The Queen v. Wong Yiu Chook

CACC000366/1990

BETWEEN

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

Date of Hearing: 12 March 1991

Date of Judgment: 12 March 1991

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Wong Yiu Chook, appeared for trial before Mr. P.C. White, sitting as Deputy Judge of the District Court, on a charge sheet containing two charges. The first alleged simple possession of dangerous drugs and to this charge the applicant pleaded guilty. The second alleged possession of dangerous drugs for the purpose of unlawful trafficking, the quantity being 78.76 grammes of a mixture containing 69.81 grammes of salts of esters of morphine. On this, after trial, he was convicted. He originally sought leave to appeal against that conviction but abandoned his application on 21st February 1991. He then also sought, and now seeks, leave to appeal against the totality of the sentence passed upon him of 7 years. The sentences were apportioned as to 6 months on the first charge and 7 years on the second to run concurrently.

3. In his grounds he has suggested prejudice in the trial judge in that when, at the beginning of the trial, the solicitor first representing him asked to be discharged and to withdraw he said something to the applicant's detriment which caused the judge to be prejudiced. We say at once that having consulted the record as to what transpired no such prejudice could possibly exist.

4. What had happened was that the first solicitor informed the Judge that he wished to be discharged. Somewhat unfortunately the trial judge asked him why he could not represent the applicant. Nothing, however, emerged from the answer to the applicant's detriment. The matter was then adjourned and on the following day, 3rd July, when the applicant was represented by another solicitor who made some reference to the applicant's fear of prejudice in the circumstances of what had happened "yesterday". On intimating that was making a submission the trial judge read out to him the transcript of that which had happened on the previous day. The solicitor then withdrew any reservation for it had then been made clear that there was no objection to the judge continuing with the trial. It is now not for the applicant to re-open the matter before this court.  There was nothing improper in that which occurred at the trial.

5. Briefly the facts were that the applicant was stopped in the street carrying both a pager and a portable telephone. The drugs, the subject of the first charge, were found in his possession. He was taken to a premises at the Lai Lau House in Tai Kok Tsui which was searched but nothing was found. As a result of a full search upon himself a rent receipt and a set of Keys were found in his possession. This led to the search of another flat, at No.8 Ivy Street, Kowloon. The keys that were found on his person were used to enter that premises. In the kitchen., on top of a hanging cabinet, was found a white plastic bag containing two polythene bags of drugs. A set of scales with traces of drugs on it was beside the sink. In another room a blender with traces of drugs in it was found. In the sitting room a box with two "Po Chai Pill" phials, each containing traces of dangerous drugs, was uncovered and there was also found 41 plastic bags, a scissors, Knives and a cigarette lighter.

6. In the course of the trial the applicant accepted that the drugs were his out raised the "personal consumption" defence. This, not surprisingly in view of the quantity, was not believed.

7. Having dealt with the basis of the applicant's reason why his sentence is wrong there are, nevertheless, two other ratters which need to be considered.

8. At the conclusion of the defence case an unusual feature of this trial emerged in that the prosecution was permitted, though without objection, to call evidence in relation to the conversion of No.4 heroin into No.3 heroin. There was no agreement on what the conversion was. The person called was, presumably, a police constable as his rank does not appear in the transcript.  He expressed himself as being "not very familiar" with No.3 heroin and the evidence he gave was clearly hearsay. He could not by any stretch of imagination be considered as an expert. Nevertheless, he gave a conversion ratio, to which the judge paid heed, of a rate of 16 to 1. This gave the equivalent of 1750 grammes of No.3 heroin.

9. In the summary of facts there had peen reference to a conversion into 1530 grammes of No.3 heroin.  It was that latter conversion figure which the judge treated as the basis for sentence. He considered the decision in Cheng Yeung [1989] 2 HKLR 258 allied with that in Chan Chi Ming [1979] HKLR 491 which, as he properly thought, made up the combination of sentencing guidelines applicable as the time of this offence. In Chan Chi Ming a "very substantial" quantity of dangerous drugs, that is above 1000 grammes, involves a sentencing range of 8 to l2 years. Cheng Yeung approved conversion as the basis for sentence - that is, converting No.4 heroin into No.3 and then applying the guidelines in Chan Chi ming.

10. The judge went on to consider the later guidelines in The Queen v. Lau Tak Ming [1990] 2 HKLR 370 and noted that, even if he were to apply those guidelines, which he was not, the sentencing bracket would be the same. He was aware that the 8 years at the lower end of the Chan Chi Ming scale was outside his jurisdiction. He found no mitigating factors. He made no reference to the aggravating factor present here - the finding of packaging equipment in the flat together with the drugs. He came to the sentence of 7 years to which we have referred.

11. Then, after counsel had left court, the trial judge made a note upon the record which stated that the proper calculation on conversion should have led to a total of 1120 of No.3 heroin, not 1530 grammes. This allowed for the general low purity rate in 1989 as opposed to the greater purity rate upon which the Chan Chi Ming guidelines were based.  He noted, and rightly, that the quantity of 1120 grammes still fell within the "very substantial" quantity in Chan Chi Ming. He saw no reason to alter the sentence.

12. Now that was on 14th July. On 20th August the trial judge made a document entitled "Supplementary Reasons for Decision on Sentence".  In that he referred himself again to Lau Tak Ming, and to the course he had taken at the time of sentencing.  With respect, he misread Lau Tak Ming and this led him to think that he had been in error when he made reference to the "narcotic content" of the drug with which we are here concerned and to the sentencing bracket being the same in Lau Tak Ming as in Chan Chi Ming for the converted quantity. Because of that he did not "seek to support his sentence".

13. Before dealing with the error into which the judge led himself by that misreading of Lau Tak Ming, we wish to refer to the document which became a supplementary Reasons for Sentence. We fully appreciate the trial judge's motive in drawing to the attention of this court the views which he had then formed. That was a very proper thing to do. But a short note to that effect would have been sufficient. This court has before, and in particular in relation to Reasons for Verdict, deplored the provision of more than one such Reasons. But be that as it may the judge in considering the narcotic content made reference to the matter termed "S.E.M." in Lau Tak Ming.

14. Now the basis for sentencing guidelines was, in Lau Tak Ming, changed from the "mixture" of Chan Chi Ming to the "narcotic content" of that mixture. At the time of Lau Tak Ming there were three forms of dangerous drug mixture available in Hong Kong; the first No.4, the second that which was termed "S.E.M.",  and the third No.3. Those were references to mixtures and not to narcotic content. It is perhaps unfortunate that the term "S.E.M."  was used. This seems to have led to the confusion here. It is simply a term of convenience, used by the Narcotics Bureau itself and adopted by the court, to designate a mixture not as pure as No.4 but purer than No.3. This was stated specifically at p.383D of Lau Tak Ming where the court said:

"S.E.M. is a mixture containing the narcotic but less pure than No.4 and of a greater purity than No.3."

15. We trust that it will now be clear that S.E.M. is not the narcotic but is the mixture.

16. Coming back to the sentence which was imposed here: even at the lowest of the three conversions with which the trial judge concerned himself, the mixture fell clearly within the "very substantial" bracket in Chan Chi Ming. Apart from that there was also the matter which should have played a part in the sentencing process, that is the packaging equipment found in the premises. While the sentence imposed was at the top of the trial judge's jurisdiction, nevertheless, and despite his subsequent expressed doubt, it was a sentence which was fully justified.  We are not prepared to interfere with it. The application for leave to appeal against sentence is, therefore, refused.

Representation:

Applicant - in person

S.R. Bailey, Esq. for Crown/Respondent