HKSAR v. Tang Siu Man

CACC000360/1996

IN THE COURT OF APPEAL

1996, No. 360

(Criminal)

_______________

_______________

Coram: Hon Power V-P, Mayo JA and Wong J in Court

Date of hearing: 8 July 1997

Date of judgment: 8 July 1997

_______________

J U D G M E N T

_______________

Mayo JA giving the judgment of the Court:

1. The applicant was convicted of one count of manufacturing a dangerous drug and one count of trafficking in a large quantity of dangerous drugs after a trial before Saied J and a jury. He was sentenced to a total of 28 years' imprisonment. He now seeks leave to appeal against both his convictions and the sentences which were imposed.

2. The police conducted a surveillance exercise of premises on the 19/F of Chuen Fai Centre in Shatin in the afternoon of 15 July 1995. They saw a man approached the flat take out a key and open the door. The officers intercepted the man and themselves entered the flat. They conducted a search and found evidence to support the first count and all of the dangerous drugs described in the second count. That is 2218.14 grams of a mixture containing 1039.87 grams of heroin hydrochloride and 9,718 tablets and two tablet fragments containing a total of 23.87 grams of diazepam.

3. Approximately half an hour after the officers entered the flat the applicant came in. He used a key he had in his possession to gain entry to the flat. After a quick body search by one of the officers it was claimed that the applicant said "I am caught red handed - nothing to say". It was also claimed that he admitted that he rented the flat and occasionally lived there. In this connection it is not disputed that the applicant was the tenant of the premises.

4. The applicant gave evidence at the trial below. He said that he had sublet the flat to his friend Man Ka-lok. This was the man the police had first seen entering the flat. He was a co-defendant with the applicant at the trial and had pleaded guilty to the second count and another offence.

5. The applicant said that he had had no idea that the flat was being used to manufacture dangerous drugs. On the evening in question he had gone to the flat to get his Hi-Fi equipment which he had left there and to collect rent from Mr Man. He denied that he had made the admissions attributed to him by the police officers.

6. It will be appreciated from this very short summary of the main facts that the most important issue which was before the jury was whether the applicant could be believed or had, by his evidence, raised a doubt in the minds of the jury.

7. There is one perfected ground of appeal against conviction:

" Having invited the jury to treat the Appellant as a man of good character, the Learned Judge failed to give an adequate direction in that although he gave a direction on credibility he failed to give a direction on the propensity of the Appellant to commit such a crime given his good character."

8. The direction given by Saied J was in these terms:

" While on this issue of credibility, you will recall that the defendant admitted that he had one previous conviction for Assault occasioning actual bodily harm for which he was placed on probation for a year when he was aged twenty. That conviction appears to have been for a not serious assault and it certainly did not involve dishonesty, it was straight forward simple assault. I expect that you would like to put that previous conviction aside and treat him, effectively, as a person of good character. Of course, good character cannot amount to a defence, but as with any man of good character, it supports his credibility."

9. Mr McLanachan for the applicant places reliance upon the cases of Lee Kam-yuen [1995]1 HKCLR 264 and R v. Azis [1996]1 AC 41.

10. Both those cases are immediately distinguishable from the present case. In neither of these cases did the appellant have any previous convictions. In the present case the applicant did have a conviction for assault occasioning actual bodily harm. He was accordingly not entitled to be treated as a person of good character.

11. The judge was being particularly helpful to the applicant when he referred to the fact that the offence he was convicted of did not involve any element of dishonesty and that accordingly so far as the applicant's credibility was concerned he could be treated as a person of good character. Was it necessary to go on to direct the jury on the applicant's propensity to commit a crime?

12. As was made clear in the speech of Lord Steyn in R v. Aziz a wide discretion is reposed in a judge in deciding whether or not to give directions as to character and the form of such directions.

13. We do not think that we would be justified in interfering with the way in which Saied J exercised this discretion.

14. Such a direction would, moreover, have been of little assistance having regard to all of the circumstances of this case.

15. The application for leave to appeal against conviction is refused.

Sentence

16. The total of 28 years' imprisonment was undoubtedly a severe sentence.

17. In the perfected grounds of appeal it is stated that "the act done by the appellant was simply to rent premises". This is not right. The judge gave directions as to what had to be proved for the jury to find the appellant guilty of the offence and this would have included either some involvement or participation in the commission of the offence.

18. The applicant was sentenced to 28 years' imprisonment on the manufacturing count and 24 years on the trafficking count to be served concurrently. Mr McLanachan accepts that the sentence on the trafficking count was not excessive. His complaint is that 28 years' imprisonment on the manufacturing count was manifestly excessive in the circumstances of the case. We agree.

19. We consider that 28 years' imprisonment placed the sentence at a point too high in the upper range of seriousness. In all the circumstances we would allow the application and treating it as the appeal reduce the sentence on the manufacturing count to 25 years. To this extent the appeal against sentence is allowed.

Representation:

Mr D.G. Saw SC and Lily Ho (DPP) for Respondent

Mr John McLanachan (DLA) for the Applicant

Remarks:
Appeal dismissed (by majority). Please refer to appeal Judgment FACC000001/1997.