The Queen v. Wong Muk Ping

IN THE COURT OF APPEAL

1984 No. 92
(Criminal)

BETWEEN

Coram: Roberts, CJ, Yang, V-P, Kempster, J.A.

Date of Hearing: 2nd April 1987

Date of Judgment: 2nd April 1987

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JUDGMENT

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Kempster, J.A.

1. This is the judgment of the Court on an application by Wong Muk-ing for leave to appeal against the sentence of 12 years imprisonment passed on him by Deputy Judge O’Dea in the High Court on 14th February 1984, following his conviction on the verdict of a jury for conspiracy to traffic in dangerous drugs.

2. The time which has elapsed before the hearing of this application is explained by the fact that Wong successfully applied to the Court of Appeal for leave to appeal against his conviction. Application and appeal were allowed on 18th October 1984. Unhappily for Wong, the Attorney General obtained, special leave to appeal against those decisions and, on 18th March of this year, following a hearing before and. the advice of the Judicial Committee, it was ordered by Her Majesty in Council that the conviction should be restored. As remarked by Lord Bridge who delivered the relevant opinion:

The separate appeal against sentence - which has never been determined, will now require to be considered and decided by the Court of Appeal in Hong Kong.

As a preliminary step we allow the application for leave and now proceed .to consider and determine Wong's substantive appeal against sentence.

3. In the early hours of 22nd February 1971 the driver of a van was stopped by the police and arrested after a high-speed chase through the Lion Rock tunnel. He was found to be carrying 1.3 metric tonnes of opium which, it transpired, had been landed at Shatin from a Thai fishing vessel. A following car, being driven by Wong, was also stopped and he and two male passengers were also arrested. However, they were all released a few days later for want of evidence connecting them with the opium that had been found in the van.

4. On 25th August 1977 - over 6 years later - Wong was rearrested following which, by way of answers to questions put to him under caution, he made a full, circumstantial and complete confession to complicity in a conspiracy, hatched a little while before his arrest in the Lion Rock tunnel, to import this large quantity of opium into Hong Kong. His assigned and agreed role was to supervise the loading of the opium from the fishing vessel on to the van, then to observe the passage of the van from Shatin to the exit of the tunnel and later to ensure that the opium had safely been deposited in a warehouse in Tokwawan. He was finally to report to another member of the conspiracy by phone.

5. Having - rather surprisingly - been granted bail Wong absconded. He was next seen on 28th September 1983 when, with his father, he surrendered at the Headquarters of the Narcotics Bureau of the Royal Hong Kong Police Force. Another delay is thus explained.

6. Wong is 37 years of age or thereabouts, married, with a daughter aged some 10 years and a younger son. He first came to Hong Kong in 1953. The crime with which we are concerned was committed when he was about 21 years of age and to some extent at least under the malign influence of his father. He has no previous or subsequent conviction and was subject to imprisonment between the date of his surrender (28th September 1983) and that of the date when his appeal against conviction was allowed (18th October 1984) - some 12 months. Further, the 1983 pattern was repeated insofar as Wong once more surrendered himself voluntarily into custody on 25th March last having learned of the outcome of the Attorney General's appeal to the Privy Council. Subject to any remission, which is no concern of ours, he presently has some 11 years of his sentence to serve. We are told and accept from Mr. Sedgwick, who appears on his behalf, that .he has managed to obtain. a responsible job. This indeed suggests a. change, of outlook and approach to life and increasing maturity.

7. The guidelines provided by this Court in R v Lan Yin-nam[1] deal with no greater quantity of opium than Over 3,000 grammes for which a period of imprisonment of 3 years and upwards was said to be appropriate. Applying this formula mathematically to over 1 million grammes we reach a sentence which defies imagination. However, the trial judge did not purport to do anything of the sort and, in our view, the sentence of 12 years which he did impose was in no way to be faulted. having regard to the. gravity of the crime. It is true that the driver of the van had earlier been sentenced to 8 years imprisonment, but his role was inferior to that of Wong as we have just explained. Wong had accepted a degree of responsibility in lending himself to a breach of the law of this territory on a massive scale and must have anticipated a substantial sentence of imprisonment if caught. So much for the position as in February 1984.

8. The instant appeal has the unusual feature that Wong's expectation of unmerited liberty to which the decision in October 1984 gave rise was dashed after some two and a half years. Inevitably subject to consistent doubts and anxieties he has enjoyed this time in freedom. On the other hand, he would but for that decision by now have served that much more of his sentence. To some extent he may be regarded as having been instrumental in the clarification of the criminal law, though it is to be doubted whether he thus realised any long-held ambition.

9. In our view we can approach our task by analogy with the practice of this Court in relation to applications by the Attorney General for review of sentence. That approach, taking into account the matters which we have outlined, warrants a subtraction of 3 years from the sentence properly passed after trial. We thus substitute for the sentence of 12 years imprisonment one of 9 years. The appeal against sentence is allowed accordingly.

A.W. Sedgwick, Q.C. & G. Alderdice (K.M. Lai & Li) for D1/Applicant

A.S. Hodge & P.J. Dykes for Crown

[1] Cr. App. No. 520 of 1985 (Unreported)