The Queen v. Yeung Kam Lung and Another

IN THE COURT OF APPEAL

1986, No. 531
(Criminal)

BETWEEN

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Coram: Hon. Silke, J.A. Hon. Power and Hon. Penlington, J.J.

Date of Hearing: 4^th March 1987

Date of delivery of Judgment : 5^th March 1987

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JUDGMENT

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Power, J.:

1. There are two applicants before the Court, Yeung Kam Lung and Ng Pei Wah. Originally both applicants sought leave to appeal against conviction and sentence. The 1^st applicant, Yeung Kam Lung, has, however, abandoned his appeal against conviction. The 2^nd applicant, Ng Pei Wah, was found guilty after trial on a charge that he, together with the 1^st applicant, on the 3^rd July 1986 on the roof top of 51-53 Tai Po Road, did have in his possession, jointly with the other accused, a dangerous drug, namely 394.89 grammes of a mixture containing 50.5 grammes of salts of ester of morphine for the purposes of unlawful trafficking. (Count 3) He had pleaded not guilty to a second charge of joint possession of a much smaller amount of drugs, namely 4.61 grammes of a mixture which cited the place of possession as being the 2^nd floor of 51-53 Tai Po Road and the date being the same day, the 3^rd July 1986. (Count 2)

2. The facts surrounding the offences were that on the evening of the 3^rd July, at about 10 p.m. two police officers stopped the 1^st applicant at the junction of Fuk Wing Street and Yen Chau Street, Shumshuipo. On searching him, they found a sealed polythene bag which had been the subject of the first of the three counts. This bag was found in the pocket of the shorts of the 1^st applicant and he was then arrested for possession of drugs for the purpose of unlawful trafficking. (Count 1) He was cautioned and said that there was more white powder to be found at his home at 51-53 Tai Po Road and led the police officers to his home where the drugs, the subject of the 2^nd count, were found sealed in a polythene packet under the pillow of a bunk bed. He then, after being futher cautioned, told the police officers that more drugs could be found on the roof-top and he led them to the roof and pointed cut a white plastic bag amongst some rubbish which was found to contain other bags, one of which had 26 sealed packets of suspected drugs, one of which had 33 similar packets, one of which contained 50 similar packets and which also contained a box containing an electric bag sealer, a set of seales and a note book. (Count 3) The 1^st applicant led the police party to Castle Peak Road where the 2^nd applicant was arrested. The 2^nd applicant was then taken back to the Cheung Sha Wan Police Station.

3. At the police station, the 2^nd applicant made a statement which must be set out in full as it was canvassed at length before this court. It was submitted that the 2^nd applicant was in possession of the drugs found on the roof-top. The sergeant who took the statement recited the facts to the 2^nd applicant as follows:

“A Chinese male was arrested at Yen Chow Street near the junction of Fuk Wing Street by me and other term members at 10:00p.m. on the 3^rd of July, i.e. today, as a packet of suspected dangerous drugs wrapped up with transparent plastic bag and weighed about 10 grammes was found on him. Later, I, together with the terms members led by him to the room on the balcony at the 2^nd floor of 51-53 Tai Po Road, where packet of dangerous drugs wrapped up in transparent plastic bag and weighing 5 grammes was found. Afterwards, I, together with other team members were again led by him to the roof-top where 26 packets of suspected dangerous drugs wrapped up in plastic bags, 33 packets of suspected dangerous drugs wrapped up in transparent plastic bags and electric plastic bag sealing machine and a steelyard were found. Later, according to information supplied by that Chinese male, at 2:35 a.m. on the 4^th of July, I together with other team members went to Room 415, 3^rd floor, Kung Sheung Guest House, 260-266 Castle Peak Road where you were found. Therefore, I said to you that I arrest you for possession of dangerous drugs for the purposes of unlawful trafficking.”

The 2^nd applicant was then cautioned and asked if he had anything to say and he said:

“Ah Sir, the white powder belongs to me and another man called Yeung Kam Lung, there is nothing to do with others.”

The 2^nd applicant was charged with and pleaded not guilty to the second and third counts.

4. The learned trial judge dealt with this statement in the following way:

“The 2^nd charge of course relates to a polythene packet of dangerous drugs found under a pillow on the lower bunk bed of a room occupied by the 1^st applicant and by the 2^nd applicant at the rear portion, 2/F. 51-53 Tai Po Road, Hong Kong. Those drugs were found in the presence of the D1, 1^st applicant but not in the presence of the D2, 2^nd applicant. There is however evidence from PW4 that the 2^nd applicant lived in that room every other night. Of itself that may not be enough to connect him with the dangerous drugs. In addition to that evidence, however, there is a cautioned statement admitted into evidence without objection in which D2, the 2^nd applicant said ‘Ah Sir, the white powder belongs to me and another man called Yeung Kam-lung. There is nothing to do with other’. It is not clear whether that statement relates to simply the drugs found in the room or simply the drugs found on the rooftop or both. Both were mentioned in the preamble to the statement, the voluntariness of which was not challenged. Although the evidence of the officer who took the statement was by no means perfect, I am satisfied that the statement made by the defendant, which takes the form of a verbal admission made at the end of a post-record, was freely and voluntarily made.”

The judge then went on to consider the 2^nd charge and was satisfied that the drugs probably belong to one or other of the two accused. He said finally:

“I have reached to conclusion that considerable doubts do remain as to whether the 2nd defendant (2nd applicant before us) can be said – with any certainty to be in possession of the drugs found under the pillow so I shall dismiss that charge against him.

As to the 3rd charge against him as Mr Matthews has said, there are rally 3 pieces of evidence against him. There is the cautioned statement, the fingerprint found on the sealing machine and finally there is the other evidence as to his occupation of the premises, coupled with the allegations made against him by the 1st defendant. I do not place any weight on those allegation – they may be simply an attempt to shift the blame ………… The fingerprint of the 2nd defendant however is very strong evidence connecting him with the sealing of the drugs in packets. We do not know when the fingerprint was made but it is conceded that it is there and to my mind in the circumstances of the case where the machine is found in the same bag as the dangerous drugs it is inconceivable that the machine would have been used for any purpose other than the sealing of the drugs in packets.

As to the cautioned statement this has been admitted unchallenged into the evidence. The question is what weight should be attached to it? Well it is clear the 2nd defendant was admitting to joint possession of white powder with D2. It is also clear that the circumstances of the discovery of the drugs on the rooftop had been related to D2 prior to his admission. That seems to me to be enough. I see no reason why I should treat the admission as other than truthful. It was made voluntarily by D2 in the Cheung Sha Wan Police Station. So I treat it as corroborative of the other evidence against the 2nd defendant.

I have considered the whole of the evidence against D2 on this charge, and I have reached the conclusion that the combined effect of the evidence as to fingerprint, admission in the cautioned statement and the evidence as to D2’s occupation of the premises below the rooftop is sufficient to prove beyond reasonable doubt that he was also in possession of the drugs found on the rooftop.”

5. Firstly, Mr. Matthews argued, and I hope I have understood him correctly, that the statement should not have been relied upon because of the unsatisfactory way in which the sergeant who took it gave his evidence. The record which he handed up to us revealed that on two occasions, the sergeant when being questioned by him under cross-examination, had completely failed to reply to the question put him. Given, however, that the statement was not challenged, and given the findings of the trial judge that he was satisfied that the statement was freely and voluntarily given, we are unable to find any substance in this submission.

6. The second submission of Mr. Matthews had its starting point in the words of the trial judge contained in the passage which I have just read out: “It is not clear whether the statement relates to simply the drugs found on the rooftop or both.”

7. We are by no means convinced that this finding, which is very much in favour of the applicant, takes a correct view of the evidence. The applicant had been asked about two amounts of drugs. Mr. Matthews did point out that there was a third amount referred to by the Sergeant but it seems to us clear that it must have been apparent to the applicant that he was not being asked about this amount but about the two amounts of drugs which were found on the premises. He replied “The drugs are mine”. He did not seek to challenge that he made that statement nor was there any evidence to suggest that it was not freely and voluntarily given. There was, indeed, nothing to suggest that the words did not mean what they said on their face, i.e. that all the drugs referred to were his. However, given that, on the facts overall, the trial judge took the view that the statement was an ambiguous one we too will proceed upon that basis. What this court must ask itself is whether the judge was wrong, having taken that view, to be satisfied that the statement was an admission as to the drugs found on the rooftop?

8. The trial judge, as we have already recited, relied upon three facts: that the fingerprint was found on the sealing machine – that admissions were made in the cautioned statement and that the 2^nd applicant was in occupation of the premises immediately beneath the rooftop. The last fact would not, of course, be enough, taken alone, to prove possession of the drugs, but it was, we are satisfied, a factor which the trial judge was entitled to take into account when he came to consider the evidence overall.

9. Mr. Matthew submitted that there is no evidence to show when the fingerprint got onto the sealing machine and that without such evidence, no weight should be given to it when considering whether the and applicant was in possession of the dangerous drugs. This is not a matter which allows of any real elaboration. We are satisfied that, given the admission and given that the fingerprint was found on the sealing machine which wrapped up with the dangerous drugs, it was quite proper for the trial judge to have come to the conclusion he did, i.e. that there was evidence to establish that the accused was in possession of the drugs found on the rooftop.

10. Leave to appeal against conviction is therefore refused. We turn now to the matter of sentence.

11. The 1^st applicant having abandoned his appeal against conviction pursued his appeal against sentence on all three charges. He was sentenced to 18 months on each of the first two charges, concurrent, and to five years concurrent with both those sentences, on the third charge. It is now argued by Mr. Wong who appears for him that given his co-operation with the police, and it is quite plain that he did co-operate with the police from the moment of his apprehension, he should have been given some greater credit than was given to him by the trial judge. The trial judge, it appears, thought that 5½ years, the sentence which he passed on the 2^nd applicant, was an appropriate sentence for possession of the amount of dangerous drugs found on the roof and that he gave the 1^st applicant credit of only 6 months for his co-operation with police. We take into account that he has today abandoned his appeal against conviction and has not pursued in this Court arguments to suggest that that conviction should not be sustained. We take into account also that he did co-operate in a very real way with the police by leading them firstly to the dangerous drugs in his bedroom, which, it is true, might have been discovered anyway, and then to the dangerous drugs on the rooftop which may well have never been found. It is true that he pleaded not guilty to the 3^rd charge and we have been careful not to deal with him upon the basis that he is entitled to the discount due upon a plea of guilty. He is certainly not entitled t such a discount but he did co-operate in a very substantial way with the police and we are satisfied that insufficient credit was given to him for this. We consider that the sentence should be reduced from five years to one of four year. The sentences on the other two charges, the 1^st and 2^nd charge, each of 18 months were perfectly proper ones, and we will not interfere with them. The application will be allowed and the sentence varied accordingly.

12. As to the 2^nd applicant, we can see no reason to interfere with the sentence of 5½ years. It is well within the guidelines which this court applies and leave to appeal in his case is refused.

Mr. J.M. Gerber (Crown Prosecutor) for the Respondent

Mr. Frank Wong (D.L.A.) for the 1^st Applicant

Mr. J. Matthews (Alick Au & Massie) for the 2^nd Applicant