Case Detail

CACC000572/1995

IN THE COURT OF APPEAL

1995, No. 572
(Criminal)

BETWEEN
	THE QUEEN

	AND

	LEUNG SAI WAH

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Coram : Hon Yang, C.J., Power, V.-P.

Date of Hearing : 2 May 1996

Date of Judgment : 2 May 1996

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the judgment of the court.

2. The applicant was convicted after trial to one count of trafficking in a dangerous drug and sentenced to 10 years' imprisonment. The quantity of drugs involved was a mixture of 338.76 grammes with the narcotic content at 57.53 grammes of heroin.

3. The applicant was convicted and sentenced on 8 August 1995. He did not lodge his notice to appeal until 28 November 1995. He was, therefore, out of time. For reasons which will become clear, we allow him an extension of time to enable him to pursue his application for leave to appeal against sentence.

4. The applicant was found in possession of the dangerous drug involved outside June Garden at Tung Chau Street. According to the guideline laid down in the well-known case of Lau Tak Ming [1990] 2 HKLR 370, for a quantity of 50 to 200 grammes, the range of sentence should be 8 to 12 years. The quantity of drugs involved therefore comes at the bottom end of the range.

5. The learned trial judge obviously had in mind the case of Lau Tak Ming but he referred to "a long history of criminal convictions and the last conviction of a similar offence was in 1981." Further, he took the view that the applicant had not learned from his previous mistakes even after having served a four-year prison term for robbery which was in 1989.

6. We do not think the judge should have taken into consideration criminal convictions which were not similar nor would it be right for him to take as an aggravating factor a similar conviction which took place fourteen years ago. For these reasons, we think it right to follow the guidelines in Lau Tak Ming and reduced the sentence of ten years to one of eight years.

7. We allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal. We reduce the sentence of ten years to eight years.

( T L Yang )	( N P Power )
Chief Justice	Vice President

Representation:

Applicant - in person

Mr Derek Pang of the Attorney General's Chambers for Crown/Respondent

IN THE COURT OF APPEAL

No.572 of 1995
(Criminal)

BETWEEN

	THE QUEEN	Respondent
	and
	LEUNG SAI WAH	Applicant

__________________

Coram: Hon. Ching, J.A., Bewley & Wong, J.J.

Date of Hearing: 21^st November 1995

Date of Judgment: 21^st November 1995

__________________

JUDGMENT

__________________

Bewley, J.: (delivering the judgment of the Court)

1. The applicant was convicted after trial by Deputy Judge Pang and a jury on one count of unlawful trafficking in dangerous drugs, namely 338.76 grammes of a mixture containing 57.53 grammes of heroin bydrochloride.

2. On 8^th February, 1995, DPC 46112 was patrolling in Tung Chau Street with a woman police constable when he saw the applicant alighting from a taxi 20 feet away. He told the court that he intercepted him and identified himself as a police officer. The applicant tried to run but was overpowered. He was searched and in the inner pocket of his jacket a rectangular block wrapped in gold and red paper was found. When asked what it was the applicant said it was white powder. It was an admitted fact that these were the drugs in the indictment.

3. The applicant was cautioned and allegedly said: “Ah sir, I have already been caught by you, I will co-operate with you but let my wife go.” He later told the officer he had bought the white powder. He was escorted to his home nearby which was searched. In the kitchen two plastic bags containing various items, including a blender bearing the applicant’s fingerprint, were found. The applicant was again cautioned, he admitted all the things were his and said he would co-operate if the police let his wife go.

4. The applicant gave evidence. He said he was a waiter and also worked in a gambling establishment. He earned $20,000 plus per month. That day he bought one ounce of heroin for his own consumption. It was wrapped in tissue paper and was not the block allegedly found in his pocket. He paid $2,300 for the heroin, which would last him for 10 to 12 days. When he was arrested he was carrying a bag containing the one ounce of heroin and a loaf of bread. The police picked up the rectangular block from a flower bed and alleged it was his. He denied saying anything about his wife.

5. The applicant said the carrier bags in the kitchen had been given to him several weeks earlier by one Fei Wah and he was storing them for him. He admitted he knew the items could be used for packaging heroin but he had no such intention. His thumb print was on the blender because the police had mad him hold it.

6. In his grounds of appeal the applicant complains first about the evidence of an inspector from the Narcotics Bureau that the retail value of the heroin was $97,000 on the grounds that it was hearsay and inadmissible. He has not pursued this ground before us today. The evidence was highly relevant as it assisted the jury to draw the inference that the applicant would not be able to afford to buy such a quantity for his own consumption.

7. The applicant also alleges that some members of the jury had not been paying attention to the evidence. If that were so, it was his duty to draw the fact to the attention of his counsel, who then could have invited the judge to take action. It is too late now for us to take the matter further.

8. The third ground of appeal is that the jury did not carry out the judge’s direction to ignore prejudicial evidence. This presumably is reference to the finding of caffeine in the plastic bags in the kitchen. There is nothing to indicate that the jury ignored that direction.

9. The applicant now also complains about his counsel, who he says had advised him to plead guilty and did not carry out his instructions. This also is a matter that we are unable to investigate at this stage.

10. The jury was left with a straightforward factual issue to resolve. They clearly accepted the police evidence and rejected that of the applicant. The judge correctly left the jury the option of convicting the applicant of simple possession if they believed the heroin was for his own consumption. They rejected this possibility.

11. No errors by the judge are apparent in the summing-up and we have heard nothing today that gives us cause for concern that the verdict is unsafe or unsatisfactory. The application is therefore dismissed.

(Charles Ching)
Justice of Appeal

(E. de B. Bewley)
Judge of the High Court

(Michael Wong)
Judge of the High Court

Mr Wesley Wong, Crown Counsel, for Crown/Respondent

Applicant in person

THE QUEEN v. LEUNG SAI WAH

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