HKSAR v. Suen Yung Yung and Another

CACC000509/2001

CACC 509/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 509 OF 2001

(ON APPEAL FROM HCCC NO. 62 OF 2001)

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Coram: Hon Stuart-Moore VP, Yeung JA & Jackson J in Court

Date of Hearing: 22 July 2003

Date of Judgment (Re: Conviction of A1): 22 July 2003

Date of Handing Down Reasons for Judgment (Re: Conviction of A1): 1 August 2003

Date of Judgment (Re: Sentence on A1 and A2): 1 August 2003

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JUDGMENT

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Hon Yeung JA (giving Judgment of the Court):

1.The applicants appeared in the High Court (Deputy Judge Whaley with a jury) on an indictment consisting of a single charge of conspiracy to traffic in a dangerous drug, namely 60,167 tablets containing 9.75 kg of ecstasy.

2.The 2nd applicant Kusnadi Ridwan (A2) pleaded guilty to the charge and was sentenced to 13 years and 4 months' imprisonment.

3.The 1st applicant Suen Yung Yung (A1) also known as Yuyun Sunjaya pleaded not guilty. She was unanimously convicted by the jury and was sentenced to 19 years and 6 months' imprisonment.

4.A1 sought leave to appeal against both conviction and sentence. A2 sought leave to appeal against sentence.

5.On 22 July 2003, we dismissed A1's application for leave to appeal against conviction and indicated that we would hand down our reasons in due course. We reserved our decision on the applications for leave to appeal against sentence.

6.We now hand down our reasons for dismissing A1's application for leave to appeal against conviction. We also give judgment on the applications for leave to appeal against sentence.

The Background Facts

7.Between 4 June 2000 and 9 September 2000, there were 3 shipments of water heaters arriving at Hong Kong from Jakarta, Indonesia on board Singapore Airlines. On all three occasions, the shipping agents, both in Indonesia and Hong Kong were the same. The consignee was Chan Fuk Ming, who used a bogus address and his contact telephone number was that of a mobile telephone.

8.There was no evidence that the first 2 shipments contained any contraband. The 3rd shipment picked up by A1, however, was found to contain the ecstasy, the subject matter of the charge.

9.The particulars of the 3 shipments were as follows:

1st shipment

10.On 4 June 2000, a consignment of 2 water heaters arrived at Hong Kong from Jakarta, Indonesia. A Singapore Airlines Airway Bill and the House Airway Bill of Pt. Asiana Sakti accompanied the consignment. The shipping agents were respectively Pt. Asiana Sakti of Indonesia (Asiana Sakti) and Kania Airfreight (HK) Ltd. of Hong Kong (Kania).

11.The consignee was Chan Fuk Ming of Flat C5, Kingston Building, Kingston Street, Causeway Bay, Hong Kong (Tel. No. 95423254). A random search of the consignment did not reveal any contraband. A staff of Kania said it was A1 who collected the consignment on 7 June 2000.

2nd shipment

12.On 9 August 2000, another consignment of 2 water heaters also arrived at Hong Kong from Jakarta, Indonesia. There were accompanying Singapore Airlines Airway Bill and House Airway Bill of Pt. Asiana Sakti. There was also an invoice No. BC-00135 of C.V. Radjawali Sakti (Importer-Exporter) dated 8 August 2000.

13.The details of the Indonesia shipping agent, the Hong Kong shipping agent, the name, address and telephone number of the consignee were the same as those of the 1st shipment. The 2nd shipment was not searched and a middle-aged man picked it up.

3rd shipment (the subject matter of the charge)

14.On 7 September 2000, Kania received a fax from Asiana Sakti stating that a consignment of 2 water heaters would arrive in Hong Kong within a few days. The consignee was Mr. Chan Fuk Meng of Flat C5 Kingston Building, Causeway Bay, Hong Kong.

15.On 9 September 2000, the consignment arrived in Hong Kong from Jakarta, Indonesia and addressed to Mr. Chan Fuk Meng. A Singapore Airway Bill and a House Airway Bill of Asiana Sakti accompanied the consignment. There was also an invoice No. BC-00137 of C.V. Radjawali Sakti dated 7 September 2000.

16.The details of the Indonesian shipping agent, the Hong Kong shipping agent, and address and telephone number of the Hong Kong consignee were the same as the 1st and 2nd shipments.

17.The consignment was randomly selected for examination and was found to contain the tablets of ecstasy in question. The value of the ecstasy tablets ranged between HK$ 4.8 million to HK$21 million as the street price of each ecstasy tablet ranged from HK$80 to HK$350.

18.The water heaters were then repacked and taken to the office of Kania for collection by the consignee.

19.On 11 September 2000, both applicants arrived at the office of Kania in a taxi. A1 went inside saying she was collecting the water heaters for Chan Fuk Ming. There were then 2 Kania staffs present.

20.One of the staffs, PW11 Kwai Wai-ching said A1 had said to her, "Don't you recognize me?" The other staff, PW12 Yeung Pak-hin said he immediately recognized A1 as the woman who collected the 1st shipment. Apart from A1's appearance, PW12 also said he helped A1 to carry the goods to a taxi stand because she was alone. When it was suggested to PW12 that he was mistaken when he said A1 collected the 1st shipment, he said, "It was impossible".

21.A1 was arrested after taking delivery of the 3rd shipment inside the office of Kania. A2 was arrested outside. A1 was found to be carrying documents of identity and bankcards, including one in the name of Zulasmin (Zulisman).

22.When questioned, A1 claimed she did not know what was inside the cargo that she was collecting. She said someone had asked her to come to collect it. She did not identify who that someone was. A1 was then questioned again under caution. She only said she understood and did not say anything further.

23.After the arrest of the applicants, they both agreed to co-operate with the customs officers. A telephone call was then made to the number 9542 3254 (the contact telephone number of the consignee, Chan Fuk Meng) and the conversation was recorded by C & E officers on a mini disc.

24.A2 spoke to the called party (a male person) in Indonesian and then handed the phone to A1 briefly. A1 also spoke to the called party in a few words in Indonesian and then handed the phone back to A2. (Part of the conversation was in Mandarin)

Prosecution Evidence Against A1

25.There was no direct evidence against A1. The evidence against her was circumstantial and such evidence included:

(1) The circumstances of the arrest when A1 went to pick up the consignment and the telephone conversation with the called party at 9542 3254. A1 spoke briefly to the called party in Indonesian. A transcript of the telephone conversation between A1, A2 and the called party (CP) appeared as follows:

'A2: "Where do you want to put this goods?”

CP: "Where are you now?’

A2: "Still at Kania, deliver to where?”

CP: "Kania. You meet me.”

A2: "Don't.”

CP: "Why?”

A2: "That exploded, yeah. Exploded. Deliver to where?”

CP: "Deliver to where, yeah. Already exploded, yeah?”

A2: "Yeah, deliver to where? Want to deliver to where?”

CP: "It is exploded there, yeah? Exploded where?”

A2: "Sipto.”

CP: "So now where are you?”

A2: "Exploded at Kania.”

CP: "So there are police?”

A2: "Yes. where shall the goods be arranged to, quickly?”

CP: "Alright then, just throw them. I telephoned you but was not connected. So the police are there? How many people?”

A2: "A lot. Want to take-where to put this thing. I am shouting. Hello." "Where, Shatin?”

CP: "Please don't put them there. Now, is there anybody following?”

A2: "Have been caught. "Hello, the most important thing is where to deliver these goods?”

CP: "Yeah, just take them to the warehouse, just anyhow.”

A2: "You let me know.”

CP: "Where is Wei-wei?”

A2: "Here. Want to talk?" "Where is she- he or she?" "It's you." "Speak, speak.”

A1: "Hello.”

CP: "Yes, hello.”

A1: "Where is Ewan?" "Where is Ewan?”

CP: "Er, I am at,”

A1: "I am all finished here.”

CP: "Is it all finished?”

A1: "Yes.”

CP: "Ask Ridwan to listen.”

A1: "Ask you to listen.”

A2: "Hello.”

CP: "Ewan you be calm now." "How is the situation, you say it.”

A2: "Cannot, a lot of people here. So how is it now?”

CP: "Exploded, how?”

A2: "Have been discovered." "The coffee seeds have been opened." "So now they ask me to bait you out." "Where should the goods be delivered to?”

CP: "Oh if it like this, throw them to the warehouse.”

A2: "Warehouse, which warehouse?" "It's better you arrange.”

CP: "Just say anywhere, I don't know. You just say, you are.”

A2: "You say it, it is better for everyone here otherwise I will be beaten up here." "Just where to arrange them?”

CP: "Just say it Hong Kong side, at Hong Kong side." "At Hong Kong, yes, that address at Hong Kong side.”

A2: "That address." "Yes, oh that one.”

CP: "Yes, we do not know, you just say you were being asked to take it, that's all." "Yes, yes.”

"That address, that address" "Go to Sipto's address" (Background conversation.)'

After the telephone conversation, A1 was asked if she knew what A2 and the called party had talked about. A1 said they did not have anything in particular to talk about. A1 was further asked if she knew where A2 lived. A1 said she did not know the address but she had been there and would remember if she went there.

(2) The connection between the applicants and Zulisman (the prosecution suggested that Zulisman was one of the co-conspirators).

It was not disputed that on 6 September 2000, the applicants and Zulisman arrived together on the same flight from Jakarta to Hong Kong. They sat together in the same row of seats. It was also not disputed that the applicants had communicated by phone on a number of occasions on 9, 10, and 11 September 2000. There were also contacts between the telephone of A2 and that of Chan Fuk-ming (9542 3254).

According to the travel movement records of Zulisman, he left Hong Kong on 24 June 2000 and returned on 7 August 2000. He left Hong Kong again on 9 August 2000, the date when the 2nd shipment arrived in Hong Kong. On 11 September 2000 after the applicants were arrested, Zulisman left Hong Kong late in the evening for Taiwan. He did not return.

A1 lived in a flat in Royal Ascot in Shatin. A person named Zulisman rented the flat. In fact A1 was together with Zulisman when he negotiated to rent the flat. They appeared to be living together in the flat.

According to banking evidence, A1 had cashed 3 cheques on Zulisman's account between February and April 2000 for a total sum of $2.4 million. On 8 June 2000, Zulisman remitted $500,000 to A1's account in Shanghai by telegraphic transfer. On 14 August 2000, A1 also received a deposit of US$50,000 from Zulisman by bank transfer.

(3) The Kingston Building address.

The address of the consignee for the 3 shipments was Flat C5, Kingston Building, Kingston Street, Causeway Bay, Hong Kong. The address was a bogus address. There was no block C in the Kingston Building. However, there was evidence to show that A1 had once rented the premises at Flat 3, Block B, 16th Floor, Kingston Building, Kingston Street, Causeway Bay, Hong Kong.

(4) The personal background of A1.

The evidence suggested that A1 was not in any gainful employment. She once worked in Macau in gambling business. She started to accumulate significant wealth in 1997 without any apparent source of legitimate income. She had in her possession HKID card, BNO passport, a Home Visit Permit in the name of Suen Yung Yung. A1 also had an Indonesian passport and an Indonesian identity card in the name of Yuyun Sunjaya.

There were also extensive contacts between telephones registered in the names of A1 and A2 on 10 December 1999. In particular, there were 7 calls made from the telephone registered in A2's name to the telephone registered in A1's name.

26.On the aforesaid circumstantial evidence, the prosecution suggested that the only irresistible inference was that A1 was a party to the conspiracy to import the water heaters containing the ecstasy tablets in question.

Defence Case

27.A1 did not call or give any evidence. There were admitted facts to the effect that in the months of March and April of 1997, A1 worked as a unencashable chips provider earning commission of several thousand dollars per day in Macau.

28.It was suggested that A1 could not understand Indonesian, or understand enough of the Indonesian language to enable her to understand what A2 was saying to the called party in the recorded telephone conversation.

29.In any event, it was suggested that the content of the telephone conversation was ambiguous. When A1 said "I am all finished here and it is finished", it did not mean A1 was admitting guilt. It was equally consistent with the suggestion that A1 thought she had been set up.

30.A1's counsel also argued that drug traffickers could have used her as "an innocent dupe".

A1's Grounds of Appeal Against Conviction

31.The main grounds of appeal complained against the directions to the jury by the trial judge.

32.Mr. Lo, on behalf of A1 suggested that the judge had not properly directed the jury on the personal circumstances of A1 and hence there was a risk that the jury might draw an adverse inference against her based on her background. (Ground 1a)

33.Mr. Lo alleged that the judge's directions were couched in general terms and did not refer to the specific issues or questions that the jury had to resolve and hence there was a risk that the jury would reach a verdict by an irrational course of thinking. (Ground 1b)

34.In particular it was suggested that the judge should remind the jury that before they could rely on the evidence linking A1 to Zulisman, they must be satisfied that Zulisman was a party to the conspiracy.

35.It was pointed out that the called party to telephone number 9542 3584 might not be Chan Fuk Ming (the named consignee) or Zulisman who left Hong Kong in the evening on 11 September 2000. The failure to establish that Zulisman was a party to the conspiracy was in the circumstances, fatal to the charge. (Ground 1c)

36.Mr. Lo suggested that the evidence was substantial and complicated, particularly those relating to the recorded telephone conversation. The judge should therefore assist the jury by collating the evidence in greater details and analyzing them in a way favourable to A1 to ensure that the jury would return a just and true verdict. (Ground 2)

37.In particular, it was suggested that when reminding the jury of the conversation A1 had with the called party after her arrest, the judge had not at the same time (i) referred to A1's reaction upon being questioned by Customs Officers that she did not know what was inside the cargo that she was collecting and that someone had asked her to collect it; (ii) reminded the jury that A1 might not be proficient in Indonesian when she had not travelled between Hong Kong and Indonesian before January 1999 and that she had only departed Hong Kong for Indonesia on 5 occasions thereafter.

38.As PW12 said he was alone in the office of Kania when someone collected the 1st shipment, it was therefore not possible for A1 to say to PW11 "Don't you recognize me" when she collected the 3rd shipment. In any event, such assertion could be consistent with A1 emphatically trying to collect the cargo on behalf of someone else rather than an implied admission that she was the one who collected the 1st shipment.

39.Grounds 3 and 4 suggested that the conviction against A1 was unsafe and unsatisfactory when (i) the judge had failed to direct the jury that before they could conclude that A1 was a party to the conspiracy to traffic in dangerous drugs, they must be sure that she knew there was ecstasy inside the water heaters; and (ii) the judge had failed to give a Turnbull direction in respect of the identification evidence of PW12 who said it was A1 who collected the 1st shipment in June 2000.

40.In the light of the aforesaid, it was suggested that the verdict against A1 was unsafe and unsatisfactory. (Ground 6)

41.Ground 5 had been abandoned.

42.We were not persuaded that a Turnbull direction was required in the present case at all. It was not a case where identification was the sole or a substantial issue. It was also not a case of fleeting glance. PW12 was adamant that he recognized A1 because when A1 collected the 1st shipment, she was alone and he helped her to carry the goods to a taxi stand.

43.There was of course no evidence of any contraband in the 1st shipment and it was not disputed that A1 collected the 3rd shipment with the ecstasy in question on 11 September 2000.

44.The prosecution case against A1 did not depend wholly or substantially on the correctness of the identification evidence. The reference to the 1st shipment was only to provide further evidence on the background of the case.

45.The identification evidence in the present case was not the sort of identity problem which Turnbull (1997) 65 Cr App R 242 was really intended to cope with. (see R v Curry and Kable [1983] Crim L R 737)

46.The charge against A1 was conspiracy to traffic in dangerous drugs. The judge had correctly identified the 2 issues, namely (1) whether there was in fact an agreement between two or more persons to commit the offence and (2) whether A1 was a party to that agreement.

47.An agreement between two or more persons to commit the offence could not be doubted and the only live issue was whether A1 was a party to the agreement.

48.The judge directed the jury as follows:

"You must be sure of two things: firstly, that there was in fact an agreement between two or more persons to commit this offence, to traffic in dangerous drugs; secondly, that the defendant was a party to that agreement.”

"That the defendant was a party to that agreement, that is, that she agreed with one or more of the other persons referred to in the charge that the crime should be committed, and that at the time of agreeing to this, she intended that the offence should be carried out.”

"You must decide members of the jury, whether there was a conspiracy or agreement, and if so, whether the defendant was a party to it, and to decide that, you must look at all the evidence which has been put before you as to what occurred during the relevant period, including the behaviours of the defendant and each of the other alleged conspirators, namely Ridwan and the person or persons unknown."

"I should explain as well that when criminal conspiracies are formed it may well happen that one or more of the conspirators is more deeply involved and has a greater knowledge of the overall plan than the others, but that makes no difference. If that was your finding, members of the jury, it would make no difference. If you were to find they were all involved in the agreement or the conspiracy, they are all guilty of the offence and it matters not that one of them may have been more involved or had more knowledge than the other or others involved in it.”

"Provided you are sure in the case against the defendant that she did at some stage agree to the crime, namely that the trafficking in dangerous drugs should be committed and that she intended at that time that the crime should be carried out, it does not matter precisely what her role was, whether it was a major or minor role or whether she had a major or minor part in the agreement, in the conspiracy, or precisely when she became involved, none of those things matter, provided she was involved, she would be guilty as charged.”

49.The judge had made reference to the question of knowledge. In any event, to be a party to an agreement to traffic in dangerous drugs, one must have knowledge about the dangerous drugs in question.

50.In conspiracy charges, the requisite mens rea is the intention to be a party to an agreement to do an unlawful act as Lord Griffiths said in Yip Chiu-cheung v R 99 Cr App R 406 :

'The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence.”

51.The direction by the judge was succinct but clear. The judge had made reference to the question of knowledge, that the jury must be satisfied that A1 intended the crime, namely the importation of ecstasy should be carried out before she could be convicted.

52.The jury would not find A1 to be involved in the conspiracy unless they were satisfied that A1 did have knowledge about the existence of the ecstasy inside the water heaters. Without the knowledge of the ecstasy in the water heaters, A1 could not have intended any crime to be carried out.

53.The evidence pertaining to the personal background of A1 was certainly relevant. Such evidence was introduced by way of admitted facts. In particular, A1's employment in the gambling industry in Macau was introduced at the suggestion of the defence.

54.After the introduction of the agreed evidence, the parties could make use of such evidence in whatever legitimate way they considered appropriate.

55.The prosecution might have made adverse comments on A1's personal circumstances. They were entitled to express their views on the admitted facts.

56.The judge had reminded the jury of such evidence and had directed them if they did not agree with counsel's views, they must disregard such views.

57.The complaint that the jury's guilty verdict was reached on the basis of A1's background is not justified.

58.At the outset of his summing-up, the judge had made clear to the jury that the prosecution case against A1 relied entirely upon circumstantial evidence.

59.The judge had also clearly directed the jury that an inference of guilt or an inference against the interests of the defendant could only be drawn from the circumstantial evidence if it was the only reasonable inference to be drawn.

60.We did not agree with Mr. Lo's suggestion that every time the circumstantial evidence was referred to, the judge was obliged to remind the jury how they should approach circumstantial evidence. Such approach will create an unnecessary and unbearable burden on a trial judge.

61.In a trial by jury, the trial judge should of course properly direct the jury on questions of law and remind them of the important evidence from both the prosecution and the defence.

62.There was no obligation on the part of the judge to remind the jury of every single piece of evidence or to direct the jury on the facts in a way most favourable to the defence. There was certainly no part of a judge's duty to put forward a possible defence for a defendant who chose not to give or call any evidence.

63.In R v Hillier and Farrar 97 Cr App R 349, Watkins L.J. said at p 354:

"We must make this clear yet again, namely that it is no part of a judge's duty to build up a defence for someone who has not chosen to give the jury the benefit of his version of material circumstances and events. The judge's obligation is limited to reminding the jury, in summary form, of what the defendant is said to have stated as to those matters at some time or another pre-trial and what assistance, if any, the Crown's witnesses have provided."

64.Similar observation was made in R v Cheng Pak Chang [1977-1979] HKC 132 when Robert CJ said at p 142:

"We do not think that more can be required of a judge, in the course of his summing-up, than that he should remind the jury of the principal issues faced by them in reaching their verdict and draw their attention in a fairly balanced manner to the main features of the defendant's case. It must not be assumed that a jury is composed of idiots. They have heard the evidence, and have been told that they are the judges of fact. If they have been correctly directed as to the law, the judge is not obliged to remind them of every piece of evidence which is capable of an interpretation favourable to the defence. If such an obligation were conceded, judges would play safe by reading out large pieces of evidence and leave the weighing of it the jury, virtually unaided.

Every year, courts of appeal place heavier burdens on judges. Summing-ups are picked to pieces by courts and counsel like vultures gnawing at a carcass. There is a danger that the summing-up which is of most help to the jury, because the judges summaries and guides, is the most likely to be upset. But if the judge takes no chances and leads the jury again through all the evidence, a process unlikely to help the jury much in their difficult role, he is less likely to be upset on appeal.

We would like to make it clear that we do not favour a minute dissection of a summing-up in an effort to identify failures by the judge to deal with minor inconsistencies or to put constructions favourable to the accused on every item of testimony. It must not be forgotten that facts are for the jury, and remain so in spite of any view which the judge may have advanced as to the facts and whether or not he has referred to particular pieces of evidence in his summing-up."

65.The judge had reminded the jury of the evidence perceived to be favourable to A1. (e. g. She did not know the contents of the cargo she was collecting as someone had asked her to collect it. When the ecstasy tablets were shown to her, her reaction was very calm and even "light-hearted". When she was asked if she would co-operate to find the consignee, she nodded affirmatively.)

66.The judge said to the jury that they could disregard evidence emphasized by him. On the other hand, they must also take into consideration evidence they considered to be important even if the judge had not mentioned such evidence.

67.Despite the lengthy and careful submission of Mr. Lo, we were not convinced by his argument that the judge had not properly or adequately analyzed or collating the evidence to assist the jury in reaching a verdict. This ground of appeal also failed.

68.It was the prosecution case that Zulisman was one of the co-conspirators and if it was so established, A1's relationship with Zulisman became highly relevant.

69.It was not difficult to understand why the prosecution adduced as evidence the fact that A1 appeared to be living with Zulisman together at the Royal Ascot flat and that A1 had cashed 3 cheques on Zulisman's account in February, March and April 2000 for $2.4 million.

70.It was true that the evidence linking Zulisman to the conspiracy was not very strong. The only evidence being (i) A1, A2 and Zulisman had travelled from Jakarta to Hong Kong together on 6 September 2000, (ii) that Zulisman had travelled between Hong Kong and Jakarta in June and August 2000, and (iii) that Zuliaman left Hong Kong for Taiwan on 11 September 2000 in the evening after the arrest of A1 and A2 and had never returned.

71.Mr. Lo was right in suggesting that there was no direct evidence to show that the person who responded to the call at 9542 3254 and spoke to A1 and A2 was indeed Zulisman.

72.But A1 had not raised any objection to the admissibility of the evidence about Zulisman and the evidence pertaining to his relationship with A1. In fact such evidence was adduced as part of the admitted facts. Mr. Lo also conceded in the course of his submission that these facts were relevant to the charge.

73.It was open to the jury to look at all the evidence and to give the evidence such weight as they considered appropriate. That was precisely how the judge directed the jury.

74.The judge had pointed out to the jury that it was for them to decide who Zulisman really was and whether he was indeed a party to the conspiracy.

75.Unless the jury was satisfied to the required standard that Zulisman was indeed one of the co-conspirators, the jury would not have placed any reliance on the alleged relationship between A1 and Zulisman to convict A1.

76.The evidence against A1 was strong. She went to office of Kania to collect a consignment containing large quantity of ecstasy. The conversation she had with the called-party clearly supported the suggestion that she was aware of the existence of contraband in the consignment.

77.Although A1 claimed that someone had asked her to come to collect the consignment, she did not disclose the identity of the person who sent her even after she was cautioned and she never did. She in fact did not say anything at all after she was cautioned.

78.Despite the very strong evidence against A1, she chose not to give or call any evidence to explain, contradict or undermine the prosecution case against her.

79.The jury was perfectly justified in returning a unanimous verdict of guilt against A1. We did not find the guilty verdict in any way unsafe or unsatisfactory.

80.For the reason given above, leave to appeal against conviction was refused.

Grounds of Appeal Against Sentence

81.Both applicants submitted that the starting point of 20 years adopted by the judge was excessive. Mr. Lo suggested that ecstasy was less harmful and constituted less threat to the society than other more potent dangerous drugs such as heroin or "ice". Therefore for trafficking in large quantity of ecstasy, the upper limit of sentence should be less than trafficking in heroin or "ice".

82.Mr. Lo suggested that the sentence for trafficking in large quantity of ecstasy should be limited to about 15 years' imprisonment.

83.Mr. Lo further suggested that the judge was wrong in concluding that A1 played an integral part in the conspiracy.

84.In his written application, A2 emphasized that he had pleaded guilty to the charge and it was not a case of trafficking in heroin or "ice". A2 also referred us to the case of HKSAR v Tso Kin-chi HCCC No. 410 of 2000 (a case said to involve the largest seizure of ecstasy tablets in Hong Kong, namely 250,000 tablets (27 kg) with a street value of HK$32 to 72 million) in which the defendant was sentenced to 13 years and 4 months after pleading guilty to a trafficking charge.

85.A2 suggested that the sentence imposed on him was excessive when the judge adopted the same starting point of 20 years' imprisonment as in Tso Kin-chi. (supra)

86.The leading case on sentence for the offence of trafficking in ecstasy is of course HKSAR v Lee Tak Kwan [1998] 2 HKC 371 where this court concluded that the starting point for trafficking over 800 grammes of ecstasy should be 8 years and upwards.

87.Mortimer VP made the further observation at p 378 that:

"An arithmetic progression for trafficking in much higher quantities than 800 grammes should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances. Some increase of the levels will be justified, for example, where there is evidence of importation or manufacture or other aggravating circumstances for which the accused is responsible."

88.In HKSAR v Chui Chi Wai and Another [2000] 1 HKLRD 704, D1 pleaded guilty to count 1 of trafficking in about 2,100 grammes of ecstasy and D2 pleaded guilty to 2 counts of trafficking in a total of about 4,400 grammes of ecstasy. Effective starting points of 10 years and 13 years and 4 months were considered to be appropriate. The court commented that "this case does not involve importation or manufacture and there are no other aggravating features for which the applicants were responsible."

89.In The Queen v Lau Tak-ming [1990] 2 HKLR 370, this court had set the tariffs of sentence for trafficking between 400 to 600 grammes of heroin at 15 to 20 years' imprisonment. This court further commented at p 387:

"Amounts of over 600 grammes fall into the 'very large quantities' category. On a reconsideration of the line taken in Cheng Yeung [1989] 2 HKLR 258 and in the light of the information now available to us in our judgment, in appropriate cases which fall into that category, we consider that there can be an upward increase in the 'cut off sentence' there suggested bearing in mind that the maximum sentence provided for by the legislation is life."

90.In AG v Ching Kwok-hung [1991] 2 HKLR 125, this court too laid down tariffs to be imposed after trial for possession for unlawful trafficking or trafficking in "ice". For over 600 grammes, the starting point is 18 years' and upward.

91.The court had again said, "By upwards we mean, as was indicated in Lau Tak Ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice. In coming to this tariff we have in mind the maximum penalty is life imprisonment."

92.For obvious reasons, it is neither necessary nor desirable to lay down tariffs of sentence for every conceivable quantity of dangerous drug in trafficking or possession for trafficking cases.

93.The tariffs for heroin and "ice" stop at 20 years and 18 years respectively. It must not be assumed however that 20 years and 18 years are the ceilings. Obviously they are not even though strict mathematical progression may cause injustice.

94.Very often for large quantities of heroin or "ice" (in terms of kilogrammes), a starting point of 25 to 30 years' is not uncommon.

95.Ecstasy may well be less harmful. Its threat to the society cannot be under-estimated. Those who engage in the evil business of drug trafficking, be it of ecstasy are not less culpable if the quantity of ecstasy is very large.

96.We certainly do not agree with any suggestion that sentence for trafficking in very large quantity of ecstasy should be limited to about 15 years' imprisonment.

97.The charge is one of conspiracy to traffic in dangerous drug. The quantity of ecstasy is 9.75 kilogrammes (over 60,000 tablets) with a street value of $.4.8 million to $21 million. It was an importation from Indonesia by air under a carefully planned and sophisticated scheme.

98.The offence is certainly one of the worst of its kind.

99.Comparing with Tso Kin-chi (supra) which involved a much larger quantity of ecstasy, the identical starting point of 20 years appeared excessive. But Tso Kin-chi was not a case of importation of ecstasy. The defendant was found to be in possession of the ecstasy and he claimed to be keeping them for his friend.

100.In any event, the sentence imposed on the defendant in Tso Kin-Chi had not been the subject of any appellate proceeding in this court and as such was not a case that could be relied on to support the suggestion that the sentences imposed on A1 and A2 were either wrong in principle or manifestly excessive.

101.Irrespective of the background of the applicants or the parts played by them in the conspiracy, we were not persuaded that the starting point of 20 years' adopted by the judge should be interfered with.

102.Rightly or wrongly, A1 was given a 6 months' discount for agreeing to significant amount of evidence. A2 was given a 1/3 discount for his guilty plea. Neither of them could have any legitimate complaint about the sentences they received.

103.Despite the fact that we had had forceful and helpful argument from both sides, we had come to the conclusion that none of the matters raised by Mr. Lo on behalf of A1 or by A2 himself caused us any concern.

104.The applications for leave to appeal against sentence are also dismissed.

Representation:

Ms Lousia Lai, SADPP of Department of Justice for the Respondent.

Mr P Y Lo instructed by Messrs Or Ng & Chan for the 1st Applicant.

2nd Applicant: In person, present.