The Queen v. Lo Koon Sau

CACC000499/1988

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Coram: Hon Fuad, V.-P., Hunter, JA & Mortimer, J

Date of Hearing: 23 May 1989

Date of Judgment: 23 May 1989

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J U D G M E N T

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Hunter, JA :

1. The applicant Lo Koon Sau was convicted after trial by H H Judge Caird an 20th September 1988 on two charge. The first charge was of trafficking in dangerous drugs. The charge alleged that he and the first defendant Wong Kam Choi on 29th April at Lucky Dragon Restaurant, Des Voeux Road West, trafficked in a dangerous drug, namely 2.943 kilogrammes of opium in the form of raw opium. The second charge, brought against this applicant alone, was of possession of dangerous drug for the purpose of unlawful trafficking. It was charged that on the same day at Wanchai Road junction of Mallory Street he had in his possession a dangerous drug, namely the same, quantity of raw opium.

2. The trial was unusual to this extent that the prosecution evidence was wholly agreed and reduced to writing. It can briefly be summarised in this way. Officers of the Narcotics Bureau kept observation on this Restaurant on the day in question. At about 3.25 pm the first defendant, Mr Wong, arrived with a friend and sat down. He was joined about 10 minutes later by the present applicant, the second defendant. They conversed for a while until at about 5.50 pm, the first defendant left, went to his ship moored at a nearby pier, and returned with a plastic bag. This plastic bag was later found to contain the quantity of raw opium named in the charges. He brought the plastic bag back, handed it to the second defendant, who opened it and looked inside. The second defendant then produced some money, the quantity of which could not be observed. Shortly after that the second defendant and the present applicant left the Restaurant and boarded a tunnel bus. Probably some half an hour later this stopped at the location in Wanchai named in the second charge, at which point Narcotics officers boarded the bus, arrested this applicant, and found him to be in possession of the plastic bag and of the raw opium it contained.

3. In those circumstances it was accepted in the Court below that presumptions arose under section 47 of the Ordinance arising from possession of the plastic bag, first of knowledge of the existence of the raw opium and secondly of knowledge that it was a dangerous drug. Secondly as against this applicant in relation to the possession charge presumption arose under section 46 from the quantity of opium that it was in his possession for the purposes of unlawful trafficking. The trial was accordingly conducted on the basis whether or not either or both defendants could rebut these presumptions.

4. The defence of both ran along these lines. The first defendant, who was a seaman, said that this bag was given to him by a Mr Ho in Mainland China. He was asked to bring it to Hong Kong, and was told that it contained herbal medicine. When he got to Hong Kong Mr Ho was not there to meet him, so he rang the applicant, to whom he had been introduced by Mr Ho some six months previously, and asked him to take delivery of this parcel and hold it for Mr Ho. That is how he came to pass the parcel as it were to this applicant. The applicant's story was similar, namely that he received the parcel in good faith believing it to contain herbal medicine.

5. Both defendants gave evidence in support of those accounts. Unfortunately for them they gave their evidence in such a way that neither carried any conviction, neither was believed, and in the judge's estimation failed to rebut the various presumptions that arose against them. In those circumstances the judge convicted this applicant on both charges, the offence of trafficking at the Restaurant and the offence of possession at the bus stop in Wanchai.

6. Before this Court, counsel has taken two points in support of the application for leave to appeal against conviction, neither of which were closely examined in the court below. The first argument is that the two charges where in fact alternatives. He suggests that the facts really amount to the single offence of dealing with this particular consignment of raw opium, and submits that there was not sufficient separation in time and place between the Restaurant and the bus stop to constitute separate offences. He suggests that it is contrary to any concept fairness that the applicant should be convicted of both. He acknowledged that he could be charged with both. He acknowledged the correctness of the judge's ultimate view that a concurrent sentence should be imposed following his conviction. But he challenged the proprietary of the conviction on the second count itself, not so much on the basis that it would have any effect upon the penalty imposed upon this Applicant, but that in the future his record would look better because it would contain one conviction and not two.

7. In our judgment the great problem about that submission is that the two offences charged were in fact separate offences. What happened at the Restaurant constituted trafficking in that quantity of drugs. Something like half an hour later, he was in possession of that drug in Wanchai for the purposes no doubt of future trafficking. They were separate offences, separately charged in different locations. It is perfectly true that on the charge of trafficking under section 4 it is proper for a jury or a District Judge to return any alternative verdict allowed by the Third Schedule of the Ordinance and one of those alternative verdicts is a verdict of possession. But upon the facts found by the judge here that could only extend to possession at the Restaurant on the first charge. It could not have extended to possession at the bus stop on the second charge. The real difficulty we think about Mr King's submission for the applicant is that a District Judge can enter an alternative verdict if the alternative is allowed by the schedule, on the facts that he finds. Really counsel, under the guise of unfairness, is inviting us to say that the District Court Judge had something approaching a dispensing power, and was able to say that it was not really fair to convict this applicant of the two separate offences that he found proved. We do not believe that there is any authority which supports that proposition.

8. We have been referred to two cases in particular. The first is R v John Harris (1969) 53 Cr App R 376, where the Court of Appeal, Criminal Division in England said it was improper for separate verdicts to be recorded against the same defendant arising out of, and I quote the language of Edmund Davies LJ :

9. "One and the same incident".

In the circumstances they quashed the lesser of the two convictions. But that was a charge arising out of almost identical facts on certainly the same occasion. The same situation arose in Hong Kong in the case of R v Lam Kwok Hung Cr App No 477 of 1988, where not only did you have one incident arising on the same occasion, but you had a charge sheet where the second charge was expressly said to be alternative to the first. This Court held hat where the charge had been framed in that way, a verdict of guilty on the first precluded any conclusion of guilt on second. That was really a decision on the construction of the charges in that case, arising out of one incident.

10. Here as it seems to us we have two separate incidents. On the facts as found by the judge he had no alternative but to convict of both. At the same time he took the very proper step of imposing a concurrent sentence on each. As far as the record is concerned the difference does seem exceedingly slender. We give credit to any future sentencing court to be able to determine from the look of those two sentences, the coincidence of date and precise quantity, that they arose in circumstances of close similarity.

11. So we cannot accept Mr King's submissions on his first ground.

12. The second ground he put forward as he said with some trepidation. He sought to persuade us in effect that the presumption of knowledge did not apply in relation to the first charge but conceded that it did in fact apply as against his client from the moment the agreed facts recorded that upon the first defendant's return from his ship this plastic bag was handed to him in the Restaurant. I think his best point there perhaps it is that this matter was not spelt out by the judge in his reasons because the trial had taken the unusual course, first with the whole of the prosecution evidence being agreed, and then everybody concentrating upon listening to the evidence of the two defendants to see if it was credible and if they could rebut the presumptions. Those the two crucial issues of fact raised at the trial, and perhaps some of the niceties which had been urged upon us were not so closely looked at.

13. In the circumstances we can see no reason for doubting the judge's conclusions and his conviction of this applicant. The application fails and must be dismissed.

14. The applicant also seeks leave to appeal against the concurrent sentences of two and a half years' imprisonment imposed upon each of the two charges.

15. The trial judge properly directed himself in relation to the tariff laid down in R v Lau Yiu Nam [1986] HKLR 964 in the light of the quantity of raw opium which was very nearly three kilogrammes. From a starting figure of three years derived from this tariff, he mercifully deducted six months to give the applicant credit for the saving in time at the trial by reason of the agreement of the prosecution evidence. It seems to us that that was a generous deduction, and that there is no possible basis for criticising this sentence.

16. This application likewise fails and must be dismissed.

Representation:

A King (DLA) for Applicant

A A Bruce for Crown/Respondent