Read the full judgment text of CACC 000230/1989 on BabelCite. This Court of Appeal judgment was delivered on 29 May 1990 before Silke VP, Kempster JA, Power JA.
Criminal law – dangerous drugs – trafficking – conspiracy to traffic – appeal against conviction and sentence – corroboration of accomplice evidence – No.4 heroin – No.3 heroin – SEM (salts of esters of morphine) – purity – sentencing guidelines – retrospective application of guidelines – Chan Chi Ming guidelines retired – Cheng Yeung guidelines – new narcotic-quantity based tariffs – duty of trial judge to follow binding Court of Appeal authority. In CACC 230/1989, applicant Lau Tak Ming was convicted after trial (Bewley J) of conspiracy to traffic in No.4 heroin involving 18 blocks (5.9 kg) intended for export to the United States; he was sentenced to 20 years' imprisonment. Co-accused Hoo See Chong pleaded guilty to conspiracy and trafficking and was sentenced to 14 years' imprisonment on each count concurrent. In CACC 269/1989, Yeung Wai Shing and Ho Wang Cheuk pleaded guilty to trafficking in 1,365.94g of mixture containing 1,220.46g of salts of esters of morphine at Lo Wu on 29 September 1988; they were sentenced to 13 and 9 years respectively (Wong J). All four sought leave to appeal against sentence (Lau also against conviction). The Court of Appeal (Silke VP, Kempster and Power JJA), with the assistance of an amicus curiae and expert evidence under s.83V of the Criminal Procedure Code, addressed both the individual appeals and the need for revised sentencing guidelines. On conviction: the Court held that the trial judge had not erred in directing the jury that the New York address found in the applicant's handwriting and the US$200 found on the applicant could constitute corroboration of the accomplices' evidence; under Baskerville and Birkett, such matters could amount to circumstantial confirmation of the applicant's connection with the offence, with the innocent explanations fairly left to the jury. Lau's conviction was therefore safe. On sentence: the Court held that, applying settled law (R v Chan Ka Wai; Suvit Utthayanwatapa; Pravit Pramechit), the Cheng Yeung guidelines could not retrospectively apply to offences committed before that decision, and the trial judges had erred in taking a 20-year starting point. Lau's sentence was reduced to 14 years, Hoo's to 8 years (credit for risk in giving evidence and plea), Yeung's to 11 years and Ho's to 7 years. The Court further laid down new sentencing tariffs to replace Chan Chi Ming, holding that the basis for sentencing should be the quantity of narcotic (salts of esters of morphine) rather than the mixture, notional conversion or price, with bands of: (a) up to 10g: 2-5 years; (b) 10-50g: 5-8 years; (c) 50-200g: 8-12 years; (d) 200-400g: 12-15 years; (e) 400-600g: 15-20 years; and over 600g falling into a 'very large quantities' category permitting upward extension of the 20-year cut-off up to the statutory maximum of life. The Court also deprecated the approach of Duffy J in R v Chan Chu Ming and R v Tse Ka Wan in declining to follow Cheng Yeung, reaffirming (per Fuad JA in Pau Chi Keung) that a trial judge is bound by Court of Appeal authority and may only indicate what order would be made absent that authority.
Legal issues: Correctness of corroboration directions on accomplice evidence · Application of post-offence sentencing guidelines (Cheng Yeung) to pre-offence conduct · Replacement of Chan Chi Ming sentencing guidelines and basis for new tariffs · Duffy J's criticism of Cheng Yeung and the duty of lower courts to follow binding authority
Outcome: Lau's application for leave to appeal against conviction refused; Lau and Hoo granted leave to appeal against sentence and appeals allowed to the extent indicated; Yeung and Ho granted leave to appeal against sentence and appeals allowed to the extent indicated.
Cited by 66 cases