HKSAR v. Tang Wing Sum

CACC395/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.395 OF 2004

(ON APPEAL FROM HCCC NO.329 OF 2003)

______________________

BETWEEN

______________________

Before : Hon Stuart-Moore Ag.CJHC, Lugar-Mawson and McMahon JJ in Court

Date of Hearing : 1 December 2004

Date of Judgment : 1 December 2004

________________

J U D G M E N T

_______________

Hon McMahon J (giving the judgment of the Court) :

1.This is an application for leave to appeal against sentence only.

2.On 23 August 2004, the applicant pleaded guilty before Nguyen J. to two counts of trafficking in heroin, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  The amount of heroin involved in the offence the subject of the first count was 30.48 grammes and in the offence the subject of the second count was 228.3 grammes.

3.The applicant was sentenced to four years and four months’ imprisonment on the first count and to eight years and three months’ imprisonment on the second count.  Three months only of the sentence imposed in respect of the first count was ordered to be served consecutively with the sentence imposed in respect of the second count.  That resulted in a total sentence of eight years six months’ imprisonment.

4.The facts of the offences were before the judge in the form of a summary of facts.  On the day of the offences, the applicant was seen by a police team on an anti-narcotics patrol holding two lemon tea cartons outside a village shop in Yuen Long.  The applicant was intercepted by the officers and inside the tea cartons were found the dangerous drugs the subject of the first count.

5.The applicant was then arrested and cautioned.  He volunteered that he had just come from his residential premises in a nearby village house.  He was found to have keys to those premises upon him and the applicant led the police team to those premises which was one of four units in the house.  Using his keys the police entered the applicant’s premises so as to search them for drugs.

6.The applicant then further cooperated with the police.  He took them to various locations within the premises where the drugs the subject of the second count were found.  Subsequently, the applicant participated in a video recorded interview in which he made complete admissions to trafficking in all of the drugs found.

7.Mr Oliver Davies for the applicant accepts that the sentences imposed fall squarely within the guidelines suggested in R. v. Lau Tak Ming [1990] 2 HKLR 370, but advances two grounds of appeal. 

8.The first ground is that the judge in imposing sentence upon the applicant failed to sufficiently take into account the degree of cooperation offered to the police by the applicant in leading them to the drugs found in the applicant’s premises.  Mr Davies argues that were it not for the applicant’s cooperation the drugs the subject of the second count would not have been found.

9.The second ground is that the judge failed to give proper weight to other mitigation concerning primarily the positive good character of the applicant.

10.So far as the first ground of appeal is concerned, Mr Reading SC for the respondent seeks leave before us pursuant to section 83V(1)(a) of the Criminal Procedure Ordinance, Cap.221 to produce the witness statements of three police officers.  By those statements Mr Reading seeks to establish that the arresting police were already aware of the applicant’s connection with the house in which his premises were located before his arrest.

11.It is true to say that of the statements sought to be produced only two, that of WDPC 55458 dated 18 September 2003 and that of DPC 51296, also dated 18 September 2003, provided direct evidence of the applicant having been seen going into or leaving the village house in which his premises were located.  The statement of the remaining officer DPC 50522, dated 16 September 2003, simply refers to that officer being told by WDPC 55458 prior to his arrest of the applicant that the applicant had been seen leaving the village house containing the applicant’s premises.

12.The statement of WDPC 55458 did not form part of the committal bundle, but we accept from Mr Reading that it was to be made part of the trial material by way of a notice of additional evidence.  The statements of DPC 51296 and DPC 50522 did form part of the committal bundle.

13.It seems to us that by his first ground of appeal, Mr Davies has directly raised the issue as to whether the applicant had not merely cooperated with the police, but additionally had provided them with information as to the location of the drugs the subject of the second count without which the offence relating to that count would not have been detected.  That being so the material sought to be produced by the respondent seems to us to be necessary to determine the issue as to whether, without the applicant’s cooperation, the drugs the subject of the second count would have been found and we allow all three statements to be produced before us pursuant to section 83V(1)(a) of the Ordinance.

14.From the statements now produced before us, it is quite plain that the drugs contained in the applicant’s premises would inevitably have been found.  The police knew of the applicant’s connection with the village house in which his premises were located, and they had found his keys upon his person when, or shortly after, he was arrested.

15.In those circumstances, this cannot be said to be a case which falls within the mitigating principle enunciated in cases such as R. v. Cheng Kong Ngan,CACC 4/1995 and R. v. Ho Chi Keung, CACC 783/1997 where, without the assistance provided by the appellants, the offences committed by themselves or others would not have been detected.

16.What remains then is simply that the applicant cooperated with the police.  The judge was aware of that and specifically referred to the applicant’s cooperation when imposing sentence.  In our view the full discount given to the applicant for his plea of guilty properly reflects the degree of his cooperation.  Accordingly, the first ground of appeal must fail.

17.Mr Davies’ second ground relies primarily on the good character of the applicant as evidenced by his behaviour whilst remanded in custody awaiting trial for these offences.  During his time in custody, the applicant converted to Christianity and became a counsellor to other inmates.

18.While that is commendable, the authorities are clear that sentences relating to serious drug offences are rarely discounted by a person’s previous good character.  In the present case, though the judge decided not to take into account the previous convictions of the applicant for possession of marked diesel fuel, it was a fact that the applicant did have minor previous convictions, and in our view his previous good character was not such as to require the judge to further discount the sentences imposed after allowing for his plea of guilty.

19.This ground must fail also and the application for leave to appeal against sentence is dismissed.

Mr John Reading, SC, DDPP and Mr Liu Yuen Ming, SGC of the Department of Justice, for the Respondent

Mr Oliver Davies, instructed by Messrs Jal N. Karbhari & Co., for the Applicant