Yeung Kai Sin and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.641 OF 1972

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JUDGMENT

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Huggins, J.:

1.  This is an application for leave to appeal against sentence. The Appellants were jointly indicted with four others. On the first count they were charged with manufacturing a dangerous drug unlawfully and on the second count with possession of dangerous drugs for the purpose of unlawful trafficking. The other two counts in the indictment did not affect these Appellants. The first Appellant pleaded Guilty to both charges. The second Appellant pleaded Guilty to the second charge and no evidence was offered on the first charge. They were both sentenced to ten years’ imprisonment on the possession for the purpose of unlawful trafficking charge and the first Appellant to 15 years’ imprisonment on the manufacturing charge.

2.  It is sufficient for the purpose of this appeal to state the facts very briefly. The second Appellant was arrested by the police in the street and had on him the keys to certain premises. The police took him to the premises and at those premises the first Appellant was found. The premises, in fact, consisted of two flats, Nos.35 and 37 in Fei Fung Street. These premises, no doubt, were originally separate flats but in each of them a window had been removed and it was possible to gain access from one to the other through the holes left where the windows had been. There was a narrow yard between the two, which had been covered with a roof. Inside No.35 were found dangerous drugs valued at $1,800,000 and a large quantity of equipment for the manufacture of dangerous drugs. The first Appellant in a statement to the police said that he was responsible for the admission of the manufacturing equipment to the premises and that the drugs were his. Counsel urges upon us that by that he meant not that he was the absolute owner of the drugs but merely that he was in possession, for his case was that he was a caretaker.

3.  It has been submitted that the learned judge was in error, in passing sentence, in referring to the seriousness of this offence by reference to the crime of murder and complaining that many people appeared to consider murder the more serious offence. This was perhaps an extreme way of expressing his opinion of the seriousness of the offence, but it is quite clear that, the sentence for murder in this Colony being death, he did not in fact pass a heavier sentence for the present offence, and we do not think that any great importance attaches to the manner in which he expressed his opinion.

4.  It is also submitted that the size of the plant is really irrelevant in the present case because of the nature of the first Appellant’s connection with it. It is common ground that this is the biggest plant that has been uncovered by the Authorities in Hong Kong. We do not think that this is entirely irrelevant. It was a very big plant and the Appellants must have known that it was a very big plant, yet the first Appellant was prepared to associate himself with it and, as I have said, to take part in receiving the equipment into the premises. The amount of drugs was very large.

5.  It is urged upon us that the usual sentence for possession for the purpose of unlawful trafficking is eight years’ imprisonment and that the sentence on the second count was, therefore, above the normal.

6.  No question has been raised as to the disparity of sentences between these Appellants and any others and, therefore, I have not found it necessary to refer to the part played by the other Accused. It has, however, been suggested on behalf of the second Appellant that this was a “technical offence”, a phrase used by counsel who appeared in the lower court on his behalf. We are quite unable to accept that this is in any sense a “technical offence’. The only technical point which can be said to arise is that the method of proof which would have been adopted had the case gone to trial would have been by use of the presumptions in the Dangerous Drugs Ordinance. There is, therefore, something technical in one sense in the manner in which the offences would be proved, but that does not make the offences themselves technical in any way. It was open to the Appellants, if they saw fit, to plead Not Guilty and to require the case to be proved against them. They chose to plead Guilty and thereby admitted all the elements of the charge.

7.  We have considered this case very carefully because there is no doubt that the sentences are heavy sentences. As far as we are aware no heavier sentence than fifteen years has ever been passed in Hong Kong for this type of offence. Nevertheless, we have come to the conclusion that there are no grounds here upon which we ought to interfere. It must be understood that those who take any part in the manufacture of dangerous drugs and those who possess dangerous drugs for the purpose of trafficking are assisting and forwarding this nefarious traffic in death dealing drugs. If persons like the Appellants did not play their part then the trafficking in dangerous drugs would, slowly perhaps but surely, grind to a halt and, therefore, those who run the risk of taking part must expect to receive heavy penalties if they are caught.

8.  As I may, we see no ground upon which we can interfere with the sentences passed in the present case and the applications for leave to appeal are dismissed.

9.  I should add that we think it was very proper that such heavy sentences as these should be questioned in this court and we make no special order relating to the period pending appeal.

4th April 1973.