The Queen v. Chan Koon Wing

CACC000391/1989

BETWEEN

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Coram: Hon Silke, V-P, Fuad, V-P and Macdougall, J.A.

Date of hearing: 6 February 1991

Date of judgment: 6 February 1991

Date of handing down of reasons for judgment: 1 March 1991

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant, who pleaded guilty to one count of manufacturing a dangerous drug, namely, salts of esters of morphine, and to one count of possession of that dangerous drug for the purpose of unlawful trafficking, was sentenced to 7 years' imprisonment on each count, such sentences to be served concurrently. His application for leave to appeal against those sentences was refused on 6 February and we now give our reasons.

2. We have already dealt at length with the facts of this case in Criminal Appeal 192 of 1989 in which applications for leave to appeal against conviction were refused on 18 October 1990 in respect of two other persons surnamed Wan and Ng who were concerned in the commission of these two offences. An application for leave to appeal against sentence by a man surnamed Chu, who pleaded guilty on the manufacturing count and was not tried on the possession count, was granted at an earlier hearing today.

3. The role played by the applicant in those offences was that he approached Wan and suggested that they should manufacture heroin. Following Wan's agreement the applicant, who was to be responsible for setting up the operation and the subsequent disposal of the drugs, enlisted the services of Ng to assist in the operation. Ng, in turn, suggested that his brother in law, Chu should also take part.

4. As a result of this agreement the applicant and Wan transported the ingredients and equipment for the manufacture of the drug to a house in Fairview Park. Ng and Chu arrived in another vehicle at about the same time. All four men carried the equipment and ingredients to the upper floor of the premises and Chu, Wan and Ng began to manufacture No. 3 heroin from No. 4 heroin base. The applicant, who it appears was not skilled in the process, rendered little assistance.

5. Shortly afterwards a police squad arrived and all four men were caught redhanded. Another man who was present downstairs was also arrested. However, at the instigation of Wan and Ng, the four drug manufacturers and several police officers entered into a conspiracy in which it was agreed that Chu and the applicant would assume responsibility for the drugs, that Wan and Ng, who were senior office bearers in triad societies, be permitted to wash all traces of heroin from their bodies, and that it should be said that they were found in the premises in circumstances consistent with their being mere visitors.

6. It was also agreed that Chu and the applicant would be rewarded for confessing that they alone were the manufacturers of the drugs and for exculpating Wan and Ng.

7. The plot began to unravel when the applicant, having spent some months in custody without receiving any reward from Wan and Ng, made full disclosure to the ICAC. The other arrested person and one of the police officers followed suit. All three gave evidence at the trial against Wan and Ng with regard to the drug offences and against Wan, Ng and Chu and two of the police officers in respect of the conspiracy to defeat the course of justice. Prior to the trial the applicant pleaded guilty to the drug offences and, after the conviction of Wan, Ng, Chu and the police officers, came before Deputy Judge Corcoran, who had conducted the trial, and was given concurrent sentences of 7 years for each of the two drug offences.

8. In passing sentence the deputy judge stated that the applicant was one of the organisers of a drug manufacturing operation that was to produce a very large quantity of No. 3 heroin, that he had a bad record including convictions for robbery, blackmail and aiding and abetting the keeping of a disorderly house and that he had been a member of a triad society.

9. He further stated that had the applicant been convicted after a contested trial he would have imposed the same sentences on him as he had on Wan and Ng, that is to say concurrent sentences of 18 years on each count.

10. However, he allowed a discount of 25% for the applicant's pleas of guilty and such further discount for having given evidence at the trial as to reduce the overall  sentence from 18 years to 7 years.

11. Mr Plowman, who appeared for the applicant at the hearing of the application for leave to appeal, submitted' that in light of the fact that the overall sentences of 18 . years passed on Wan and Ng included concurrent sentences of 5 years, in the case of Wan, and 6 years, in the case of Ng, for the offence of conspiracy to defeat the course of justice, the overall sentence of 7 years imposed on the applicant was manifestly excessive.

12. Mr Plowman also referred us to a complaint that the applicant had made to ICAC that while he was in custody at the office of the Commission an offer had been made to permit him to escape while exercising. As a result of an investigation which followed his complaint one of the officers who had been guarding him was dismissed, another resigned and other officers were advised to adhere to proper procedures.

13. During the course of submissions on sentence before the deputy judge, crown counsel informed him that no offer had been made to the applicant to permit him to escape. Mr Plowman submitted that clearly there must have been some substance in the applicant's report to ICAC otherwise the officer would not have been dismissed. He also submitted that the applicant had given information concerning other drug activities. This information, however, was hearsay in respect of a matter that was already under investigation.

14. Mr Plowman told us that because of the applicant's justifiable fear that triad prisoners might exact revenge on him for having testified against the two senior triad office bearers and was therefore instrumental in securing their conviction, it is necessary that he be kept in solitary confinement, thereby intensifying the privation he must endure. Mr Plowman submitted that the applicant should therefore be given the full two thirds reduction of sentence that is commonly granted to so called supergrasses. He further contended that the starting point for sentence was too high and that it should have been 15 years. The effect would be to reduce the overall sentence to one of 5 years.

15. We do not accept either of these submissions. First, we do not consider that the applicant comes within the supergrass category and, secondly, in The Queen v. Chu Chun-wah and others Criminal Appeal 192 of 1989, which was heard immediately prior to this application and which related, inter alia, to the drug manufacturing incident with which this application is concerned, we stated that in the circumstances of the case the sentence of 18 years imprisonment for trafficking was by no means excessive.

16. Finally, we observe that the applicant was the initiator of the scheme to manufacture the heroin. We think that in these circumstances the overall sentence of 7 years, reduced as it was from one of 18 years, cannot be said to be manifestly excessive.

Representation:

Mr Barry Moorfoot for Crown Prosecutor

Mr. G. Plowman instructed by M/S K.M. Lai & Li for applicant