Lee Wing-chun v. The Queen

CACC000925/1982

BETWEEN

Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A.

Date: 29 December 1982

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JUDGMENT

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McMullin, V.-P.

1. The Appellant was convicted on its own plea to a charge under s.4A of the Dangerous Drugs Ordinance, the particulars being that on the 19th day of March, 1982, he had offerred to traffic in a substance held out by him to be a dangerous drug but which was in fact starch. He received a sentence of 4 years' imprisonment and leave was granted by the Single Judge to appeal against that sentence on the 5th of November, 1982.

2. The agreed facts were as follows. The appellant had borrowed $5,000 from a person called Chan in May 1981. He was unable to repay the debt. Chan asked him if he knew anyone who dealt in dangerous drugs. The appellant mentioned a clansman by name Hui Yau. A sample was procured and approved by Chan who then asked the appellant to set up a deal with Hui. The appellant was to act as broker between Chan and Hui.

3. The police became aware of this scheme and Senior Inspector Yiu Shiu-wing of the Narcotics Bureau was instructed to pose as a buyer of dangerous drugs. In this guise he was introduced to Chan under the name Fung. Between the 25th February 1982 and 19th March 1982 several meetings took place between the appellant Chan and Senior Inspector Yiu posing as Fung. On these occasions there were discussions concerning price and place of delivery, etc. Ultimately it was agreed that ten pounds of heroin would be delivered to the under-cover police officer at a price of $38,000 per pound.

4. A meeting was arranged for the exchange of the drugs for the money. On 19th March 1981 Fung (sub Senior Inspector Yiu), Chan and the appellant met in the coffee shop of the Sheraton Hotel, Kowloon. The police officer had brought the required sum of money which he gave to Chan. The latter checked the notes by means of an ultra-violet lamp which he had brought with him for the purpose. Meanwhile, other police officers who were taking part in the operation, had arrested a car together with its driver at a point which had previously been arranged as the place for the handing over of the dangerous drugs. In the car they found a plastic bag inside which there were eight packets of a white substance, the total weighing about 10 pounds. Upon later examination, the white powder turned out to be starch. The appellant was arrested as he was about to leave the Sheraton Hotel upon being informed by sub Inspector Yin, still posing as Fung, that a phone call received by Yiu in the appellant's presence had informed them that the plan had gone wrong.

5. On 29th December we heard Counsel on behalf of the appellant. At the conclusion of the hearing we allowed the appeal and set aside the sentence of 4 years, substituting therefor a sentence of 2 years. We now give our reasons for doing so.

6. Section 4A was introduced in 1980, coming into force on 11th July in that year. In 1968, the existing Dangerous Drugs Ordinance was repealed and replaced by Ordinance No. 41 of that year. The previous provisions were recast, amplified and altered in various ways and subject to subsequent minor amendments, the law at present remains in the form given to it in 1968.

7. Section 10 of the previous Ordinance contained comprehensive provisions which created a number of offences including the offence of pretending to deal in dangerous drugs. The new Ordinance contained no such provision and it would seem therefore that for the 12 years between 1968 and 1980, it was not an offence under the Dangerous Drugs law to traffic in a substance held out to be a dangerous drug which was in fact not a dangerous drug. The present Section provides a maximum of 7 years' imprisonment and a fine up to $500,000 upon conviction on indictment and the maximum of one year imprisonment and a fine up to $100,000 on summary conviction.

8. Counsel were unable to show us any previous decisions, either at trial or appellate level, dealing with offences under this section. There does not appear to be any help available from other Common Law jurisdictions.

9. In the present case the trial Judge, when imposing the sentence of 4 years, took the view that the appellant whose purported intention was to earn some money illicitly in order to pay off a debt of $5,000, had done so by means which promised to enrich him the extent of $380,000. He accepted that the appellant was merely acting as a go-between, he said: "You are, therefore, guilty of attempting to perpetrate a gross fraud. However, this is a drug related offence because it comes within the provisions of the Dangerous Drugs Ordinance, and the maximum sentence that is provided by the legislation is one of 7 years' imprisonment and a fine of $5,000."  He noted that the appellant's family situation, his plea of guilty and his previous good record were all factors which weighed heavily in his favour. He concluded by saying: "This does not strike me as the action of a desperate man who is anxious to repay a debt, but rather the action of a greedy man who is attempting to make as much of a profit as he possibly can from an enormous fraud."

10. In his own Grounds of Appeal, the appellant maintains that he was expecting to be paid $20,000 only as go-between. Mr. Sujanani who appeared for the appellant in the court below told us that this was his understanding of the appellant's position at the time the sentence was passed but that, in the course of interchanges between the Bench and the Bar, he had unfortunately failed to bring this to the Judge's attention. The Crown has not demurred to this.

11. The amending legislation of 1980 makes it clear that the legislature was drawing a distinction between the case of a man who believes that he is actually selling dangerous drugs, whereas the substance in fact is of a different character, and the case of a man who knows (as did the accused in the present case) that what he is purporting to sell as dangerous drugs is nothing of the kind. Thus, the 1980 Ordinance also amended Sub-section 1 of Section 4 by making it an offence for anybody to traffic in a substance which he believed to be a dangerous drug. Penalties available for that offence are the very heavy penalties provided for trafficking in the actual drug. It was, however, common ground that the appellant was a go-between. In those circumstances it was very unlikely that he would have retained all of the money and the strong probability is that he would have been remunerated - whether to the extent of $20,000 or some other sum - for his services by the real purchaser. With this in mind, and having regard to the other mitigating factors accepted by the trial Judge, we took the view that the sentence of 4 years was wrong in principle and accordingly reduced it to two.

Representation:

Mr. R.K. Sujanani (D.L.A.) for appellant.

Mr. B. Ryan for Respondent/Crown.