Fan Chung Yuen and Another v. The Queen

CACC000399/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 399 OF 1973

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 12th November 1973.

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JUDGMENT

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Huggins, J.:

1. This was originally an application for leave to appeal against conviction only. The two Appellants were indicted under s.4 of the Dangerous Drugs Ordinance with trafficking in dangerous drugs. The jury found them guilty and they were each sentenced to seven years' imprisonment. At the hearing counsel asked leave to apply for leave to appeal out of time against sentence. There was no affidavit in support and the sole ground advanced was that the Appellants were ignorant of the law. It was with the greatest hesitation and reluctance that the Court gave leave.

2. The first ground argued on the application for leave to appeal against conviction is:

"That the learned Judge exercised his discretion wrongly in failing to withdraw the evidence of the prosecution from the Jury in view of the police evidence that the accused were trapped into committing the offence in question, and having regard to the fact that there was no evidence that the accused or one or other of them would otherwise have committed any such offence."

There is, of course, no doubt that the police did trap the Appellants, but equally there is nothing inherently wrong or unfair in trapping criminals: what is objectionable is the trapping of law-abiding citizens into becoming criminals and that is what the Appellants allege here. The facts were that a police informer arranged a meeting at the City Hall between himself, Chief Inspector Hodson and the second Appellant. The Chief Inspector there said he "wished to buy some white heroin". The second Appellant replied that he could let him have 50 ounces and would require 50% of the price in advance. There was some further discussion in the course of which the Chief Inspector said he would require a sample and the second Appellant indicated that a sample would be delivered in approximately 15 minutes. Some 30 minutes after the conversation ended the Chief Inspector met the second Appellant in Connaught Road Central and was handed a packet which was subsequently found to contain salts of esters of morphine. Some two hours after the sample was delivered the three men again met in the City Hall and the Chief Inspector expressed himself to be satisfied with the sample. He was asked to let the second Appellant see his money and he showed him a large wad of notes. It was agreed that $18,000 would be paid for 50 ounces of the drug and that the transaction should be completed in the Tsim Sha Tsui area. As a result of a telephone call that night there was another meeting at the City Hall at 10:15 a.m. next day. On this occasion the first Appellant was also present. There was more discussion about the handing over of the drugs and it was finally agreed that the parties should meet at the Hong Kong Hotel. At about 4:00 p.m. the second Appellant came to the room in the hotel which the Chief Inspector had booked for the purpose and he was carrying a box. The second Appellant explained that he was "testing the arrangements in the room and to find out whether or not it was a trap". After ten minutes the second Appellant left the room and about a quarter of an hour later returned with the first Appellant, who was carrying two parcels. The parcels were handed to the Chief Inspector and he opened them and saw white powder inside. (The contents were subsequently examined by the Government Chemist and found to contain salts of esters of morphine.) The Chief Inspector then gave a signal to other officers waiting in a neighbouring room and the Appellants were arrested.

3. The substance of counsel's contention is that there was no evidence before the court which showed that the police were justified in laying a trap: the prosecution should have led evidence of a predisposition to comrit an offence of this kind: in the absence of such evidence it was to be assumed that the Appellants would not have trafficked in these drugs at all had they not been tempted by the police. We accept his submission that, in the words of this Court in Michael LI Chun-tat v. Reg. Cr. App. No. 440 of 1972,

"... the question is whether [the Chief Inspector] induced the appellants into a course of criminal conduct upon which they would not otherwise have started".

We do not find it necessary to decide upon whom lies the burden of proof when that question is raised, although we would observe that when objection is taken to the admission of evidence it is normally for the objector to lay any foundation of fact which may be necessary, the principle applicable to the admission of extra-judicial confessions being exceptional. It is true that the Chief Inspector did rather more than place himself in such a position that if the Appellants desired to traffic in dangerous drugs there was full opportunity to do so (see Sneddon v. Stevenson 1967 1 W.L.R. 1051, 1056A) but the crime in this case was not one of soliciting and by reason of its very nature an entirely passive role on the part of the police could not have served their purpose - a purpose which, we repeat, was the proper one of trapping suspected criminals. There is nothing in the other cases which have been cited to us which persuades us that Mr. Hodson went further than the circumstances reasonably demanded - he did not go as far as did the detective constable in McCann (1971) 56 Cr. App. R. 356 where the trap was held to be a proper one - and we see no reason to hold that the learned judge wrongly allowed the evidence of this trap to go before the jury.

4. The only other ground of appeal which was argued was that the charge as framed was defective in that it failed to particularise the element of trafficking relied upon by the prosecution. The Particulars of the offence alleged were:

"FAN Chung-yuen and CHEUNG Kam-yiu, on the 22nd day of December, 1972, at Room 1617, Hong Kong Hotel, Tsim Sha Tsui, Kowloon, in this Colony, unlawfully trafficked in dangerous drugs, namely 1,400 grammes of a mixture containing 1,018.2 grammes of salts of esters of morphine."

"Trafficking" is defined in s.2 of the Dangerous Drugs Ordinance as including

"importing into Hong Kong, exporting from Hong Kong, procuring, supplying, or otherwise dealing in or with the dangerous drugs"

and the contention is that a charge which does not specify the nature of the trafficking is defective. It must be observed that in the course of the trial counsel expressly told the judge that he had not gone so far as to say that the charge was bad and we think he was right not to have done so. He has in this Court relied upon WONG Yin-yu v. Reg. 1972 H.K.L.R. 6, where the charge was possession of dangerous drugs for the purpose of unlawful trafficking, but we find nothing in that case to support this appeal: the contention there was that the prosecution had not established that the possession was for any form of trafficking within the definition. The indictment in the present case follows the words of s.4, which creates the offence, and in our view it is valid. Nor do we think that the Crown was under any obligation to give further particulars. Accordingly the application for leave to appeal against conviction must be dismissed.

5. As to the sentences, counsel emphasised that both Appellants were first offenders and he also submitted that even if the entrapment of the Appellants would not vitiate the convictions it was a factor in mitigation of sentence. The learned judge expressly said that he did not find any mitigation in the manner in which the Appellants were caught and we think he was right: as in WOO Sum v. Reg. 1968 H.K.L.R. 475, 486 "no element of unfairness was disclosed by the evidence". We think the sentences imposed were right and the applications for leave to appeal against the sentences are also dismissed.

12th November 1973.

Representation: