Chan Chung-chuen and Others v. The Queen
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CACC000060/1977
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 16th May, 1977. ----------------- JUDGMENT ----------------- 1. The first three appellants were charged with conspiracy to traffic in a dangerous drug, contrary to common law, and with a second count of being in unlawful possession of a dangerous drug, contrary to the Dangerous Drugs Ordinance (Cap. 134). In addition, the first and fourth appellants were charged with a further count of unlawful possession of a dangerous drug under the same Ordinance. 2. The first, second and third appellants were both sentenced to twelve years' imprisonment for each offence, the sentences being ordered to run concurrently. The first appellant was also sentenced to imprisonment for nine years on the second count of unlawful possession, this sentence was also expressed to be a concurrent sentence. The fourth appellant was sentenced to four years' imprisonment. 3. The appellants appeal against their conviction and sentences. 4. The amount of drugs which is the subject matter of the first count of unlawful possession is just under 7 kilogrammes of a salt of morphine. The second count of unlawful possession is concerned with rather over half a kilogramme of the same drug. 5. The police were in possession of information as to the whereabouts of a large amount of salts of morphine and it was decided that a trap should be set to catch the persons who were in control of the drug. 6. Accordingly, on the 18th August last year at about 11 a.m. one Inspector Wong, with a party of detectives, went to a restaurant called the Pearl City Restaurant in Paterson Street, Causeway Bay. 7. The detectives kept watch outside. The Inspector entered the restaurant and was introduced to the first and third appellants by one Mr. Lam, who was known to the Inspector and who was obviously a police informer. The first and third appellants said they had some morphine for sale. Inspector Wong posed as a drug trafficker. There was a discussion, principally between the Inspector and the third appellant and an agreement was reached that the Inspector should purchase twenty pounds of morphine from the third appellant at $9,100 per pound. It was also agreed that the Inspector would not pay for the morphine until it had been inspected by some one who would be chosen by him. 8. The Inspector told the others that he would go and fetch the person who was to inspect the morphine and that he would return with him and the money. 9. The Inspector left the restaurant and spoke to one of the detectives who was outside. He returned to the restaurant with that detective, a Sergeant Kwan. Sergeant Kwan posed as the man who was to inspect the morphine. He brought with him 18 packages which were made up to look like bundles of $500 bank notes, $10,000 worth being in each bundle. Shortly after, the first appellant and Sergeant Kwan left the restaurant to go to inspect the morphine. They took a taxi to Chai Wan. They were shadowed by two detectives in a private car. Upon reaching Chai Wan the first appellant dismissed the taxi and boarded a second taxi. This second taxi was being driven by the second appellant. There was evidence from one of the detectives who was watching outside the Pearl City Restaurant that earlier that morning the first appellant had come out of the restaurant and spoken to the second appellant, whose taxi at that time was parked close to the restaurant, whereupon the second appellant drove off in his taxi. 10. The second appellant drove the first appellant and Sergeant Kwan to another address in Chai Wan where he stopped. He was observed by police witnesses to be standing in front of the taxi fiddling with the engine. The first appellant and the Sergeant opened the boot of the taxi and took a package out. This was inspected by the Sergeant inside the taxi. It was morphine and it appeared to him to be the right amount of morphine, namely twenty pounds in weight. 11. The second appellant did not get into the taxi while this brief inspection was being carried out, and the Sergeant testified that there was no conversation about morphine while he was in the taxi at any time. 12. It had previously been agreed at the restaurant that the Sergeant would telephone to a certain Mr. Hung when the inspection had been made. It was also agreed that Inspector Wong would telephone the same man who would inform him, the Inspector, when the inspection was completed after which the Inspector would pay over the money to the third appellant in the restaurant. 13. The Sergeant therefore told the first appellant that he must telephone. He made two attempts to get through from two separate telephones but was unsuccessful. 14. Meanwhile, at the restaurant, Inspector Wong pretended to telephone Mr. Hung and then told the third appellant that the inspection of the morphine had not been made. After some time, the Inspector left the restaurant taking with him the fake bundles of money. 15. Meanwhile, the taxi driven by the second appellant with the Sergeant and the first appellant as passengers, was proceeding back to the Pearl City Restaurant. The first appellant alighted fairly close to the restaurant and was arrested almost at once. The taxi proceeded on to the restaurant. The third appellant who had left the restaurant hailed the taxi which stopped. He was about to get into it when he and the second appellant were also arrested. The drugs, the subject matter of the first count of unlawful possession were recovered from the boot of the taxi. 16. The police then went to the premises where the first appellant was living with his mother, who is the fourth appellant. The premises were searched and a locked drawer was found. The fourth appellant produced the key and inside was found the morphine which is the subject matter of the second charge of unlawful possession. The fourth appellant was immediately arrested. 17. There was ample evidence that the first and third appellants agreed to make a sale of morphine to the Inspector. There was equally clear evidence of their being in possession of the morphine which was recovered from the boot of the car. We therefore dismissed the appeals of the first and third appellants against conviction. 18. The second appellant was never in the Pearl City Restaurant. He was the driver of the taxi from which the morphine was recovered. In his defence, he said that he was a professional taxi driver. He worked for a company and he knew the first appellant who was an employee of the same company. 19. The second appellant said that he was employed by the first defendant on the 18th, in his words, "to take something to somebody". He said that this agreement was of a casual nature and he was not told what he was to carry. In effect, his defence was that he had no knowledge that any dangerous drugs were in the taxi at all. He admitted that he went on the morning of the 18th with the first appellant to the first appellant's home where a parcel was taken from the house and placed in the boot of his taxi. 20. He was then told to drive to the Pearl City Restaurant and to wait outside. The first appellant entered the restaurant leaving the parcel in the boot of the taxi. After a time, the first appellant came out of the restaurant and told the second appellant to drive to a bus stop in Chai Wan. 21. At Chai Wan he saw the first appellant together with a stranger who, of course, was Sergeant Kwan, alight from another taxi. They boarded his taxi and he was given certain directions where to go and where to stop. At one stop the first appellant asked the second appellant for the key of the boot. The first appellant unlocked the boot and took out a parcel and placed it inside the taxi. But he, the second appellant, did not see what it was. He was not inside the taxi at the time: he was attending to the engine. Later, he was asked to go to two places where there was a telephone. On each occasion, when he stopped the taxi, the second appellant busied himself outside the taxi dusting it either with a piece of cloth or with a feather duster. 22. Later, he was ordered to drive back to the Pearl City Restaurant. Before reaching there, the first appellant alighted. As the second appellant was driving the Sergeant to the restaurant he was hailed by the third appellant. At that moment, the taxi was surrounded by police officers and he and the third appellant were arrested. 23. The prosecution suggested that the manner in which the second appellant was hired by the first appellant, and the circumstances of that hiring, point to his complicity in the conspiracy. In particular, it was pointed out that though he was seen to dust his taxi while it was parked outside the restaurant before he was ordered to go to Chai Wan, yet on each occasion when he was stopped by the first appellant and the Sergeant, he alighted from the taxi and busied himself with more cleaning. The suggestion is that this shows that he knew the parcel in the boot was at least something illegal and he was merely pretending to clean the taxi. He was deliberately avoiding being inside the taxi when the drugs were inside so that later he could plead, as he has pleaded, that he did not know or see what the parcel contained. 24. There was a conflict of evidence between the Crown and the defence on this point. Evidence was given by the Sergeant that the second defendant actually did handle the parcel - that he put it back in the boot after the inspection. 25. There are four principle items of evidence which tell against the second appellant: (1) When he was hired by the first appellant he asked him what it was he had to do. He was told, in effect, not to ask awkward questions. (2) He admitted that he thought it was 'mysterious' - that was the adjective used - when he was told by the first appellant to leave the Pearl City Restaurant and to pick him up later at Chai Wan. But he explained this by reminding the Court that he would probably have been given a parking ticket if he had remained outside the restaurant for much longer. And the Pearl City Restaurant is in Paterson Street, which is very crowded. (3) The second appellant was hired in order to make a delivery of something. Nothing was in fact delivered. This, we think, should have put him on his guard (4) As we have said above, there was evidence that the second appellant did handle the parcel when he placed it back in the boot of the taxi after the inspection by the Sergeant. 26. The trial judge gave impeccable directions as to the various points of law which called for consideration in this case. No complaint can be or was made of the summing-up on that score. However, the judge dealt with the facts in rather a summary manner. In particular, this applies to the defence of the second appellant. 27. There are three matters which call for comment. First, the evidence of Sergeant Kwan was that there was no conversation concerning the transaction then taking place while he was with the first and second appellants in the taxi. Again, when the second appellant was hired, the first appellant was not particularly anxious to hire him and said that "anyone will do". Finally, the second appellant, according to the evidence, was to receive one hundred dollars only. We think that if properly directed the jury might well have inferred from these three items of evidence that the second appellant was not a party to the conspiracy. 28. None of these three matters were disputed; but none of them was brought to the attention of the jury in the summing-up. 29. We think that should have been done. It was necessary to remind the jury of the story of the defence of the second appellant in all its details. We think, therefore, that the conviction of the second appellant is unsafe and unsatisfactory. 30. The appeal against conviction of the second appellant is allowed and the sentences set aside. 31. We now come to the fourth appellant. She is the mother of the first appellant. She was charged with the second count of unlawful possession. The only evidence against her is that she was in possession of the key of a locked drawer in which this morphine was found. This, of course, raises the presumptions under the Ordinance. 32. The first appellant gave evidence to the effect that he had put the morphine in the drawer on August 16th. He said he got the key of the drawer from his mother but he did not tell his mother what was in the parcel nor show it to her and that she knew nothing about it. 33. The fourth appellant said that on the morning of the 16th August the first appellant asked for the key of the drawer which was a drawer used by various members of the family to keep things such as licences safely. In fact, when the drawer was opened a large sum of money was found. This money, she said, was her savings. On August 16th, the fourth appellant told her son to fetch the key of the drawer from her purse as she was busy at the time. He fetched the key and later returned it to her purse. She had no knowledge of what was inside the parcel - in fact she had not seen it. The fourth appellant was rigorously cross-examined but maintained her story. 34. There was nothing more she would say or do in her defence and it is apparent from the wording of the summing-up that the trial judge took the view that she had rebutted the presumption. We are left with a feeling that her conviction is unsafe and we allow her appeal against conviction and set aside her sentence. 35. The first and third appellants also appealed against their sentences of twelve years' imprisonment on the first two counts. These are very heavy sentences. Though the offences were very serious these are not the most serious cases of their type. We think that justice will best be served if we reduce the sentences of twelve years to ten years in each case. 36. The result is, therefore, that the appeals of the second and fourth appellants against conviction are allowed and their sentences are set aside. The appeals of the first and third appellants against conviction are dismissed but their appeals against sentence are allowed to the extent that the term of twelve years' imprisonment on the first and second counts is reduced to ten years in each case; the sentences will be concurrent. The appeal of the first appellant against his sentence on the second count of unlawful possession is dismissed.
Representation: Rodway (Gunston & Chow) for all appellants. Edwards for crown. |