The Queen v. Tam Kin-sun and Another

CACC000320/1984

BETWEEN

Coram: Sir Alan Huggins, V.- P., Cons & Fuad, JJ.A.

Date of hearing: 31st January 1985

Date of delivery: 31st January 1985

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JUDGMENT

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Sir Alan Huggins, V,-P.:

1. These two Applicants were convicted in the High Court of manufacturing a dangerous drug and possession of a dangerous drug for the purpose of unlawful trafficking. The 2nd Defendant has sought leave to appeal against his convictions. Only one matter has been advanced on his behalf by counsel and that relates to the admission of a confession. In our view there is no substance in the submission that the judge was wrong in his approach to the issue of admissibility.  He held that the confession was voluntary and he saw no reason to exercise his discretion in favour of excluding the confession. The argument which has been advanced is that the judge said that there had been a breach of the Judges' Rules in that the 2nd Defendant was not charged as soon as there was evidence upon which he ought to have been charged, and that he went on

"That breach does not govern the issue of admissibility nor does it govern the way the discretion should be exercised. It is simply a matter for consideration."

2. In our view there is no error whatever in the judge's approach.  The possible questioning of the Defendant when he should not have been questioned did not necessarily make the statement involuntary and it was open to the judge on the evidence to find that the statement was voluntary. Equally it was a matter for the fudge whether or not he would exercise his discretion. In relation to both questions he considered the alleged irregularity and there is no ground upon which we could interfere. Accordingly the application of the 2nd Defendant is dismissed.

3. The application of the 1st Defendant relates to both the charges. The first count was one of manufacturing. The submission is that in relation to that it was material that only a small quantity of drugs was found in the premises. That is not a material consideration: the question which the judge had to consider in relation to manufacture was what was the capacity of the factory. There is no reason to think that he came to a wrong conclusion as to that. It was submitted to him that the factory was not a large one and the sentence he passed was one of twelve years' imprisonment. That indicates that he accepted that the factory was not a large one, for, if it had been large, a much heavier sentence would have been justified. What is then submitted is that the judge did not give proper weight to the plea of this Defendant: the 2nd Defendant had pleaded Not Guilty and received the same sentence: this Defendant pleaded Guilty only after his confession had been admitted after a trial within the trial. That was a plea at a somewhat late stage but that still did not negative the weight to be given to the plea entirely. What the judge then said was that, although he would in the normal circumstances have made some discount for the plea, he was not going to do so because the 1st Defendant had gone into the witness box and perjured himself in endeavouring to defend the 2nd Defendant. In our view that was not a proper approach. The fact that the Defendant may have committed perjury is immaterial to the discount for a plea. If he was to be punished for committing perjury, he should have been indicted and tried for that offence. We therefore go back to the stage when the judge said- that time had been saved and some degree of remorse had been shown. The degree of remorse was minimal having regard to his late plea. Nevertheless we think that some allowance should have been made and we think that a sentence of eleven years' should be substituted for that of twelve.

4. As to the second count, the sentence of twelve years' imprisonment is considerably in excess of that which has been laid down as appropriate for a quantity in the region of 446.44 grammes. The judge was obviously affected by the fact that this man was manufacturing, but that was something which should have been reflected in the sentence on the first count and not that in the second. We think that a proper sentence here would, but for the plea, have been one of eight years' (the maximum for that quantity of drugs indicated in the guidelines), but we would make an allowance again of twelve months for the plea and therefore we substitute a sentence of seven years' for that which was imposed by the judge.

31st January 1985

Representation:

Cheng Huan for Appellants

G. Jackson for Crown