R. v. Yiu Kwong Shui

CACC000377/1995

IN THE COURT OF APPEAL

No. 377 of 1995
(Criminal)

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Coram: Power, V.-P., Wong and Keith, JJ. in Court

Date of hearing: 16 November 1995

Date of delivery of judgment: 16 November 1995

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J U D G M E N T

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Keith, J. (giving the judgment of the Court) :

1. On 24th April 1995, the Applicant was convicted by Judge Lugar-Mawson in the District Court of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance (Cap. 134) ("the Ordinance"). He had pleaded not guilty. He was subsequently sentenced to four years' imprisonment. He now applies for leave to appeal against both his conviction and sentence.

2. The Applicant was 63 years old at the time of his arrest. The charge against him was a joint one. One of his co-defendants (D1) had absconded before the trial began, and the trial took place in D1's absence. The other of the Applicant's co-defendants (D3) was acquitted.

3. The Applicant and his two co-defendants had been observed one evening in March 1994 by a number of customs officers outside a factory in Kwun Tong. D1 had arrived there first. The Applicant had arrived about 5 minutes later. About 5 minutes after that, they were joined by D3. The three of them went into the Cargo Handling Basin. Once inside, D3 was seen to hand a plastic bag to D1 in the presence of the Applicant. D1 and the Applicant left the Basin, with D1 carrying the bag, and D3 went off in a small sampan. Outside the Basin, D1 and the Applicant were stopped by customs officers. The bag was searched, and in it was found another bag containing what was subsequently analysed to be 8,303.9 gms. of raw opium in plastic bags and sheets. Although the judge did not accept the evidence of the customs officers in its entirety, he was sure that this account of what they observed was accurate. There is no basis on which his findings as to what they observed can be challenged.

4. The judge found that the Applicant had been trafficking in the opium, primarily on the basis of a written record of an interview of the Applicant by customs officers. The Applicant signed that record as accurately recording what he had said. The judge found that the record was an accurate record of what the Applicant had said in the interview, and that what the Applicant had said had been said by him voluntarily. Again, there is no basis upon which his findings of fact on those issues can be challenged.

5. The record of interview recorded the Applicant as admitting that D1 had asked the Applicant to meet him at the factory in Kwun Tong. The Applicant was not asked whether D1 had told him what D1 had wanted to meet him for. However, the Applicant said that when he got to the factory he saw D1 carrying a bag. The bag was heavy, and he asked D1 whether D1 wanted his help to carry it. He said that he knew that the bag contained opium because D1 had told him that a friend had given it to him. However, one cannot tell whether the Applicant meant that he had known that before he met D1 that night, or whether it was something which he discovered only when he met D1. Be that as it may, D1 suggested that the bag be kept at the Applicant's home. The Applicant said "no" but suggested that it be kept at a flat he rented in Tokwawan, though when he was asked a little later what he used the flat in Tokwawan for, he said he lived there.

6. In his own evidence, the Applicant had admitted renting the flat in Tokwawan two weeks or so before his arrest, but he claimed that he had done so in order that a son of a terminally sick friend of his would have somewhere to stay when visiting his father from China. However, he also said in his evidence that D1 had gone with him when he went to look for a flat to rent.

7. The judge in his Reasons for Verdict correctly noted that none of the customs officers had said that the Applicant had ever been in physical possession of the bag, and that in his interview the Applicant had never admitted having laid hands on the bag. However, on the basis of what the Applicant said in his interview, and of what the Applicant said in his evidence about the flat in Tokwawan, the judge made three important findings of fact:

(i) The Applicant knew that opium was to be handed over at Kwun Tong that night.

(ii) The Applicant went there to help D1 collect it.

(iii) The Applicant and D1 intended to take the opium to the flat in Tokwawan where it was to be stored.

There is no basis whatever on which the third of those three findings can be challenged. As to the first two, the judge cannot be criticised for finding that the Applicant had agreed to meet D1 that night to help D1 collect something, and to assist him in storing whatever was to be collected. Why else should D1 have gone with the Applicant to view the flat in Tokwawan before the Applicant rented it, and why else should the Applicant have gone to Kwun Tong at all that night? But the answer which the Applicant gave as to when he knew that it was opium that he was collecting was ambiguous, and it was therefore wrong for the judge to say that it was clear from the record of the interview that the Applicant had gone there knowing that opium was to be handed over. Having said that, though, the judge, in our view, would have been perfectly entitled to conclude from the rest of the evidence in the case when seen against the admissions made by the Applicant in his interview that the Applicant had gone there knowing that it was dangerous drugs of some kind which were to be handed over.

8. However, even on the basis of the third of the findings of fact which the judge made, the conviction of the Applicant was inevitable. A person who assists in the storage of drugs trafficks in them, because trafficking is defined in section 2(1) of the Ordinance as including "otherwise dealing in or with" drugs. Assisting in the storage of drugs comes within that definition, whether or not a person has only known for a short time that it was drugs that he was going to assist in storing. Accordingly, the application for leave to appeal against conviction must be refused.

9. In determining the length of the inevitable sentence of imprisonment which had to be imposed, the judge reminded himself of the guidelines for sentencing in opium cases laid down in R. v. Lau Yiu Lam [1986] HKLR 964. Possession of more than 3,000 gms. of raw opium for the purposes of trafficking could expect to attract a sentence of imprisonment of three years' upwards. We read the judge as having taken the sentence that he finally imposed - four years' imprisonment - as his starting point. In view of the quantity of the opium found, we cannot say that he was wrong to do so.

10. The judge did not regard the Applicant's age as mitigation. He cannot be faulted for that. Age - whether youth or old age - carries little weight as a mitigating factor where drug trafficking is concerned. We cannot discern any other potentially mitigating factors, and we therefore cannot say that the judge was wrong not to discount the sentence in any way. It follows that the application for leave to appeal against sentence must also be refused.

Representation:

Mr. D.G. Saw, S.A.C.P., for the Crown

Yiu Kwong Shui in person