The Queen v. Wu Pak-kun and Another

CACC000466/1985

Coram: Hon. Li, V.-P., Yang and Kempster, JJ.A.

Date of Hearing: 27th February 1986

Date of Judgment: 27th February 1986.

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JUDGMENT

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Kempster, J.A.

1. On 29th of October of last year WU Pak-kun was found guilty by His Honour Judge Souyave at the Kowloon District Court of three 'offences - one was trafficking in dangerous drugs, another was possessing dangerous drugs for the purposes of unlawful trafficking and the third was obstructing a public officer. In respect of those offences he was sentenced to a total of 7 years imprisonment. On 1st of November he gave notice of his intention to apply to this Court for leave to appeal both against the convictions and, in the alternative, against the sentences. But on 21st of January he gave notice of abandonment of his application in relation to sentences which is, accordingly, formally dismissed. In relation to his application for leave to appeal against conviction he has this morning sought an adjournment of the hearing so that solicitors and counsel, currently not instructed on his behalf, may further consider his case. He gave us a time-table of events which showed that he had had plenty of time to arrange representation today had he so desired and this Court refused to grant an adjournment.

2. Wu has accordingly relied on the grounds of appeal which he filed last November. He states that he is not guilty of the offences in respect of which he was convicted and suggests certain discrepancies in the Crown evidence which should have led Judge Souyave to have been less than satisfied that the standard of proof was reached.

3. The facts disclosed by the Crown evidence were that on 13th July 1985, in the evening, a number of customs officers observed a vehicle, with TAM Kang-ming in the driver's and Wu in the passenger seat, parked in Shantung Street. A man called Cheung Choi was seen to get into it; then empty-handed. The vehicle moved off to Nelson Street where Cheung Choi got out; now carrying a plastic shopping bag. Cheung was intercepted by customs officers as he walked away from the car and the bag seen to contain materials subsequently found to constitute dangerous drugs. The vehicle itself was later stopped in Sai Yeung Choi Street. WU Pak-kun attempted to run away from it but was arrested by customs officers. The driver, TAM Kang-ming, drove on but he in turn was arrested when his vehicle collided with another vehicle. In the glove pocket of the car another package of materials, subsequently analysed and found to contain dangerous drugs, was discovered. WU Pak-kun gave evidence. His testimony was not accepted as truthful and the learned judge was satisfied that the offences already described were made out so as to establish guilt. Nothing that has been written by Wu or said by him this morning gives us any reason to doubt the propriety and justice of such findings. His application for leave to appeal against conviction is accordingly dismissed.

4. TAM Kang-ming pleaded "guilty" in October 1985 to trafficking in a dangerous drug, possessing a dangerous drug for the purpose of unlawful trafficking and obstructing a police officer and was sentenced in all to 7 years imprisonment by His Honour Judge Souyave on 29th October. The circumstances in which the conviction arose have already been outlined in relation to the application for leave to appeal against conviction of WU Pak-kun. TAM Kang-ming was the driver of the vehicle in which a transaction involving trafficking in dangerous drugs took place; in which other dangerous drugs were found and from which, having crashed the vehicle, he attempted at the end of the day to escape.

5. Mr. Murray, who had said all that could be said in support of Tam's application for leave to appeal against sentence, concedes that the term imposed, 7 year's overall, was a fair and proper application of the guidelines laid down by this Court in R. v. CHAN Chi-Ming ⁽¹⁾; subject to the factors which he urged upon us. The first factor was that, having pleaded "guilty" at the outset, Tam could reasonably expect a discount in relation to the sentences imposed on other defendants who pleaded"not guilty and whose pleas necessitated a trial. Judge Souyave recognised that in the normal event such a discount would and should properly be allowed on grounds of public policy. The public policy involved recognises the interest of the community in avoiding the expense incurred by and time spent on contested proceedings and of acknowledging true remorse. But the judge declined to grant Tam a discount because he took the view that, in the circumstances, he had no real option but to plead guilty and secondly that having, as the judge found, given perjured evidence in the interest of the defendants who had pleaded "not guilty", it was apparent that he was not remorseful. On a realistic basis we take the view that Tam had no option but to plead "guilty" albeit we accept the well-established principle that the behaviour of a defendant in the course of trial, whatever his plea may have been, such as giving false evidence, is not a ground upon which an otherwise appropriate sentence should be increased. Judge Souyave was at pains to explain that he was not increasing an otherwise appropriate sentence but rather declining to grant the normal discount. And he did this because he was satisfied, and he was in the best position to be so satisfied, of the absence of remorse and implicitly because by giving evidence in the course of the trial Tam had in any event wasted time and money. We do not think we can criticise this approach. The sentences were correct; both separately and overall. Accordingly we dismiss Tam's application for leave to appeal against sentence.

(1)    1979 H.K.L.R. 491

Representation:

D2 in person

Mr. Murray (R.J. Oliver) for D3

Mr. I.G. Cross for Crown Prosecutor