Wong Yuk-sum and Others v. The Queen

CACC000227/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 227 OF 1969

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Coram: Hogan, C.J., Blair-Kerr, J., McMullin, J.

Date of Judgment: 2 August 1969

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JUDGMENT

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1. In this case, an application for legal aid by each applicant was refused by the Trial Judge but was subsequently renewed to the Full Court. We adjourned the matter, when it first came before us, for the purpose of seeking the assistance and advice of the Director of Legal Aid. He, in turn, sought the opinion of the barristers who appeared for the accused in the court below. Having, with the benefit of this assistance, carefully considered the applications made to us, we decided to refused them, but it seems desirable to deal somewhat more fully with the considerations which are, we think, relevant to applications of this kind, particularly as recent publicity on this subject has been somewhat tendentious. It is disturbing to see the extent to which ordinary readers of the daily press could have been misled by contributions professionally written and professionally inspired, which, by quoting references and authorities out of context, may have created a false impression. When criticising, as anyone who had heard them was perfectly ontitled to do, decisions of the Full Court on hearing appeals, the overwhelming majority directed to sentence only, much has been made of observations by courts in England as to the circumstances in which legal aid should be granted but with little or no indication that these ...(illegible) were directed to trials at first instance. The purpose appeared to be the creation of an impression that the appeals in question, if heard in England, would have been the subject of legal aid. No reference was made to the approach normally adopted when dealing with criminal appeals in England where, according to leading text books, such as Archbold's Criminal Pleading and Practice (36th Ed. para. 872) and Halsbury's Laws of England (3rd Ed. Vol. X p.530), in appeals against sentence, "legal aid is granted only in very exceptional circumstances". This principle was formulated shortly after the creation of the English Court of Criminal Appeal but is not shown to have been qualified during the general expansion of the use of legal aid in England, which has been apparent in more recent years.

2. There remains a different and more debatable question as to whether, either at first instance or on appeal, the approach adopted or proposed for adoption in England should be followed, virtually automatically and without discrimination, here; bearing in mind that this is not so much a matter of procedure and practice uncovered by local legislation, within the terms of section 9(3) of the Criminal Procedure Ordinance, as the interpretation of legislation which is not identical with that in force in England. The Hong Kong legislation gives a wider discretion to the court which, inter alia, is not required to resolve every doubt in favour of the applicant but can, when unable to remove any doubt, give it such weight as appears proper to the court. In England, it has been said, whilst refusing to fix a specific term of years, that the cases would be rare in which a court of first instance contemplating a severe sentence should not feel that legal aid is desirable; that may well be but it may also be well to remember that there are certain types of offences which so clearly call for a severe penalty that the cases in which such a penalty should not be imposed would also be rare. Moreover, the Full Court in 1966 when referring to the requirements of the administration of justice in England and in Hong Kong was careful to refer to a limiting factor of "all things being equal" (R. v. Chen Wan-yung 1966 H.K.L.R. 845). It was far from suggesting that no account should be taken of the different circumstances in the two territories and, of course, circumstances are by no means identical. Quite apart from any question of money, the proportion of lawyers to population is very much lower here than in England and although this may be of more conce...(illegibl) to those responsible for deciding when and to what extent the social service provided by legal aid can be extended into additional fields, it is not a factor which can be entirely overlooked in individual cases by those who need to bear in mind, not only that difference of language and background may make such aid particularly necessary in some cases, but that, legal aid granteded unnecessarily and in respect of matters where it can be of little assistance, may make it less readily available where the need is greater.

3. It has been suggested that not to make free legal aid available, when requested, in every criminal case of significance is itself an injusticean observation which seems to accord ill with the reputation for the fair administration of justice built up over many long years by the British courts, before legal aid, a comparatively recent innovation, was introduced - but those who feel a measure of anxiety on this score may find comfort in the knowledge that in a criminal case where an accused is unrepresented, the court is solicitous of his interests and usually alert to protect them. That the absence of legal aid is not in itself likely to lead to injustices of substance would seem to be indicated by the results of criminal trials in the Supreme Court of this territory where the availability of free legal aid, previously confined to capital cases, was extended to all cases in April 1962. For the 7 years prior to that change, the percentage of convictions was 80.5%. The percentage in the ensuing 7 years was 87.8%. Figures like these do not destroy the case for legal aid. It has a broader base and a fairer claim on our resources, not least because an accused, who has no lawyer to speak for and advise him, may feel that he has been treated less than fairly, and because the full burden of watching an accused's interest is an anxiety from which the court may reasonably expect to be relieved when possible; but the case for legal aid is not helped by exaggeration or misunderstanding.

4. Turning to the applications for leave to appeal against sentence in the case now before us, each of the accused was found guilty, the 2nd on his own plea, of possession of dangerous drugs contrary to section 10 of the Dangerous Drugs Ordinance. The 1st, 2nd and 4th accused were found guilty, the 2nd again on his own plea, of a further charge of dealing with dangerous drugs contrary to the same section, a charge on which the 3rd accused was acquitted. The 1st accused was found guilty of an additional offence; as a tenant permitting a place to be used for the unlawful storage of drugs.

5. The drugs in question were very large in quantity; 2,282 pounds (over a ton) of raw opium and 86 pounds of morphine. All this was found in two rooms of an apartment at No.52 Grampian Road, which was raided by the police on the 4th January, 1969 when all four of the accused were found on the premises. The frugs were found in cartons and tins and in gift-wrapped parcels. Packaging materials were also found. Keys to the apartment were found on each of the accused and there was evidence that the movement from the apartment of articles such as these had been seen for some days prior to the raid during which the flat was under observation by the police. The apartment was small and each of the accused admitted that he was living and sleeping there. Sentences of 10 years, concurrent, were imposed on the 1st, 2nd and 4th accused in respect of the charges on which they had been found guilty and the 3rd accused received a sentence of 8 years in respect of the single charge of which he was guilty. In imposing this sentence, the judge referred to a recommendation for leniency which had been made by the jury in respect of this accused. The reasons for this recommendation were not disclosed but the jury may have given some weight to his contention that, whilst he was present in the apartment, his only function was to act ascook and all he ever did was to cook and clean the flat and never went out with the drugs or handled the drugs at all. None of the accused had any previous convictions.

6. There was not, we think, the slightest doubt that the apartment was a distribution centre for dangerous drugs and that each of the accused, including the 3rd, knew the purpose for which it was being used and remotely or more directly made his own contribution to it. Although the 3rd accused was convicted of possession only and not of dealing, his participation in possession of the huge quantities involved, in the circumstances disclosed in this case, would suggest that the difference of two years in the punishment imposed made ample allowance for the fact that he was not convicted on both charges. The sentences imposed were undoubtedly severe but, having regard to the quantity of drugs involved and the evil nature of the enterprise on which the accused were engaged, it cannot be thought that they were unduly severe. This traffic can bring great rewards to those engaged in it and there will be little chance of checking it if severe sentences are not imposed when large quantity are involved. In the circumstances, we see no reason to interfere with the sentences and the applications for leave to appeal are refused.

Date: 2nd August, 1969.

Representation:

Judgment of the Full Court pronounced by the President.

All the four appellants in person.

I.A. Evans, Crown counsel, for the Respondent.