HKSAR v. Chow Kam Tai
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CACC000599/1999 CACC 599/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 599 OF 1999 (ON APPEAL FROM HCCC NO. 61 OF 1995)
Coram: Hon Stuart-Moore, VP, Wong and Woo JJA in Court Date of Hearing: 8.6.2000 Date of Judgment: 8.6.2000 ______________________ J U D G M E N T ______________________ Wong JA: (giving the judgment of the court) 1. The applicant was tried and convicted before Gall J. and a jury in the Court of First Instance of two counts of trafficking in a dangerous drug. He was sentenced to imprisonment for 13 years on the first count and 9 years on the second count. The sentence on the first count was to commence 1 year from the second count making a total sentence of imprisonment of 14 years. The applicant now seeks leave to appeal against both conviction and sentence. 2. The particulars of offences of the two counts are set out in the indictment. These are: First Count STATEMENT OF OFFENCE PARTICULARS OF OFFENCE
Second Count STATEMENT OF OFFENCE PARTICULARS OF OFFENCE
3. The prosecution case was that following the arrest of two youths, Lai Chun Pong and Yip Man Chun for possession of dangerous drugs, the police went to the premises in question on 8 December 1994 and conducted a search. In the bedroom which the applicant admitted that he occupied with his girlfriend, Miss Leung, Police Constable 2030 found two black plastic bags in the stool alongside the bed. The two black plastic bags were found to contain three blocks of heroin which were the subject of the first count. In a record of interview, which was admitted after a voir dire, the applicant admitted that the drugs were his and that he had bought them in conjunction with Wong Yu Kei and that they had them for sale and they were broken up and given to Lai and Yip to be taken away for sale and the money would be brought back to the applicant and Wong. Wong, Lai and Yip were all accomplices jointly charged with the applicant in the two counts. But the charges against Lai and Yip were subsequently not proceeded with and they were granted immunity to become prosecution witnesses. 4. The police search continued and inside the hanging wardrobe in Wong's room, they found a bag which contained the dangerous drugs mentioned in the second count. Again, the applicant admitted in his statement the ownership of the drugs in the bag although denying the ownership of the paraphernalia which were also found in the bag. 5. The applicant gave evidence. He was not at the flat at the time of the police raid. This is not in dispute. It was also not disputed that he went to the police to surrender himself subsequently. His evidence was that he had nothing to do with the drugs. As to the confessions, they were forced out of him and not a single word was true. 6. It is plain from their guilty verdicts, the jury who had seen him in the witness box and observed his demeanour disbelieved him. 7. The applicant complained that the summing-up of the trial judge was wrong, and the jury was misled. The sentence passed on him is too heavy. 8. Before us, he tried to elaborate these complaints. He made accusations against the police which are not substantiated by the evidence. He accused the judge of not telling the jury that both Lai and Yip were giving evidence under immunity from prosecution. This is utterly untrue as it can be seen from page 12 of the summing-up, the judge was at pains to explain to the jury not only that these two youths were giving evidence under immunity but also the danger of acting on such evidence. It is not necessary for us to deal in detail with other matters in his oral submission before us which we find to be completely of no substance and the bits and pieces he said to be from the summing up were either misunderstood or out of context. We are satisfied that there is no merit in any of those complaints. The evidence against him was overwhelming. There is not only the evidence of his admissions, the police officers but also the evidence from the two accomplices, Lai and Yip. 9. We are satisfied that the judge gave a fair, adequate and balanced direction to the jury both on the law and on the evidence. The convictions are neither unsafe nor unsatisfactory and do not cause us any anxiety. 10. As to the sentence, the applicant submitted that as both offences were committed at the same time and in the same place, the sentences should have been concurrent. He asked us to order the sentence for the second count to be served concurrently with that for the first count instead of consecutively. He also mentioned that even Wong who was involved in the same charges received a sentence of only 8 years. It should be pointed that Wong pleaded guilty and was entitled to a discount for the plea. 11. In our view, the sentence of 14 years is entirely within the range of sentences to be passed on a case involving this quantity of dangerous drugs. The combined total of the drugs in the two counts amounted to 284.92 grammes of heroin and fall within the bracket of sentence 14 years provided for under the guideline in AG v Lau Tak-ming [1990]HK LR 370. The sentence is neither manifestly excessive nor wrong in principle. 12. Accordingly, we refuse leave to appeal against both conviction and sentence.
Representation: Mr Alex LEE, S.G.C. for DPP/HKSAR Applicant in person |