The Queen v. Cheng Ching Kwong and Another

CACC000335/1985

BETWEEN

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Coram: Silke, J. A., O'Connor & Power, JJ.

Dates of Hearing: 9th & 10th January 1986

Dates of Decision: 9th & 10th January 1986

Date of handing down judgment: 28th February 1986

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JUDGMENT

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Silke, J. A.:

1. Cheng Ching Kwong and Mok Tak Kwong were convicted after trial by His Honour Judge Hopkinson (as he then was), sitting as a Deputy High Court Judge, and a jury of a joint charge of conspiracy to manufacture dangerous drugs. Mok  - D2 was also convicted of an offence under Section 37 of the Dangerous Drugs Ordinance: as a tenant permitting premises to be used for the unlawful manufacture of drugs.

2. They sought leave to appeal against their convictions and their sentences. At the conclusion of the hearing, we granted leave to appeal treated the hearing as the hearing of the appeal and dismissed the appeals against conviction. The applications for leave to appeal against sentence were refused. We stated we would give our reasons later and this we now do.

3. The conspiracy as laid ran from 29th February to 28th November 1984. There was charged with them, as the 3rd defendant at trial, one Ma Sai Tai. He was acquitted. The three were alleged to have conspired with a Cheung Hak Tai and others to manufacture heroin.

4. A burglary at a premises in Shatin, Block B, 20/F., Avon Court, Garden City, Shatin, was reported to the police on 28th November 1984. That report was investigated by a police party who, upon arrival at the premises, found that it contained a considerable quantity of equipment used in the manufacture of dangerous drugs; 10 kilos of heroin base and 3 kilos of partially prepared No. 3 heroin. The Narcotics Bureau was informed and surveilance was kept upon the premises. On 30th November, Cheng -D1 - and D2, together with a young boy, were seen going to the premises. They were intercepted. D1 had the keys to the flat in his hand and it was the case for the Crown he had in his pocket keys to another premises in Tse Wan Shan of which D2 was the tenant. They were arrested.

5. On 31st November, D1 was taken to the Tse Wan Shan premises at 2/F., Block B, Ko Mei House, 163 Po Kwong Village. A search of those premises uncovered a further quantity of drug manufacturing equipment and 3 kilos of salts of ester of morphine.

6. Foot and hand prints of both defendants were found at both premises. At the Shatin premises, a piece of paper, upon which was also found traces of dangerous drugs, had on it the left foot print of D1. The left palm print of D2 was upon a door of a wardrobe.

7. At Tse Wan Shan premises the prints of both D1 and D2 were found upon paper also soiled with dangerous drugs.

8. Evidence was called from one Chan Tan of the purchase, by D1, from his small drug store of hydrochloric acid and caffeine in large quantities.

9. Upon arrest, both the applicants denied knowing that either premises was used for the manufacture of heroin. Both proferred exculpatory explanations of their connection with the premises. Both gave evidence at trial - D1 attempting to implicate two other persons whom he said must be the real culprits as he himself knew nothing. He accepted that he helped D2 to rent the Tse Wan Shan flat after D2 had been introduced to him by one of those persons. He explained the presence of his prints by saying that they must have been placed there at the time when he helped to move some furniture into the flat. He explained his prints at Shatin by saying that he had been asked, together with D2, to go to that flat to repair some windows. This he had done in November.

10. D2 in a large measure supported that which was said by D1. He also denied knowledge and attempted to place the blame upon another person. His cousin, he said, was employed to renovate the Tse Wan Shan flat and he had helped to move in furniture which resulted in his prints being present on the premises.

11. All these matters were left in detail to the jury for their consideration.

12. Mr. Keane, with him Mr. Chu Tak, who appeared for the appellants in this Court, placed before us five joint Grounds of Appeal - I shall leave for a moment consideration of a single ground peculiar to D2. Of those grounds but three were canvassed before us. Dealing with those grounds in the order in which the submissions were made, the first Ground 4 - reads:

" The Learned Trial Judge erred by omitting to direct the jury that any out of court statements made by the 1st appellant to police officers was not evidence admissible against the 2nd appellant, and vice versa."

Mr. Keane stressed the oral statements made by both accused upon their arrest to police officers. He drew our attention to the lack of direction in the summing up on the lines he suggests should have been given in respect of those statements.

13. It is not disputed that the trial judge gave, and repeatedly gave, directions to the jury to consider the case of each applicant separately and that he dealt in detail and separately, with that issue and also with the evidence the appellants gave in their defence. Evidence of that which they had said upon arrest was before the jury through the mouths of the police officers. Nothing they had said in any way served to inculpate either the speaker or his co-accused. That which was said was partly explanatory and wholly exculpatory in nature. It was relied upon, to some extent, by the Crown to show first reaction. It was consistent with the denial of knowledge which both appellants repeated at trial.

14. There was cross-examination of the police officers which suggested that certain of the oral statments had not been made - and to that extent there was an issue.

15. In Tsui Shing Yau and another v. The Queen,⁽¹⁾ another Division of this Court, in considering a failure to direct the jury to deal with each defendant separately, said that it did not regard the omission to give a separate direction to amount to a material misdirection

"unless there was a possibility that the jury might, in the circumstances of the case, have given weight, as against one of the defendants, to evidence which was not applicable to him."

16. While that is not directly on point in the circumstances of this case, we do not think that the absence of the direction which Mr. Keane asks us to hold should have been given could have led to any possibility that the jury might have given weight as against one of the appellants to evidence not applicable to him. In the event, this ground fails.

The next - Ground 3 - reads:

"The Learned Trial Judge erred by omitting to direct the jury to consider whether the prosecution witness Chan Tan was or might be an accomplice, or alternatively a witness tainted by, an improper motive, and by omitting to give to the jury the necessary consequential directions as to the danger of acting upon his evidence if so, and as to corroboration thereof."

17. This ground we think to have more substance. It was Mr. Chan Tan's evidence that he had operated a small drug store at Shatin Wai Village since about 1962. A Mr. Chan, who was a regular customer, bought caffeine from him in 1983 and hydrochloric acid in 1984. From his evidence it would appear that Mr. Chan Tan, when requested by customers for the supply of these articles, would purchase directly from the wholesaler Wing Hung. The price at which he sold was $75 for one liter of hydrochloric acid and for caffeine, $70 per kilo. It came in twenty kilo bags.

18. The customer Mr. Chan then introduced a purchaser described by Chan Tan as "Drug Addict Ma". This man continued to make similar purchases. He ceased to visit the shop in April or May 1984 because, as Chan Tan said, he was arrested by the police. A Mr. Ma was then introduced who in turn introduced, as a purchaser, a boy. This boy was D1.

19. D1, while at times buying ginseng and Chinese herbs, later bought, on at least ten occasions, hydrochloric acid and caffeine. The introducer Mr. Ma was identified by the druggist as the 3rd defendant at trial.

20. Mr. Chas Tan denied knowing, until he was told by the police, that hydrochloric acid and caffeine were items used in the manufacture of dangerous drugs. The Judge's direction concerning Mr. Chan Tan and his evidence went:

"         Then finally there is Mr. CHAN, the drug shop man. His evidence was rather different and Mr. Boucaut himself says that you would have to consider his evidence very carefully because he seems to have watered down, so it seems, he watered down his evidence about the 3rd accused. He also claimed - you may feel rather doubtful about it - he claimed that he did not know that caffeine and hydrochloric acid were used in the manufacture of heroin. Well, seeing that he deals in drugs, that seems rather unlikely! However, he did produce various invoices from his wholesalers that he had bought caffeine and hydrochloric acid from them over quite a long period -between June and November, and he says and it is his evidence, that he made ten such sales of acid and caffeine to the 1st accused, and he rejected the suggestions in cross-examination by Mr. Poll that his recollection was at fault or, alternatively, that he was mistaken in identifying the 1st accused or using him as a scape goat. He rejected such suggestions.

Anyway, his credibility and the detective's evidence is entirely a matter for you. If you believe CHAN Tan's evidence, of course it is very telling. But even without it, can you infer from the rest of the evidence that the 1st accused was indeed involved in this conspiracy and that he was actively engaged in its operations? If, on all the evidence, you are sure of his participation, then you should find him guilty. But if you are not sure or have any reasonable doubts, then of course you will find him not guilty."

These directions were almost, but not quite, adequate.

21. The jury were aware from the address of Mr. Boucaut, then appearing for the Crown, that they should exercise care in considering the evidence of Chan Tan. A warning repeated by the trial judge. They had heard the cross-examination in the course of which it was suggested that Chan Tan was shielding someone by casting blame on D1. While his evidence was "telling'' it was not evidence essential to the convictions in this case. Without it there was strong, indeed overwhelming, evidence of the complicity of both the appellants in the conspiracy. While the directions, the absence of which is criticised by Mr. Keane, should have been given, for there was a distinct possibility that the drug store man was a participant in the wrongdoing, that absence did not in our view lead to any miscarriage of justice. It was for this reason that we gave leave to appeal but applied the proviso in respect of the appeals on the conspiracy count convictions.

The ground which had relevance to D2 alone reads:

"The Learned Trial Judge misdirected the jury in relation to the 2nd count against the 2nd Appellant that the 'permitting' of the premises to be used for the manufacture of heroin was established if it were proved that the 2nd Appellant was wilfully blind to what was going on."

This ground springs directly from the phraseology used in the course of the summing up. At page 10, the trial judge said this:

"     'Tenant'. Well, he is the person who holds premises under an agreement with the owner or the landlord. And 'permitting'. This is important-you see, permitting the said premises to be used. Well, permitting means allowing something to be done, allowing the premises to be used for the manufacture of dangerous drugs.

Well, it goes I think without saying, when you come to think of it, that you can't allow something to be done unless you know what that thing is, or what is to be done, for a man cannot permit what he doesn't know about."

So far so good. But he then went on:

"So, unless it can be proved that the 2nd accused knew what was being done or to be done, or that he willfully or he was willfully blind to what was going on, then he can't permit it and you couldn't find him guilty of the offence."

As the summing up drew to a close the trial judge, having made reference to D2's connection with the Tse Wan Shan flat and specifically dealing again with the permitting count said:

"Well, bearing in mind those different aspects of the evidence, have the Prosecution satisfied you so that you are sure that he knew what was going on there, and that he allowed the premises to be used in the way they were being used, i. e. as a dangerous, drug factory. If you are sure of that, well then, you will find him guilty. If you are not sure or have any reasonable doubts, well then, of course, you will find him not guilty."

22. The jury had clearly emphasized to them that the requisite proof was the knowledge of the appellant.

23. A judge ought not to use the, expression "wilful blindness" to a jury. It may mislead them. If it is used it should be explained.

24. The knowledge required for "permitting" is actual knowledge by the defendant or wilful blindness ire the sense of actual suspicion on his part. In Gray's Haulage Co. Ltd. v. Arnold⁽²⁾ Lord Parker C. J. adopted as the test of "permitting",

"..... actual knowledge or knowledge of circumstances which fixed them, as it were, with a suspicion or knowledge of circumstances so that it could be said that they had shut their eyes to the obvious, or had allowed something to go on, not caring whether an offence was committed or not."

25. In R. v. Souter⁽³⁾ that test was approved of as the proper test, and Souter's case was itself approved of in R. v. Thomas and Thomson. ⁽⁴⁾

26. We think that the passage complained of here while, with respect to the trial judge, somewhat unclear, was endeavouring to direct the jury in the manner approved of in Souter⁽³⁾ and Thomas. ⁽⁴⁾

27. Tile final direction which we have quoted, immediately before the jury left to consider their verdict, was, if anything, over fair to the appellant for it left them with the phrase "you are sure that he knew what was going on" ringing in their ears as a criteria upon which they could or could not come to a verdict of guilty. We do not think that the absence of an explanation in this case as to what wilful blindness meant could have misled the jury. The directions were adequate.

Sentence

28. Following upon their convictions, the appellants were sentenced: as to D1, Cheng Ching Kwong, 18 years imprisonment and as to D2, Mok Tak Kwong, 14 years on the conspiracy charge and 14 years on the permitting count: concurrent. They now seek leave to appeal against those. sentences.

29. Mr. Keane has taken two points. First, the use made of an out of court statement of D1 in the sentencing process. Second: the excessive quantum of the sentences which were imposed: and the one point impinges upon the other.

30. As to the statement point: what had happened was this: at the commencement of the trial there was voir dire on the admissibility of a statement made by D1. That statement was admitted as voluntary. In the trial proper the Crown did not seek to rely upon it and it was not placed before the jury. When the sentencing process commenced counsel then appearing for the Crown brought to the attention of the Court certain facts extra to the evidence called at the trial itself. There was a reference to the contents of the statement. The trial judge said he had not read it. Further references were made by both counsel. It delineated and in detail upon the participation and the generality of the part played by D1. It also had relevance to D2 in so far as it delineated upon his participation in the conspiracy.

31. Mr. Poll, appearing for both the defendants, prayed it in aid of both of them. First as to D1, to minimize the part he played and, secondly, as to D2, to differentiate his role from that of D1. The statement of course had been disputed and its contents ran contra to the evidence given  by D1. The trial judge read it himself during an adjournment.

32. Normally, matters which are extra to the evidence called at trial and which are relevant to sentence are presented to the Court either as a statement of agreed facts or, if there is controversy upon them, by way of a trial of that particular issue. This course was not adopted here and that has led to the criticism Mr. Keane levelled against the method used.

33. In the light of the general conclusions to which we have come to upon sentence, we do not think it necessary to give a definitive ruling on the course adopted by counsel or on the propriety of that which occurred in the Court below.

34. We accept that where there is controversy, and a contested issue is tried at this stage of the trial, then the burden of proof is that of beyond a reasonable doubt in relation to the matters which the Crown seeks to prove. It is clear from the authorities that generally, and particularly where there are submissions made, matters of fact within the bounds of reasonable possibility which are favourable to the defendant are to be relied upon.

35. As to the quantum of the sentences which were passed. In Chan Chi Ming,⁽⁵⁾ it was said that a person convicted of manufacturing should normally receive a longer sentence than he would have done if convicted of unlawful possession. This was re-emphasized in Wong Chun Ping & others v. The Queen⁽⁶⁾ where at page 257, the Chief Justice, in giving the judgment of the Court, said:-

"It is therefore the act of manufacturing that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place."

This is not to say that the quantity of drugs found in any premises upon which manufacturing has taken place is irrelevant to sentence. It may assist the Court in assessing the size of the operation. It is not the overriding factor.

36. In this instant case there were two factories of which D2 was the tenant of the one at Tse Wan Shan. In the Shatin flat was found 10 kilos of heroin base plus 3 kilos of partially prepared No. 3 heroin. In the Tse Wan Shan premises was found 3 kilos of prepared No. 3 heroin. From the general condition of the two premises manufacturing had taken place and it is clear, from the quantity of heroin base that was found, that manufacturing was to continue.

37. We accept that the main count was that of conspiracy, nevertheless, these two defendants were fully involved in the most serious of the drug offences. There, was a differential as between D1 and D2 and whatever use may have been made by the trial judge of the statement of D1 it redounds to the benefit of D2 in that he was sentenced on  the basis of being an employee of D1. Of course it is , Mr. Keane's point that the sentence of D1 was excessive in any event because of the use of the statement and generally.

38. We do not, however, think that the sentences were in any way excessive. This was clearly, on the evidence at trial, a major operation. Involvement in it merits condign punishment even for those who appear in the Court for the first time and have clear records - neither of those factors are major considerations when assessing the sentence which is proper for a matter of this kind. We do not think that these sentences warrant any review by this Court. The application for leave to appeal against sentence will be refused in both cases.

(1)    Criminal Appeal 512 of 1980 (unreported)

(2)    [1966] 1 W.L.R. 534

(3)    [1971] 55 Cr. App. R. 403

(4)    [1976] 63 Cr. App. R. 65

(5)    [1979] H. K. L. R. 491

(6)    [1984] H. K. L. R. 247

Representation:

Desmond Keane, Esq., Q. C. and Chu Tak, Esq. (Anthony Kwan & Co.) for D1 and D2.

G. J. X. McCoy, Esq. for Crown/Respondent.