HKSAR v. Yuen Kim Wing

CACC 503/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 503 OF 2005

(ON APPEAL FROM DCCC NO. 644 OF 2005)

______________________

BETWEEN

______________________

Before : Hon Woo VP in Court

Date of Hearing : 19 April 2006

Date of Judgment : 19 April 2006

-----------------------

J U D G M E N T

-----------------------

Hon Woo VP:

1.The applicant faced two charges.  He pleaded guilty to the second charge for possession of 22.62 grammes of a mixture containing 12.64 grammes of heroin hydrochloride, but denied the first charge of trafficking in 13.97 grammes of a mixture containing 6.64 grammes of heroin hydrochloride.  The trial took place before Judge Yuen in the District Court.  The judge convicted him of the first charge after trial.  She sentenced him to a term of 4 years’ imprisonment on the first charge and 18 months’ imprisonment on the second charge, ordering 9 months thereof to be served concurrently with the first charge with the remaining 9 months to be served consecutively.  Thus the applicant received a total sentence of 4 years and 9 months’ imprisonment.

2.The applicant now applies for leave to appeal against both conviction and sentence. 

3.The facts of this case are relatively simple.  On 11 May 2005, two police constables, PW1 and PW2, observed the applicant coming out of the building at 54 Leighton Road in Causeway Bay.  They followed the applicant who proceeded to the McDonald’s restaurant on the 2^nd floor of the basement level of Times Square.  PW1 saw the applicant meeting up with a middle-aged woman who gave him a stack of banknotes in denominations of $1,000 and $500.  After counting the money, the applicant pocketed the money and handed over to the woman two small packets.  The woman put the two packets into a pocket of a windbreaker which she had taken out from the paper carrier bag she was carrying.  After the transaction, the woman left first and the applicant left shortly thereafter.  They were respectively arrested by different police officers in the vicinity of Times Square.  When the applicant was searched by PW1, two $1,000 notes and six $500 notes, making a total of $5,000, were found.  On the other hand, those who arrested the woman found two packets of dangerous drugs in her windbreaker containing the drugs as described in the first charge.

4.With the keys found on the applicant, the police officers took him back to his residence at room 6, 3^rd floor of 54 Leighton Road for a search.  Inside the room, four packets of drugs under the second charge were found, together with an electronic scale, a small scale and a quantity of small resealable plastic bags. 

5.Back at the Happy Valley Police Station, PW1 took a total of four cautioned statements from the applicant, two in the same night of the arrest on 11 May 2005 and two others on the following late afternoon after the applicant had been taken to hospital to receive methadone treatment. 

6.In the cautioned statements, the applicant admitted that he was arranging the sale of dangerous drugs to the woman, but he only received the $5,000 from the woman, whereas he did not provide the two packets of drugs to her, saying that it was for his boss to provide drugs to the woman after he had received the price.  He said that he was to pay $4,800 to his boss, keeping the balance of $200 for his service in the transaction.  He also admitted that the drugs found in his residence were his.

7.In the grounds of appeal against conviction raised by the applicant, he alleged that the cautioned statements were made by him because of mistreatment by police officers.  He also said that he had never been to McDonald at Times Square.  He stressed that there was no fingerprint evidence against him on the two packets of drugs found on the woman, nor were the woman’s fingerprints on the $5,000 banknotes found on him.  He also mentioned that the woman was not able to identify him at an identification parade held at the police station. 

8.The applicant was represented by counsel at the trial.  He gave evidence to challenge the admissibility of the cautioned statements but did not give evidence or call any witness on the general issue. 

9.In her Reasons for Verdict, the judge gave detailed reasons why she admitted the cautioned statements as having been voluntarily made by the applicant.  She found the prosecution witnesses to be truthful, honest and reliable.  She considered that the prosecution’s case had been proved beyond reasonable doubt that the applicant was the person who sold the two packets of dangerous drugs to the woman inside the McDonald’s restaurant, even without reference to the contents of the cautioned statements or the packaging instruments found inside the applicant’s residence. 

10.Unless it is shown that the trial judge had misdirected herself, the Court of Appeal is not entitled to retry the case on the credibility of witnesses.  In HKSAR v Lo Man-kam, CACC 212/2001 (16 May 2002, unreported), giving the judgment of this Court, Stuart-Moore VP stated:

“30. … We are not empowered to re-try a case with all the disadvantages under which an appellate court necessarily labours bearing in mind that we have neither seen nor heard the witnesses.  It is for a jury in the Court of First Instance or, as here, a judge in the District Court, to evaluate the evidence.  Obviously, where there has been a material misdirection by the judge in either level of jurisdiction or an omission to give any direction in circumstances where one should have been given, it may well be necessary for this court to exercise its powers of intervention.  It is otherwise generally not for the Court of Appeal to usurp the function of the judge or the jury when it comes to the resolution of issues of credibility.  (See: R v Turnbull [1976] 63 Cr App R 132 and HKSAR v Lee Hon-shun CACC 626/1999).”

11.It is not at all clear if the applicant wishes to appeal against his conviction entered upon his guilty plea to the second charge.  If so, he would have the burden of establishing (1) that he did not appreciate the nature of the charge nor did he intend to admit that he was guilty of it or (2) that upon the admitted facts he could not in law be convicted of the second charge.  See R v Forde [1923] 2 KB 400, at 403. 

12.What the applicant now says in his grounds of appeal is merely that his cautioned statements in which he admitted possession of the drugs found at his residence were obtained by PW1 under threat.  However, this does not relate to the circumstances under which he pleaded guilty to the second charge, especially bearing in mind the fact that he was represented by counsel at trial.

13.In the circumstances, I do not discern any arguable ground to support his intended appeal against conviction and this application must be dismissed.

14.Regarding sentence, the judge followed the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370, that for up to 10 grammes of heroin hydrochloride a sentence of two to five years’ imprisonment is appropriate, to impose a term of four years’ imprisonment on the first charge. 

15.Regarding the second charge of possession, the judge took into consideration HKSAR v Lau Chi Chiu, CACC 395/1998, HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405 and R v WONG Yiu Kwan, CACC 53/1995, and took a three-step approach as suggested in WAN Sheung Sum in her consideration of the appropriate sentence to be imposed on the second charge.  She adopted a starting point of 15 months’ imprisonment for the simple possession, but in the light of the substantial quantity involved, taking into account the latent risk of re-distribution of the drugs, she adjusted the starting point to 2 years and 3 months’ imprisonment.  She then gave the applicant a one-third discount for his guilty plea to result in 18 months’ imprisonment on the second charge.  She ordered 9 months of this sentence to run consecutively to the sentence on the first charge, taking into account the totality principle.

16.All in all, the judge had acted in accordance with the principles of sentencing and the sentences she imposed on the applicant were neither against principle nor manifestly excessive. 

17.It appears that the applicant, now aged 63 years, is asking the court for mercy because of his age.  It has been pointed out by this Court that for trafficking in drugs, old age is not a matter that will be taken into account as a mitigating factor in sentencing: see HKSAR v Cheng Wing Shui, CACC 169/2004, and the cases cited in paragraphs 8 and 9 of that judgment.

18.In the circumstances, the grounds of appeal against sentence are, in my view, not reasonably arguable.  The application for leave to appeal against sentence is therefore dismissed.

19.I advise the applicant that he is entitled to seek leave again from the Court of Appeal within 10 days.  However, if the Court of Appeal considers that there is no merit in his application either regarding conviction or sentence, the court may order a loss of time of a period pending his application being heard as not constituting the time that he has served his sentence, and in respect of his application against sentence, the court may increase the sentence.

Mr Ned Lai, GC of the Department of Justice, for the Respondent

The Applicant, in person