Re Hccc64/1978

HCCC000064/1978

High Court Criminal Case No. 64 of 1978.

Coram: Hon. Addison J. in Court.

Date of Judgment: 23rd November, 1978

Case No. 64 of 1978 (Sentencing)

23rd November, 1978

10.10 a.m. Court resumes

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JUDGMENT

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Accused present. Appearances as before

COURT: This court has been called upon to determine the factual basis for sentencing the 1st defendant for the offence of possession of dangerous drugs for the purpose of unlawful trafficking, to which offence he pleaded guilty on the 13th November, 1978. It is the contention of the 1st defendant that his participation in that offence was minimal and that accordingly his sentence should be slight. To this end, he gave evidence before me explaining his involvement. This was done after the jury had been discharged. He does not dispute he was in possession of the drugs for the purpose of unlawful trafficking but claims that the circumstances of his possession were such that he was, more or less, a knowing but reluctant pawn with little alternative but to do what he did, albeit wrongly and against the law. If, having heard his evidence and weighing it against the undisputed facts agreed to by both counsel for the prosecution and for the defence, I am left in doubt as to whether his version might probably be true or not, then I must sentence him on the factual basis he has advanced. There is no doubt in my mind that in those circumstances the sentence would be appreciably less. The burden is on the Crown to show beyond reasonable doubt that the defendant's involvement was not minimal as the defendant has invited the court to believe.

2. There is authority for this approach in England, see R.v. Gortat and Pirog, [1973] Criminal Law Review 648; R.v. Robinson, [1969] Criminal Law Reports 207 and the article "Establishing a Factual Basis for Sentencing" by D.A. Thomas in [1970] Criminal Law Review 80 at pages 85 and 87. There are cases likewise in Hong Kong supporting this approach and these are LO Yim-kai and others v.R., [1966] Hong Kong Law Reports 414 at page 424; R.v. Lamke, [1965] Hong Kong Law Reports 251 at page 255, a decision of the Full Court; and CHAN Kai-lun v.R., [1971] Hong Kong Law Reports 45. The commentary to R.v. Gortat and Pirog in [1973] Criminal Law Review 648 at page 649 is enlightening. It reads as follows:

"The general verdict given by a jury frequently leaves unresolved matters which are of great importance when the judge comes to sentence. Thus in the present case the jury would properly have found a verdict of guilty of conspiracy whether or not they found that the enterprise had been abandoned; but the abandonment of the enterprise might have been a very significant fact when the defendants were sentenced. Judges are discouraged from asking juries to return special verdicts; so in the normal course the judge must make his own mind up about the existence of aggravating or mitigating factors in the circumstances of the case. Questions of fact which do not affect liability to conviction but only sentence are decided by the judge, but usually in a more informal manner than apparently took place in the present case, where all the conditions of a jury trial seem to have been observed."

3. Certain qualifications attach to the evidence which may be considered in determining that factual basis. In Robinson's case, the Court of Appeal accepted that the prosecution could properly introduce evidence relevant to an issue in sentencing after conviction but emphasized that such evidence must be first-hand evidence, not hearsay, and must be sufficiently particularised for an accused to challenge it. Any endeavour to smear a defendant with the object of swelling his sentence would find short shrift with the courts. Then again where a single charge is preferred, the court may not, in assessing the sentence for that offence, take into consideration the commission of other offences not admitted by the defendant and which could be made the subject of prosecution but has not been done so. This principle was laid down in R.v. Hutchison, [1972] Criminal Law Review 258 where, instead of representative charges being preferred, a single count of incest was laid, but the trial judge sentenced the defendant on the basis he had habitually committed that offence.

4. Mr. Donnelly, who appears for the defendant, invokes these principles in this case. He contends it would be entirely wrong for this court to have regard to certain facts stated by the Crown and not disputed by him but which he claims are pertinent to the commission of an entirely different offence when deciding what punishment should be imposed for the offence of possession of dangerous drugs for the purpose of unlawful trafficking.

5. The matter arises in this way.

6. Initially, the defendant was additionally charged with the offence of manufacturing dangerous drugs. The particulars of that offence allege a manufacture by him of salts of esters of morphine on or before the 14th April, 1978 at a place unknown in the Colony. The 14th April, 1978 is the date of the charge of possession of dangerous drugs for the purpose of unlawful trafficking. The drugs involved in that count are 8,926.2 grammes of a mixture containing 7,725.9 grammes of a salt of morphine for the purpose of unlawful trafficking.

7. The basis for the manufacturing charge was the finding of certain items capable of being used for the manufacture of heroin in his hut, No. 406 at 2, Big Wave Bay, Shek O, bearing traces of salts of esters of morphine including some paper bearing traces of salts of morphine. Additionally, in a nearby hut, No. 399, to which the defendant and others had access, were found more pronounced items or paraphernalia used for manufacturing heroin. Some of these items contained traces of esters of morphine while others bore traces of salts of esters of morphine. Also in hut 399 were found various chemicals, namely, hydrochloric acid, quinine ethylcarbonate, strychinine hydrochloride and caffeine, which are commonly used in converting morphine into heroin. That then was the basis for the Crown's charge preferred against this defendant of manufacturing dangerous drugs.

8. However, the Crown did not proceed with that charge at the trial. For obvious reasons it was considered that the evidence fell short of what was required to sustain the charge and the Attorney General entered a nolle prosequi.

9. I find myself in agreement with Mr. Donnelly that in determining the factual basis for sentence for the offence of possession of dangerous drugs for the purpose of unlawful trafficking it would be incorrect to have regard to the contents of hut 399. That hut was not shown to be in the exclusive possession of the defendant. There is nothing, as far as I can determine, to show any association between those drugs in that hut and this defendant. But Mr. Donnelly's argument is that I should likewise ignore the evidence as to the equipment found in the defendant's home where he resides with his wife and two children. He further maintains that the finding of traces of salts of esters of morphine on the items listed at page 283 of the depositions and the finding of traces of salts of morphine on two items in that same room in his house, namely, on two pieces of wrapping paper and in granules of dirt taken from the floor, should likewise be excluded in determining the defendant's involvement in the possession for unlawful trafficking charge.

10. His reason for this submission is that these facts are relevant to a manufacturing charge and that reference to those facts would be equivalent to this court assuming he is guilty of another offence. He further argues that the presence of traces of dangerous drugs in the defendant's home is nothing other than suspicion and at most would relate to offences committed in the past.

11. Mr. Donnelly says the issue before me is to what extent was the defendant involved in the possession of dangerous drugs for the purpose of unlawful trafficking on the 14th April, 1978.

12. Mr. Gall, on the other hand, argues that these facts are not evidence of the commission of a further offence by the defendant. He clearly states that he does not allege the defendant did manufacture dangerous drugs. He conceded that the absence of splash marks on the walls of the defendant's home is indicative that manufacturing did not occur there. He says that evidence of the presence of the items in his home and of their condition is a fact which the court should take into account in ascertaining the defendant's involvement in the possession charge. His argument is that what was found in his home is a relevant fact as showing, or tending to show, a familiarity on the part of the defendant with drugs, that his association with the actual drugs in the vehicle was not fleeting and that his possession of those drugs was not as a mere driver transporting them from one place to another in the circumstances as alleged by the defendant. In short, his argument is that the defendant was more intimately involved than he would have the court believe.

13. What then is the defendant's version?

14. He told the court he is 25 years of age and has been a partner in the Sun Hing Plastics Factory at Big Wave Bay, Shek 0, since 1970. His father is also a partner in that firm as well as Choi Sum whose real name is Fung Lai-sum. The defendant said that on the 13th April, Choi Sum asked him to go with him to Kowloon where Choi Sum was going to get an additive for coffee or caffeine. As far as the defendant was concerned, he thought no more than it was something to be added to coffee for ordinary drinking purposes. They went together in the firm's vehicle and on their arrival at the Astor Theatre Choi Sum alighted, returning after a short while with two men. One of these persons was the 2nd defendant and he was carrying a parcel. All three men entered the vehicle with the defendant and they went to Lam Tin Resettlement Estate where the two men alighted. After a short while they again returned, the 2nd defendant still carrying the same parcel. They set off again but their journey was halted by a punctured tyre. On this happening, the two men walked away leaving Choi Sum and the defendant to repair it. The 2nd defendant took his parcel with him. After Choi Sum and the defendant had replaced the tyre they returned to Shek O.

15. The defendant said on oath that he had not seen the 2nd defendant or the other man before that day.

16. He said that on the 14th April Choi Sum again asked him to accompany him to Kowloon where he was going to collect the coffee additive. At the last moment Choi Sum was unable to go and so the defendant went in his own vehicle confident that he would be able to recognise the same two men outside the Astor Theatre. He went there and met one of them who directed him to Man Ho Court in Nathan Road. There his passenger alighted and after 15 to 20 minutes he reappeared with the 2nd and 3rd defendants. The 1st defendant opened the boot so as to allow the 2nd defendant to put a red and white travelling bag inside. All four then set of for Sham Shui Po.

17. On the way there, the 2nd defendant, inside the car lit, what I suppose must be a joss-stick. The defendant asked him why he was doing that and, according to the defendant, the 2nd defendant told him he wanted to protect them because there were dangerous drugs inside the vehicle.

18. The defendant said it was then that he first became aware he was carrying dangerous drugs inside his vehicle.

19. The defendant then drove to Li Cheng Uk Estate where the 3rd defendant alighted. He drove on a little further to do a U-turn and stopped so as to allow the 2nd defendant and the fourth passenger to alight. A while later the fourth passenger returned and put a carpenters' plane inside the vehicle after which he left the scene. A little later the 2nd defendant arrived and after that the 3rd defendant came with a cardboard box which was similarly put in the boot of the car. The defendant again opened the boot to allow this to be done.

20. They then left for Shek O. On the way, according to the defendant, the 2nd defendant placed two small tins in the glove pocket.

21. He drove to Shek O and stopped near the bus terminus to buy some cigarettes. It was his intention to take the goods back to his factory and hand them over to Choi Sum. Before he could do that, however, he was stopped by officers of the Customs and Excise Department.

22. The 1st defendant told the court that had he arrived at the Sun Hing Plastics Factory he would have demanded some explanation from Choi Sum as to why he was using him to transport these drugs. In cross-examination, he said he intended to tell the police about the drugs. He was asked why he had not driven off on the two occasions when he was left alone in the vehicle and he replied he was not sure where the others were and they might have dashed out and stopped him.

23. In the red and white travelling bag was found almost 9,000 grammes of a mixture containing 7,725.9 grammes of salts of morphine. This is morphine in its raw unconverted state. In the cardboard box was found 14.35 kilogrammes of caffeine and a quantity of quinine ethyl-carbonate, both of which are additives for manufacturing heroin from raw morphine. In the two tins in the glove pocket of the vehicle were found 50.4 grammes of strychinine hydrochloride.

24. The defendant asks the court to assess sentence upon the basis that he was initially unaware of the activities of the 2nd and 3rd defendants but that he aided and abetted their possession by driving them to Shek O from Sham Shui Po after he first became aware of the presence of the drugs in the vehicle.

25. The morphine has a value of one million dollars.

26. The defendant made a cautioned statement at 11 p.m. on the 14th April to Customs Officer 6956. In that statement he said he left his plastics factory at about 2.30 p.m. and drove to the Sing Fai Plastic Dyeing Material Factory in Des Voeux Road West in order to collect some dyes. His statement then reads:

"I collected three portions of colour powder from Sing Fai Plastic Dyeing Material Company. I wanted to drive back to my factory. When I left Sing Fai Plastic Dyeing Material Company and walked past several shop spaces I met a friend surnamed Ng. I exchanged a few words with Ng, my friend, who asked me whether my factory would employ additional workers. I said 'Yes'. He said he would introduce a person to me and asked me to cross the harbour to transport some packages. After crossing the harbour, we came to a housing estate (the name of which is unknown to me) in Castle Peak Road. He told me to wait in the car. After a while, he came down with another person, and put a bag and a paper box in the boot of the car, which I opened for him."

27. In fact, unknown to the defendant, this vehicle had been followed from Man Ho Court in Nathan Road where the 2nd defendant was observed to put the travelling bag in the boot to Li Cheng Uk Estate where the 3rd defendant placed the cardboard box in the boot.

28. The defendant agreed he lied to the Customs and Excise Officer when making that statement. Also in that statement he said he had met the 2nd defendant once before and the first time was at a wedding dinner. His evidence before me was that he first met the 2nd defendant on the 13th April. It follows that that statement too was also untrue.

29. It is crystal clear that the defendant never told the officer what he has now told this court. The versions differ and differ materially. His explanation for this was that he was frightened at the time and felt that the version he then gave would be more favourable to him. Why, one asks, should he invent having met the 2nd defendant at a dinner party when, according to his evidence before me, he first met him on the previous day and in circumstances which did not suggest that anything illegal was afoot? Why also, one asks, should he not mention the frustrated trip of the 13th April? If on the 14th he had been made the scapegoat of Choi Sum why should he not say so? If the circumstances were as he alleged, one would have expected him to be indignant at least.

30. I found his explanation unconvincing.

31. But the probability of his story hinges on the likelihood of the 2nd defendant, or anyone else for that matter, lighting a joss-stick in a moving vehicle and disclosing to him that the reason for doing so was because there were dangerous drugs inside the vehicle.

32. According to the defendant, he had only met them for the first time on the previous day. Nothing untoward happened on that day so far as the defendant was concerned.

33. Why then should the 2nd defendant inform the defendant that there were dangerous drugs inside the vehicle? Why should he expose himself to the risk of the defendant driving to a police station and handing over the drugs and his passengers? At Shek O he went off on his own to buy some cigarettes. He there had an opportunity to inform on them by telephoning the police or asking someone else to do that.

34. Looking at the matter in reverse, one may ask: What was it about the defendant which made these two persons so confident as to allow him out of their sight when his exposure of them would lead them to suffer severe consequences?

35. According to the defendant, there seems no reason why he should have been told of the presence of the drugs had joss-sticks not been lit.

36. One wonders why, if the 2nd and 3rd defendants were so anxious about the smell of morphine, they could not have opened the windows of the vehicle. Was there really this necessity to advertise the presence of the drugs?

37. I do not believe the defendant's version on oath. I do not accept that for a short part of that journey he was aiding and abetting their possession of the dangerous drugs in his capacity as a mere driver.

38. His story of setting out to collect the coffee additive or essence of coffee was confusing and I do not believe it. His story of lighting joss-sticks is too improbable for belief. I find he was fully aware of the purpose of the journey which was to convey dangerous drugs to Shek O.

39. Nor do I think I am obliged to wear blinkers in deciding the factual basis for sentencing in this case as Mr. Donnelly would have me do.

40. I shall, as against the defendant, ignore what was found in hut 399 but I do take into account the unexplained presence of traces of drugs in his own home. I do so not only for the purpose of ascertaining whether his version is probably true or not, but to show his degree of involvement in trafficking itself. There is nothing to show that he is a manufacturer but he is closer to the centre of operations than a mere driver would be.

41. In my opinion, his participation was not minimal. I find that on the 14th April when he set out he did not do so innocently and I am satisfied beyond reasonable doubt that he was not the unsuspecting dupe of Choi Sum.

42. What then is an appropriate sentence upon these facts which would show that he was fully in possession of these drugs for the purpose of unlawful trafficking? He has no previous convictions and is 25 years of age with a wife and two young children. The value of the morphine involved is considerable. He used his own vehicle knowingly to transport the dangerous drugs from Kowloon to a factory in Shek O of which he is a partner and close to his home in which traces of dangerous drugs were found. In the vicinity is a hut in which were found chemicals and paraphernalia for the conversion of morphine into heroin. In my opinion, I am fully entitled to take into account the existence of that hut even though earlier I rejected it as not a fact relevant to the determination of the question as to whether there was any connection between him and the drugs in that hut. There is no law, as far as I am aware, that a person in possession of drugs for the purposes of trafficking is only liable for the known consequences of his own act.

43. In my view, for a court to be required to ignore these facts would place the sentencer in a strait-jacket and would restrict him in his duty to ensure that drug trafficking is stopped.

44. When I sentenced the 2nd and 3rd defendants on the same count each to 8 years' imprisonment I took into consideration that they were going to give Queen's evidence against this defendant on the manufacturing charge. I ask myself whether this defendant's involvement on the possession charge is any less serious than theirs. In my opinion, it certainly is not. Being satisfied of that fact, I next ask myself: Should this defendant be sentenced to that period of imprisonment which the 2nd and 3rd defendants would have received had they not informed the court that they were prepared to give evidence against this defendant? It could be argued that the fact that they got away with a lighter sentence should not be a ground for extending the error so far as this defendant is concerned. However, looking at the matter as fairly as I can, I see no distinction so far as the offence of possession of dangerous drugs for trafficking is concerned between the position of this defendant and of the 2nd and 3rd defendants. Accordingly, I think that an appropriate sentence would be one of 8 years' imprisonment.

45. I wish to emphasize that in this case I have totally ignored any likelihood of this defendant having manufactured dangerous drugs. His sentence is based solely on the facts I have found relevant to his possession of dangerous drugs for the purpose of unlawful trafficking. He was not, as I have found, a mere pawn with a minimal involvement, acting as a mere driver and coming to learn of the existence of the drugs during the course of a journey.

46. There will be an order that the drugs and paraphernalia be forfeited to the Crown.