R. v. Wong Sze Cheong

CACC000046/1994

IN THE COURT OF APPEAL

1994, No.46
(Criminal)

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Coram: Hon. Power, Ag. C.J., Litton, V.-P. & Bokhary, J.A.

Date of hearing: 3 May 1995

Date of judgment: 3 May 1995

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced two counts of trafficking. The counts read as follows. First Count: on the 11th day of December 1992 at Block E, Garden Rivera, Shatin, New Territories, Hong Kong, the applicant unlawfully trafficked in a dangerous drug, namely 2,105.79 grammes of a mixture containing 1,913.36 grammes of salts of esters of morphine. The second trafficking count related to the same day and place except that Flat 1 was particularized. It alleged that the applicant unlawfully trafficked in 10,511.13 grammes of a mixture containing 9,270.05 grammes of salts of esters of morphine. He pleaded not guilty to both of those counts and was, after trial before Deputy Judge Yeung and a jury in the High Court, found guilty on the first charge and not guilty on the second. He was then sentenced to 22 years' imprisonment. He now appeals against both conviction and sentence.

2. It was the Crown case, and I quote from the summing-up, that:

"In the morning on the 11th of December, 1992, at shortly after 10 o'clock, the defendant was seen driving a private car number FA 3668 into the car-park on the ground floor of Block E of Rivera Garden in Shatin. After parking the car in space No.132, the defendant walked through the exit door and entered the lift lobby of Block E of Rivera Garden."

"The defendant's movement, of course, was being monitored by members of the surveillance team of the Narcotics Bureau."

"According to the officers, the defendant was in fact accompanied by the second witness when he took the lift to go up to the 23rd floor.

After leaving the lift on the 23rd floor, the defendant was seen turning towards the direction of Flat E1 and E8, whereas the second police officer turned to the other direction, but he was able to hear the sound of the opening of the iron gate and the door with keys. This officer then walked towards the direction of Flat E1 and E8. He was able to see the door of Flat E1 being closed by someone from the inside, although he was unable to see who was actually closing it.

This officer then took the same lift to go down to the ground floor. Together with the first officer, they watched the monitor of the closed circuit television at the management counter. They said five minutes later, the defendant was seen entering the lift on the 23rd floor to come down.

When the defendant came out of the lift on the ground floor, he was stopped by these two officers. The defendant of course was carrying that brown carrier bag - that is exhibit P1 - by its handle, according to the officers. He did not resist and was quite calm when being told that he was suspected to be in possession of dangerous drug."

"When the defendant was asked what those three blocks of substance were, according to the officer, he was silent. The defendant was then arrested for the offence of possession of dangerous drug. On being cautioned, he again made no reply, according to the officers.

The defendant was then taken up to the 23rd floor of the building to wait for the arrival of police officers of the Operations Section of the Narcotics Bureau."

On arrival one of the officers took the exhibits that had been seized from the applicant. This officer then used the keys seized from him to try to open the iron gate and the door to Unit E1. Two of the seven keys were found to fit the iron gate and the door. Entrance was gained into the premises by the officers. The premises were found to be unusual. There was neither furniture nor electrical fittings. The premises were then searched. Inside the bedroom there was a red plastic box containing fifteen blocks of suspected dangerous drug, that is the subject matter of the second charge. Other items were also seized from the premises which included paper cutters, cardboard papers, adhesive tapes, travelling bags, etc.

3. The only other fact to which reference need be made was the agreed evidence that the defendant's right thumb print and two fingerprints were lifted from three pieces of adhesive tapes which were affixed to two pages of newspaper, both dated 19th May 1992. This paper had been used to cover the air-conditioning outlets inside two rooms in the flat in question. It was also an agreed fact that the defendant rented the flat in question for a term of two years at $5,300 a month by signing a lease agreement on 30th April 1992. So much for the facts as recited in the summing up.

4. The applicant gave evidence in which he said that he had rented the flat for a friend Mr. Chau Wah in April 1992. He said that he gave the keys of the flat to Mr. Chau and that he went there only once in May in 1992 when he helped Mr. Chau to seal an air-conditioner outlet. He said that on 11th December 1992, that is the day of the offence, he met Mr. Chau by arrangement and that Mr. Chau gave him the keys and asked him to go to the flat to get a sample for a Mr. Chan. He explained that Mr. Chan was the person who was interested in purchasing the car FA3668 which he had been driving on the day of the offence and which he had been commissioned to sell. His occupation was a used car salesman. He said that when he got to the flat he went up in a lift and got the sample, that he did not look inside the bedroom as the door was closed, that he took the sample downstairs and that he was then arrested.

5. The judge when summing up referred to his evidence as to what had occurred when he was at the flat as follows:

"He said he noticed the flat was quite empty and he wondered why it was so. He also said the door to the bedroom was closed and he did not go into the bedroom. He said he then took the lift down to the ground floor."

6. His evidence as to what occurred on the ground floor was at variance with that of the police regarding his arrest but this conflict is of no consequence in the context of this appeal. The jury returned a verdict of 5:2 of guilty on count 1. Initially they were unable to agree as to the second count saying that they were divided 4:3.. However after a further direction from the judge they returned with a verdict 5:2 of not guilty on that count.

7. The sole ground that is argued today by Mr. Grounds, who appears for the applicant, is that the conviction was unsafe and unsatisfactory as the verdict of guilty by a majority of 5:2 on count 1 was repugnant to and inconsistent with the verdict of not guilty by a majority of 5:2 on count 2. The real thrust of this ground is contained in particular No.3 which reads as follows:

"(3) As a matter of commonsense, if the Applicant was not aware of the presence and nature of the drugs within the flat, he could not have been aware of the nature of the drugs within the bag which he took from the flat."

The trial judge was at pains to tell the jury to consider each count separately. The jury clearly approached their duty with care and caution. Not surprisingly, given the evidence, they had no doubt as to the possession and knowledge of the dangerous drugs by the appellant which were the subject of the first count which the applicant was carrying when he was apprehended. When they came to consider the drugs in the flat, the subject of the second count, they were entitled to ask themselves whether the applicant was any more than a courier as he, although of course denying knowledge, said he was. They were clearly not satisfied beyond reasonable doubt that he was anything more than he claimed himself to be. Even if he was a knowing courier of drugs all that that would necessarily mean is that he was trafficking in the drugs which he was actually carrying. He would not necessarily be trafficking in the rest of the drugs which made up the huge supply from which the drugs which he carried had come. And that is so even if he had knowledge that the drugs were in the flat. Knowledge alone would not be enough. This was not a case of inconsistent verdicts. The jury, we are satisfied, were simply, given the evidence of the applicant, left with a doubt as to the depth of his involvement and they gave him the benefit of that doubt.

8. We deal finally with the matters raised in the 5th and 6th particulars. They read as follows:

"(5) The jury demonstrated by their question after retirement that they were unsure as to their proper approach.

(6) The learned Judge's answer to the question was unhelpful and wrong on the particular facts of the case. The reality was that the two counts stood or fell together."

9. When the jury returned they asked the judge to clarify a matter. The question was in the following terms:

"We have been discussing the case for a long time and would appreciate your help with the following namely, if the defendant is guilty of the first count, do we have to find him guilty of the second count?"

The judge directed them as follows:

"I thought I have emphasised this morning in my summing up to you that these two charges are two entirely separate charges and you should consider them separately and return a verdict in respect of each of them.

Even if you come to the conclusion of his guilt or innocence in respect of the first count, that does not necessarily mean that you should come to the same conclusion in respect of the second count. They have to be dealt with separately and you have to consider the evidence for and against the defendant in respect of the two counts separately."

He went on to say:

"So far as the second count is concerned, the issue you have to resolve is whether he was in possession of the drugs in the sense of whether he was in control and custody of them, and whether he was aware of its nature.

He then went on to explain the concept of custody and control. He said finally:

"....the issue to resolve is whether the defendant was aware of the existence of the drugs (the subject matter of the second charge) whether he had the ability and intention to take it into his physical possession should the need arise, and whether he was aware of the nature of those drugs (subject matter of the second charger). Once you have resolved this particular issue, then I don't think you will have any difficulty in reaching a verdict on the second count either."

This direction was, we are satisfied, a proper one. It was plainly one which the jury heeded when reaching their verdicts. They were entitled to reach the verdicts they did. There was nothing irrational in the conclusions to which they came. There is, we are satisfied, no inconsistency such as to render the verdict on the first count either unsafe or unsatisfactory and the application to appeal against conviction must therefore be refused.

10. The applicant also appeals against sentence. He was sentenced to 22 years' imprisonment. The trial judge took a starting point of 25 years. He was acting on the basis of the guidelines in Lau Tak Ming which placed the quantity involved, almost 2 kilograms of narcotic content, in the "very large quantity" category.

11. Mr. Grounds has argued that the sentence of 22 years was manifestly excessive and wrong in principle. He submits that the trial judge's starting point of 25 years was manifestly excessive, that it should have been somewhere in the vicinity of 22 years and that the reduction for youth and good character should have been about two years reducing the sentence to 20 years. Given the guidelines in Lau Tak-ming, we find ourselves unpersuaded as to the correctness of this submission. The judge took a starting point which was squarely within the guidelines. The applicant had in his possession of more than three times the quantity that would have called for a sentence of 20 years. He gave what was a proper discount for the factors which we have mentioned reducing the starting point to a sentence of 22 years. There is nothing that calls for our interference in this sentence and the application must be refused.

Representation:

Mr. I.C. McWalters (Crown Prosecutor) for the Crown.

Mr. C. Grounds instructed by Messrs. S.Y. Chu & Co. for Applicant.