Wu Him Fong v. The Queen

CACC000459A/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 459 OF 1968

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Coram: Hogan C.J. and Mills-Owens J.

Date of Judgment:19 December 1968

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JUDGMENT

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1. In determining the appeal against the sentence of 7 years' imprisonment in this matter, we are faced with a situation where the appellant told a story which has essentially been rejected by the verdict of the jury.

2. He represented himself as being no more than a pak-pai driver who on the date of the offence, the 13th May, 1968, picked up a passenger at the North Point Pier in accordance with an arrangement made between them the previous day; he said that, on his passenger's instructions, he drove to a side road, that he was told to stop and turn the car where another man was standing, that, under instructions from the passenger, the passenger and the other man loaded five sacks into the boot, whilst the appellant did nothing more than make room for them; that his passenger then instructed him to drive to Gloucester Road where the passenger alighted telling the appellant to wait; that he waited in the car for 15 minutes, alighted to get a drink, having locked the doors and the boot, then walked up and down for a while and, eventually, feeling unwell, went home leaving the car where it was, having been at the scene for about an hour; and that he remained at his home in Sek Pai Wan until the 18th, ill in bed all the time, and on the 18th moved to Aplichau with his family where he was arrested on the 20th. He said the move was caused by the unsafe nature of his residence at Sek Pai Wan due to typhoons the previous year but agreed that, after his arrest, his family moved back to it. He maintained that it was because of his illness and because he did not know his passenger's address that he made no effort to contact his passenger. This story would indicate complete ignorance of the contents of the sacks which had been shown to contain 427.7 pounds of raw opium. The jury did not accept this lack of knowledge. Precisely how much of the rest of his story they rejected or believed we do not know.

3. It has been urged upon us that because the appellant had no previous record and was nothing more than a pak-pai driver who acted foolishly in transporting a passenger with contraband goods, a sentence of 7 years is unduly harsh and must come with a sense of shock particularly as opium is a "soft" rather than a "hard" drug.

4. Whether the appellant was or was not a pak-pai driver was not in issue; essentially, the defence was lack of knowledge of the contents of the sacks. That he was in possession of 427.7 pounds of raw opium with knowledge of its nature has been conclusively determined by the jury's verdict; that this opium was undergoing that process which brings it from the producer and importer to the ultimate consumer is equally clear and that, in transporting it, the appellant was helping it through an important and hazardous step in that process which can bring such lucrative gains to all those concerned is no less apparent. Whether he was to derive a substantial share of those gains or merely a small sum, and whether he was a large or minor cog in the machine bringing this substantial quantity of unauthorised dangerous drugs to those who would consume and suffer from them we do not know. The extent of his implication does not emerge with any certitude from the evidence and the verdict found by the jury. We can only be sure that he had knowledge and we can safely deduce that he was going to derive some benefit from his share, be it large or small, in the process of getting this quantity of opium on to the illicit market, where it could form the base for morphine or heroin, sometimes referred to as "hard" drugs.

5. In a recent case (No.1 of the October Sessions 1968) where a larger quantity of drugs were uncovered near Sai Kung, the trial judge drew a distinction between those who had assisted in the transport of the drugs basing the distinction on the difference between the profit or gain they expected to receive. One who was getting $2,000 for his share in the transport received 7 years whilst another, who was to get only $300, received 3 1/2 years. It may be that the latter's family of 11 children and his aged dependent mother may have played some part in the large difference in sentence although the judge referred to nothing but the difference in the profit from the transaction.

6. It has been represented on the appeal that this is a case where the appellant was a victim of his own cupidity. But even on that, most favourable, view of his conduct, a case of this nature - involving as it does a large quantity of drugs, the transportation of which the appellant was consciously facilitating - must attract a heavy sentence of imprisonment. The fact that the appellant is a first offender can have little, if any, weight in his favour in the circumstances of the case. Whilst it is not shown that he was a major figure in the transaction, nevertheless he played a not unimportant part in bringing this large quantity of drugs to or towards their ultimate destination. In these circumstances we are unable to say that a sentence of 7 years' imprisonment is excessive. Nor is it out of line with sentences imposed in comparable cases.

7. Accordingly the application for leave to appeal against sentence is also refused.