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THE QUEEN v. NG SHUN YING AND ANOTEHR

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1584-EN-1990-06-14

THE QUEEN v. NG SHUN YING AND ANOTEHR

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CACC000188A/1989

IN THE COURT OF APPEAL

1989, No. 188
(Criminal)

BETWEEN

	THE QUEEN	Respondent
	AND
	NG SHUN YING	1st Applicant
	WONG PAK	2nd Applicant

------------------------

Coram: Hon Silke, V-P, Kempster and Macdougall, JJA

Date of Hearing: 1 June 1990

Date of delivery of Judgment: 14 June 1990

-----------------

JUDGMENT

-----------------

Kempster, JA :

1. On 25 May last, having granted both applicants leave to appeal against convictions for trafficking in dangerous drugs, we dismissed the substantive appeals. Now we have heard their applications for leave to appeal against the respective sentences of nine years imprisonment passed upon them. Reference should be made to our earlier judgment for the relevant facts. What may be described as "Further Perfected Grounds" were filed on 22 May.

2. In considering the appropriate sentences O'Connor J adopted the hitherto acceptable approach that a conviction for "trafficking" was more serious than a conviction for "possession for the purpose of trafficking". In our judgment in R v Lau Tak Ming and Anor Cr App No 230 of 1989 (unreported), however, we suggested that no real distinction falls to be made between such offences; both of which allow for maximum sentences of life imprisonment.

3. The learned judge also went on to analyse the extent of the business which had been carried on during the three day period specified in the Particulars of Offence and to observe that "this retail business in drugs ... was being openly carried on, almost like a newspaper man in the street ... ". He also commented unfavourably on the presence in the applicants' flat, where the business was being conducted, of their children. In conclusion he referred to R v Chow Kwok Ping Cr App No 528 of 1986, where the applicant had been convicted of trafficking in 43.18 grammes of a mixture containing 4.37 grammes of salts of esters of morphine and sentenced to six years imprisonment; described by this court as "possibly on the high side".

4. As was stated in the judgment in R v Lau Tak Ming the proper sentencing process involves reference to the practice and guidelines, if any, prevailing at the time when an offence is committed. It also involves due regard to the parameters of the charge as O'Connor J properly directed himself albeit there was evidence, including the large quantity of used syringes found in the vicinity, upon which the female applicant at least might have been charged with trafficking over a longer period than three days.

5. During the period charged the amount of dangerous drugs sold in solution and in syringes amounted to some 50.7 grammes of a mixture containing 8.5 grammes of salts of esters of morphine. The monies received amounted to some $12,000. Insofar as R v Chan Chi wing (1979) HKLR 491 is applicable this mixture comes within the "small" category the sentence for which would range between three and five years imprisonment. Having regard to the flagrancy of the operation being conducted by the applicants, their bad records and the assistance given in injecting the addicts a sentencing judge might well have looked to the upper end of the bracket and, indeed, exceeded it by reason of the sentence passed in R v Chow Kwok Ping. Nonetheless I cannot think that it would have peen or was proper to pass a sentence of nine years imprisonment. Such a sentence was manifestly excessive. Further, I am unable totally to ignore either the deprivation which will be suffered by the applicants' four children in losing the care of both parents over a protracted period, whatever the quality of their parenthood, or the exceptional burden of remorse and anxiety which the applicants will themselves have to bear in consequence.

6. Accepting as I do the judge's conclusion that no distinction falls to be drawn between two applicants who were pursuing a common enterprise from premises in their joint occupation I am satisfied that the circumstances of this case call for sentences of six years imprisonment. Prima facie the application of the guidelines suggested in R v Lau Tak Ming, had they been appropriate, would have resulted in more lenient sentences but the unusual features of this case could not have peen ignored.

7. I would allow the applications and, treating this as the hearing of the appeals, set aside the sentences of nine years and substitute sentences of six years imprisonment; thus allowing the appeals also.

Silke, V-P:

8. I agree with the order proposed by my Lord Kempster and his reasoning therefor.

9. I too would allow the appeals and substitute sentences of six years imprisonment for those imposed by the trial judge.

Macdougall JA :

10. I agree with my brethren that the sentences passed by the judge on both applicants are such as to require the interference of this court.

11. However, I wish to disassociate myself from any suggestion that the burden of remorse or anxiety, it is said the applicants will have to bear on account of their children, is a mitigating factor to be taken into account in a case such as this.

12. The applicants were well aware of what they were doing. They not only engaged in a course of criminality from their home in the presence of their young children, but by leaving drugs within their reach, exposed them to a very obvious and serious risk.

13. Moreover, only recently in The Queen v Lau Tak-shing (Criminal Appeal 230 or 1989) this court expressed the view that factors which could lead to a discount in sentence in other types of offence would generally have little weight where drug offences of this kind are committed. The court also made reference to the notorious fact that, in order to elicit the sympathy of the courts, drug dealers make use of the blind, the maimed, the halt, the young and the aged in the carrying out of their criminal activities.

14. If an unsympathetic ear is to be turned to such persons I am unable to accept that any remorse or anxiety which it is supposed these two unworthy applicants might suffer should weigh in their favour and constitute a mitigating factor for the purpose of sentence.

15. Notwithstanding the view that I have just expressed, I accept that, although the evidence disclosed a much longer period of trafficking than the three days specified in the indictment, the trial judge was obliged to base the sentences on the period charged. Had the prosecution seen fit to formulate an indictment in which the period of trafficking alleged was consistent with the evidence in its possession, the sentences which the judge imposed may well have been justified.

16. However, the indictment being framed as it was, I agree that these applications for leave to appeal against sentence must be granted and that the sentences imposed should be quashed and substituted by sentences of six years imprisonment.

Representation:

G.L.X. McCoy (M/s Ricky Ma & Co) for Applicants

D.G. Saw for Crown/Respondent

CACC000188/1989

IN THE COURT OF APPEAL

1989, No. 188
(Criminal)

BETWEEN

	THE QUEEN	Respondent
	AND
	NG SHUN YING	1st Appellant
	WONG PAK	2nd Appellant

---------------------------------

Coram: Hon Silke, V-P, Kempster and Macdougall, JJA

Date of Hearing: 25 May 1990

Date of delivery of Judgment: 25 May 1990

-----------------

JUDGMENT

-----------------

Kempster, JA (delivering the judgment of the court) :

1. On 7 April 1989, on the verdict of a jury, Ng Shun Ying and Wong Pak, wife and husband, were convicted by O'Connor J of trafficking in a dangerous drug. After some considerable delay in getting this matter before the court we have heard Wong's application for leave to appeal against his conviction, time having been extended on 7 July 1989, and Ng's application' to extend time for leave to do likewise.

2. Having regard to the arguments addressed to us in relation to the conduct of the trial we have extended Ng's time, allowed both applications for leave to appeal and treated this as the hearing of both appeals.

3. The evidence called at trial by the prosecution showed, if accepted by the jury as patently it was, that between 24 and 26 August 1988 at their home in a room in Block 17 of Tung Tau Estate, Wong Tai Sin, the appellants were running a drug retailing business and that, in the course of that business, they sold to undercover police officers syringes loaded with dangerous drugs. When the premises were raided about 175 syringes, traces of dangerous drugs and considerable sums of money, including $1,242 in coins, were found in the premises. Money and syringes were passed through the grille outside the appellants' flat. Syringes were sold at a price of $25-30 each. A video film was taken between the dates just mentioned but it was effective only to show that a form of buying and selling of some unidentified merchandise was taking place in or about the premises at the material time.

4. The appellants gave evidence denying the sale or supply of dangerous drugs in syringes. It was not challenged that they occupied the premises or that the syringes were there found. The first appellant, for her part, admitted that she bought drugs at least on a daily basis. But both claimed to be drug addicts and that syringes and dangerous drugs were for their own use.

5. By the perfected grounds of appeal, filed as recently as 21 May 1990, today being the 25th, attention is dram to certain passages in the evidence of a sergeant and of another police officer who adopted the undercover role of purchasers of dangerous drugs at the premises. Sergeant Yuen was asked by counsel for the Crown what prior instructions he received. Rather surprisingly there was no intervention at such an invitation to give hearsay testimony by counsel for either of the appellants or by the very experienced judge. The answer was -

"When I got into the room Chief Inspector Kerrigan told me that someone has peen selling dangerous drugs in syringes at Room 644, Block 17 of the Tung Tau Estate."

A little later on, in the course of the evidence of Police Constable Law, he also was asked by counsel for the Crown "What instructions did you receive?" Again, even more surprisingly, there was no intervention from counsel for either of the appellants or from the learned judge. The answer followed the same pattern as that of the sergeant : -

"We were told that shortly afterwards there would be an operation. The sergeant and I would pose as customers. According to information received dangerous drugs in syringes were available for sale at Room 644, Block 17 of Tung Tau Estate."

The testimony of both witnesses having been given in the presence of the jury and being not only hearsay but potentially damaging and prejudicial as well the judge had to elect what course he would adopt. It is proper to repeat that no objection was raised by counsel. He could of his motion have discharged the jury. He could at each juncture have advised the jury to ignore what they had heard. He could have done so in the course of his summing up. In order to avoid giving the inadmissible testimony undesirable emphasis he could, as apparently he did, have ignored it. This was a difficult decision for the trial judge and the sort of predicament in which he found himself was recognised by Lord Goddard CJ in R v Jackson [1953] 1 Weekly Reports 591; an authority cited in the judgment of my Lord the Vice-President in R v Li Chun Choi Cr App No 1244 of 1989 (unreported). The facts in that appeal were not dissimilar from those with which we are presently concerned though it is true that in the instant case the video film provided independent evidence confirming in part that of the police officers.

6. In the face of the evidence as a whole we have to determine whether or not the convictions were safe. We accept the submission made by Mr McCoy on behalf of the appellants that the admission of the hearsay testimony constituted not merely an irregularity in the course of the trial but a material irregularity.

7. Among the authorities cited to us was R v Ko Po Kun [1989] 2 HKLR 8, where, in his summing up to the jury, the trial judge had himself adopted the unhappy expression "target person". There the application for leave and the appeal itself were allowed. Here we have a different situation because O'Connor J did not allude to the hearsay testimony and, as we have already indicated, the matter of complaint is similar to that in R v Li Chun Choi. But in that case counsel for the Crown had opened the case to the jury with the words : -

" ... Early in June of last year a Detective Police Constable called Lam Tak Ming, who will be giving evidence to you shortly, received information that a man called 'Ah Choi', often delivered or dealt with the dangerous drugs at the junction of Castle Peak Road and Camp Street in Kowloon. And the detective police constable received information that this man, Ah Choi, was said to live at 118 Castle Peak Road. And the police officer also received information as to the description of this man Ah Choi".

Nothing said by the trial judge disabused the jury of the impression that the applicant, referred to as Ah Choi, had been named by others. It was not suggested that no injustice had been occasioned. This court allowed application and appeal.

8. So assisted we have considered whether or not the material irregularity with which we are concerned affected the deliberations of the jury or, by reference to section 83 of the Criminal Procedure Ordinance (Cap 221), occasioned a miscarriage of justice. Having regard to the strength of the prosecution evidence describing the purchase from each of the appellants of syringes, found on analysis to contain dangerous drugs, to the fact of occupation of premises in which were syringes, traces of dangerous drugs and monies and to the contents of the video film, we are satisfied that no miscarriage of justice actually derived from the hearsay testimony in the particular circumstances of the instant case. We do not suggest that the trial judge should have referred to it in his summing up.

9. The appeals are dismissed.

[Both appellants seek leave to appeal against sentence. These applications stand adjourned to Friday 1st June at 9.30 a.m.]

Representation:

G.J.X. McCoy (M/s Ricky Ma & Co) for Appellants

D.G. Saw for Crown/Respondent