have resulted in past sentences, particularly those sentences imposed since April 1989.

98. We feel that we should depart from the concept of notional conversion for this is proving to be too variable - the narcotic purity changing from month to month, from mixture to mixture and from locality to locality.

99. What then should replace, as the basis for sentencing, the existing guidelines?

100. It has been suggested that we use price, either to the consumer or in the export market. We think this basis to be fallible as it depends far too much upon outside factors; the harvest in the Golden Triangle; the overseas demand; and the adulteration of the mixture amongst others.

101. It has been suggested we simply retain the existing mixture basis with appropriate variations. This has its attractions, not least by providing overall continuity, but it seems to us to have too many flaws, for example the retention of the concept of notional conversion and a blurring of the differences between the three types of narcotic purity which now exist. The first would need in every case evidence to be called by the Crown as to the conversion method and the resultant value which, as we must now acknowledge, can lead to controversy and, possibly, injustice apart from the considerable administrative inconvenience.

102. In the light of all this the one constant is the quantity of narcotic. It is contained in all the mixtures whatever their size. And that is the basis for the tariff we now set out.

103. To allow for all the other factors which properly lie for the consideration of the sentencing judge, the bands of the sentences will be wider than those set out in Chan Chi Ming. We bear in mind that we are dealing with the trafficker and that the international trade in drugs needs to be actively discouraged.

104. Amounts of over 600 grammes fall into the "very large quantities" category. On a reconsideration of the line taken in Cheng Yeung and in the light of the information now available to us in our judgment, in appropriate cases which fall into that category, we consider that there can be an upward increase in the "cut off sentence" there suggested bearing in mind that the maximum sentence provided for by the legislation is life.

105. For case of reference, and these figures are approximate, rounded out and based on current purity levels,:

Representation:

G. Lugar-Mawson Esq. & D.G. Saw Esq. for Crown/Respondent.

K. Ramanathan Esq. assigned by D.L.A. for 1st applicant

M. Merry Esq. amicus curiae.