Case Detail

CACC000496/1997

CACC 496/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 496 OF 1997

(ON APPEAL FROM HCC 61 OF 1997)

BETWEEN
	HKSAR

	AND

	LAM YUK-WAH

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

Coram: Hon Nazareth V-P, Mayo and Stuart-Moore JJA in Court

Date of Hearing: 4 May 1999

Date of Judgment: 4 May 1999

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant was convicted following trial before Deputy Judge Jackson and a jury in the Court of First Instance on two counts of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134). He was charged originally on three counts and convicted on the first and third counts. The first being that on 4 November 1996 on board a vehicle Registration Mark FF 4886 outside No. 78 San Wai Tsuen, Lung Yuk Tau, Fanling, New Territories, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 3,484.92 grammes of a mixture containing 3,027.22 grammes of heroin hydrochloride. The third count being that on the same day, 4 November 1996 at the 2nd Floor, No. 3, Lane 8, Mun Hau Tsuen, Sheung Shui Wai, New Territories, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 208.06 grammes of a mixture containing 165.11 grammes of heroin hydrochloride. He was sentenced to terms of imprisonment of 25 years and 10 years to run concurrently. He now seeks leave to appeal out of time against conviction. His application was made 21/2 months out of time. He gives reasons, not in his notice of application but elsewhere, which have no substance in them.

2. However, we proceeded to consider his grounds on a de bene esse basis. These consist of broadly three grounds which are advanced on his behalf by Mr Jerome Matthews who did not appear for him below. The first point taken by Mr Matthews is concerned with the burden and standard of proof on the third direction given by the judge. The judge gave directions in the context of each of the three counts. Mr Matthews concedes that in the context of the first two, the directions were impeccable, but questions the third direction which was in these terms:

"I say again it's for the prosecution to prove its case. The defendant does not have to prove his innocence. It's a matter for you as judges of the facts, to determine where the truth lies on all of the evidence placed before you. You've seen and heard the Customs Officers against whom the allegation of fabrication has been made. Do you think that they have fabricated the evidence, or that they might have done? Again, members of the jury, that is a matter for you and for your deliberation."

The direction, Mr Matthews complains, is tantamount to inviting the jury to decide simply by choosing the version of evidence they preferred, that of the Customs and Excise Officers or the applicant. He seeks to rely in terms of legal authority upon the judgment of Brennan J in Liberato and Others v The Queen (1985) 159 CLR 507 at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence."

Mr Matthews says that he does not seek to elevate that to a principle but he suggests that it lends support to his submission that the judge having earlier given directions on the burden of proof, that it has to be established beyond reasonable doubt, omitted to do so in the foregoing passage of his summing-up.

3. In fact, looking at that passage it can be seen that the judge did state that it was "for the prosecution to prove its case". Looking at the summing-up as a whole there is plainly nothing in this submission. The judge carefully identified the points for decision and helpfully concentrated upon them. We do not accept that the jury may well have been confused by the direction, nor in the context of the entire summing-up, that it was flawed.

4. Mr Matthews had another aspect to his submission which pursued the second perfected ground of appeal. He submitted that the judge failed to consider the aspect of voluntariness in relation to the alleged oral admissions made by the applicant at the time of his arrest.

5. It has to be explained that the applicant was arrested about 6 o'clock in the morning. Certain oral admissions were made by him at the site of the arrest and later, he made a post-recorded statement at about 7 o'clock and yet another about 8 o'clock that evening.

6. Mr Matthews first of all submits that admitting the latter the judge did not consider inducements made to the applicant earlier, and therefore, ultimately that the convictions are unsafe and unsatisfactory. The burden of his complaint stems from evidence that the applicant had been handcuffed. Indeed he had, having been detained at a roadside and outside the car with only another officer present. He submits also that the applicant was hooded. That, it has to be said, was done because there were press photographers present. And third, that he had his medication for asthma taken from him and, according to his own evidence, not given to him when he had an asthma attack, because, the officers told him, he was uncooperative.

7. Mr Matthews makes that submission in the context of the recent case of Thongjai and anor v R [1997]2 HKC 109. He referred to the second paragraph of what was held which in the context of this case can be accepted as an accurate summary:

"(2) An accused person could challenge an oral admission both on the basis that he never made it and that he was ill-treated by police before or at the time of the alleged admission. The two were not mutually exclusive. The first issue, which was for the judge to decide, was whether on the assumption the alleged admission was made it was inadmissible as being involuntary. The second issue, which was for the jury if the judge ruled the alleged admission was admissible, was whether the admission was made. Ajodha v The State [1982] AC 204 considered. Mapherson v The Queen (1981) 147 CLR 512 adopted (at 116E-F)."

8. Counsel who appeared for the applicant below expressly withdrew from the judge, indeed disavowed any submission that the verbal admission was made involuntarily. It was in fact the judge who raised the question by asking "What about the alleged verbals and assaults? Are those objected to?" Counsel for the defence responded "Well, my Lord, the defendant would in due course say that - I mean, they never happened. They were written down. They're concoctions. So it follows that they wouldn't in turn be objected to. Unless I can assist the court or my friend further, those are therefore the grounds."

9. Mr Matthews accepts that given the language he used, the judge must have been aware of Thongjai whereas counsel for the defence was probably not. However that may be, in giving his ruling at the end of the voir dire, the judge said this:

"The prosecution has satisfied me beyond a reasonable doubt the document ... is voluntary in the sense that the law requires of it and it follows that I rule the document is admissible into evidence."

It seems to us that phrasing his ruling in that way indicates that the judge did not lose sight of the Thongjai point, which Mr Matthews conceded he must have been aware of, and that he took it into account in making his ruling. We are satisfied, therefore, that also in this respect there is nothing in Mr Matthews's submission.

10. We turn then to Mr Matthews's submission on the additional perfected ground of appeal. This was framed in the following terms:

"The Learned Trial Judge erred in admitting into evidence a record of interview of the Applicant, namely Exhibit P61 for the following reasons:

i) The said record of interview contained no relevant admissions, being merely a refusal to answer questions;
ii) The said interview should have been disallowed on the basis that it was conducted after the investigating authorities had sufficient evidence with which to charge the Applicant and was therefore conducted in breach of the administrative guidelines for the questioning of suspects.

Alternatively, if the Learned Trial Judge was correct in admitting the said record of interview into evidence he erred in that he failed to give the jury a full direction on the consideration they should have given to same, particularly in the light of alleged oral admissions previously made to the investigating authorities and recorded in Prosecution Exhibit P62."

11. For the respondent, Mr Lo's response in his written submissions was to point to the fact that far from the record of interview having contained no admissions, it did in fact contain material admissions. These were as to who was in the car at the time of arrest, and more importantly that the applicant was the only person who possessed the key to it. Also, there were admissions as to who lived in the house, No.3, in which the drugs, the subject of the third count, were found. These were his father and younger brother.

12. In the face of those matters Mr Matthews conceded that in fact the record of interview did contain relevant matters although he maintained that the record of interview was largely, and not merely, a refusal to answer questions. The fact remains that the prosecution were entitled upon that basis to put in the statement.

13. Turning to the second reason, the administrative guidelines relied upon are contained in paragraph (d) of the second page of Appendix I of the Rules and Directions issued by the Secretary for Security. It is to the following effect.

"(d) That when a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence;"

Mr Matthews points out that the statement was taken about 8 o'clock in the evening of 4 November 1996, the day of the arrest which took place at about 6.20 am. He says, therefore, that the officers had enough to charge the applicant that morning. In failing to do so, they breached the guidelines.

14. Even if that were so, the judge was entitled to take into account all the relevant matters in the context of deciding whether the statement was voluntary or not, and whether it should be admissible. There is no reason to suggest that he did not do so in giving his ruling. Significantly, the defence did not object to it.

15. Mr Matthews also adds to his submission the alternative matter that even if the judge was correct in admitting the record of interview into evidence, he erred in not giving the jury a full direction on the consideration they should have given to Exhibit P61. This relates in effect to the same matter we have dealt with in relation to the second perfected ground of appeal, i.e. the oral admissions and we answer it in a similar way. We can see no fault in the relevant directions.

16. In the result, we find nothing in any of the grounds which we are satisfied have no merit.

17. We accordingly decline to extend time and refuse leave to appeal.

(G.P. Nazareth)	(Simon Mayo)	(M. Stuart Moore)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr Francis Lo, SADPP for Director of Public Prosecutions

Mr Jerome Matthews (M/s Burney Wu-Scharsig) for the Applicant

CACC000496A/1997

CACC 496/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 496 OF 1997

(ON APPEAL FROM HCC 61 OF 1997)

BETWEEN
	HKSAR	Respondent
	AND
	LAM CHI KEUNG(A1)	Applicant

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Coram: Hon Power, V-P, Liu & Stuart-Moore, JJA in Court

Date of Hearing: 1 December 1998

Date of Delivery of Judgment: 9 December 1998

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JUDGMENT

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Liu JA:

1. Before Deputy Judge Jackson in the Court of First Instance, Lam Chi-keung (applicant) and his co-defendant were indicted on two counts. The 1^st count was one for trafficking in 3,484.92 grammes of a mixture containing 3,027.22 grammes of heroin hydrochloride. The 2^nd count was also one of trafficking in 1,393.46 grammes of a mixture containing 1,152.67 grammes of heroin hydrochloride on the same day in a different location. The 3^rd count was against the applicant's co-defendant alone. It was unlawful trafficking in a relatively smaller quantity of 208.06 grammes of a mixture containing 165.11 grammes of heroin hydrochloride in a further location on the same day. The applicant was convicted on the 1^st and the 2^nd counts. His co-accused was convicted on the 1^st and the 3^rd counts. The difference in quantities for which the applicant and his co-accused were found guilty was almost one kilogramme. The applicant was convicted of trafficking in a larger quantity.

2. The judge adopted 27 years as a starting point for sentence with respect to the applicant's 1^st count. Giving a third discount for plea, the applicant was sentenced on the 1^st count to 18 years' imprisonment. He was given a similar discount and received 14 years' imprisonment for the 2^nd count. Both sentences were ordered to run concurrently. His co-defendant was convicted after trial and given a 25-year imprisonment in the absence of mitigating circumstances with no discount. The co-defendant likewise received 10 years for the trafficking in the 3^rd count. Both sentences were ordered to be served concurrently.

3. The applicant was undisturbed by the lighter 10-year sentence imposed upon his co-defendant on the 3^rd count which involved a considerably less quantity. What is complained of by the applicant is his starting point of 27 years adopted by the judge for the 1^st count, which is claimed to be unjustifiably disparate to the effective starting point of sentence imposed upon his co-defendant also on the 1^st count. The applicant now seeks leave to appeal against sentence.

4. The applicant was sentenced on 28 July 1997 and his co-defendant after trial on 6 August 1997, 9 days later. In broad principle, disparity of sentences should be argued on the basis of the circumstances prevailing at the time when the sentence under complaint was passed. See R. v. Brown, [1975] Crim L R 177. The 27-year starting point of sentence for the applicant after plea was imposed by the same judge, for an identical offence and on the same 1^st count in the same prosecution which saw the conviction and sentence of his co-defendant, albeit 9 days later. For the closeness of association, the applicant should not be precluded from referring to his co-defendant's sentencing circumstances.

5. On the counts of which the applicant and his co-defendant were convicted, there was a difference of almost a kilogramme in drugs. The applicant had arguably also a more prominent role to play. But did the judge bring his mind to bear upon these matters? Far be it from this court to speculate as to how the evidence in the case impacted upon the sentencing judge, the real question for our consideration is: was the disparity justified on the views taken by the judge?

6. It is good law and sound logic that if culpability is indistinguishable between two defendants, the same sentence should be passed. Evidently, the 2-year difference in starting point is expected to evoke a real sense of grievance. In this appeal, neither the applicant nor his co-defendant had a clear record. "The only ...... difference between the situations of the (applicant and his co-defendant) that (was) apparent to (him was)", so the judge said, "that the (applicant) had a previous conviction" in 1990. (Emphasis supplied). It was a more serious offence than the offences his co-defendant had committed. A single previous conviction in the distant past could not aggravate the applicant's sentence beyond the level warranted by the gravity of the 1^st count, and the judge's sentencing process could not be legitimately linked to these varying previous convictions. The applicant was not to be sentenced on his previous record, and his sentence was to be determined by the immediate offences. Therefore, the applicant and his co-defendant could not be punished for any degree of culpability above that in the 1^st count. The judge clearly did not take into consideration the additional quantity of almost a kilogramme and what could perhaps be said to be a more prominent role of the applicant. The "only difference" in previous convictions would provide no good cause for the judge to adopt a higher 27-year starting point in the case of the applicant and 25 in that of his co-defendant for an identical offence in the 1^st count. Put another way, there were no individualised features taken in by the judge in his sentencing process to support a different starting point on the 1^st count with respect to the applicant and his co-defendant.

7. The underlying principle has always been whether there is such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered. The judge did not account satisfactorily for the disparity. This court is also unable to identify any or any sufficient cause for the adopted 27-year starting point as opposed to 25 for the co-defendant of the applicant. For these reasons, we accept that the applicant is genuinely aggrieved by the extra 2 years and we may intervene.

8. In the circumstances, the starting point for the applicant on the 1^st count should be 25 years instead of 27. From that we deduct 8 years 4 months for plea and scale it down to 16 years 8 months. We allow the application and treat the application as the hearing of the appeal. We allow the appeal and set aside the sentence of 18 years on the 1^st count and substitute therefor a sentence of 16 years 8 months. We order that sentence to run concurrently with the sentence of 14 years on the 2^nd count. In conclusion, the applicant is to serve a total term of 16 years 8 months.

Stuart Moore J.A.:

9. I agree that the first applicant's sentence must be reduced to 16 years and 8 months.

10. This is another example of how difficulties can emerge when, without good reasons which will only rarely occur, sentence is imposed on one defendant at a different time to the sentence imposed on another defendant in the same proceedings. When the trial judge described the previous conviction as being the "only difference" between this applicant and his co-defendant, it seems that the judge must have overlooked the slightly more prominent role played by the applicant and the additional kilo of heroin for which the applicant bore responsibility. It is difficult to imagine that this could have avoided notice if the mitigation for the two defendants had been heard at the same time.

11. There were no proper reasons for the applicant to have been dealt with on a different occasion to the second applicant (A2). The applicant and A2 were arraigned together on 28^th July 1997. The prosecution was given time to prepare agreed facts which were made available in the afternoon. These facts were then read into the record before the judge heard mitigation and passed sentence. On the following day, the trial of A2 commenced. This lasted seven days, before his conviction and sentence on 6^th August 1997.

12. Mr. McGuinniety, who also appeared in the court below, was unable to suggest a reason why the applicant should have been sentenced with such haste although he believed that this may have been connected to the possibility of an adjournment of A2's case. If this was so, it was all the more reason why the judge should have adjourned sentencing the applicant until the outcome of A2's trial was known in order to avoid the risk [See: R v Chan Kwok-hung (1996) 4 HKC 559] of different judges having to pass sentence in the same case.

13. Apart from the obvious disadvantages of passing sentence in the manner which was done in this case, there are positive advantages to adopting the time-honoured course of sentencing all defendants together at the end of the trial. By this stage, all the facts are known and, on the basis of these, mitigation speeches can then more sensibly be heard together. This will, in turn, lessen the risk of the judge making a mistaken assessment of the facts and the role played by each of the defendants which may otherwise lead to real or apparent disparity in the sentences imposed.

Power V.P.:

14. I concur.

(N P Power)	(B Liu)	(M Stuart-Moore)
Vice-President of the Court of Appeal of the High court	Justice of Appeal of the Court of Appeal of the High Court	Justice of Appeal of the Court of Appeal of the High Court

Representation:

Mr Francis Lo, Sr Asst. DPP (Actg.) assigned by DPP for Respondent.

Mr E L McGuinniety assigned by DLA for Applicant (1).

HKSAR v. LAM CHI KEUNG

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