HKSAR v Kong Tat Lung
Court of Appeal
Criminal Appeal No 27 of 2016
Yeung V-P, Cheung and Pang JJA
29 June 2017, 11 August 2017

Criminal law and procedure —directions to jury — whether directions on dealing with defence evidence, drawing inferences, previous convictions and lies inappropriate and inadequate

Criminal sentencing — dangerous drugs — trafficking — part of drugs for self-consumption — reduction in sentence — proper approach where defendant’s case was: (a) substantial part of drugs for self-consumption; and (b) part, not substantial part, of drugs for self-consumption

D was found guilty of one count of trafficking in dangerous drugs, namely 30.25 g of “Ice”, and was sentenced to eight years’ imprisonment. He sought leave to appeal against his conviction and sentence, arguing that: (a) the Deputy Judge’s directions on dealing with the defence evidence, drawing inferences, previous convictions, and lies were inappropriate and inadequate; and (b) the sentence was manifestly excessive because the four-month reduction allowed on the basis that part of the drugs were for D’s own consumption was inadequate.

Held, granting leave to appeal against conviction but dismissing the appeal against conviction and refusing leave to appeal against sentence, that:

Appeal against conviction

Judges’ directions to a jury were not cast in iron and inflexible. Proper directions must be given according to the circumstances of individual cases, and must be comprehensive and fair. (See para. 26.)

Here, D had disclosed his drug habit and prison sentence to strengthen his defence that the drugs were for his own consumption. The Deputy Judge directed the jury to the effect that D’s criminal record was irrelevant to whether he was guilty or not. The direction was reasonable and adequate, and did not cause any disadvantage to D. It was not necessary to give further directions on how the previous convictions affected D’s credibility and propensity to commit the present offence, and such directions would only serve to strengthen the jury’s impression that D had a drug habit (HKSAR v Lam King Yin (CACC 162/2014, [2015] HKEC 840) considered). (See paras. 27–33, 36).

As in the overwhelming majority of circumstances, it was unnecessary for the Deputy Judge to give a lies direction. The Deputy Judge only needed to give the usual directions on the burden and standard of proof. However, the Deputy Judge’s incomplete lies direction did not affect the safety of the conviction (Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 applied). (See paras.37–38, 42.)

Although there might have been minor imperfections in the Deputy Judge’s directions regarding the treatment of D’s evidence, they did not render the conviction unsafe and unsatisfactory. Further, as long as the directions were clear and precise, their order was not important. (See paras. 45, 49.)

Appeal against sentence

Where a defendant argued that part of the drugs were for his own consumption, in order to receive a reduction in sentence, he must make clear whether his case was that a substantial part of the drugs were for his own consumption. If so, the court should deal with the case in accordance with the principles laid down in HKSAR v Wong Suet Hau, and if necessary, decide by way of a Newton hearing whether the claim was made out. The recommendation of a 10 percent to 25 percent reduction of sentence in HKSAR v Chow Chun Sang only applied where a prominent or very substantial part of the drugs trafficked were for self-consumption. If the defendant’s case was that only a part of the drugs was for his own consumption (as opposed to a substantial part), the court could still exercise its discretion as to whether any reduction in sentence should be given and the extent of such reduction (HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 considered; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116 explained). (See paras. 58–69.)

Under normal circumstances, and in the present case, it was not appropriate to use the reduction in sentence for self-consumption of only a part of the drugs as a ground of appeal to ask for a further reduction from the Court of Appeal. (See paras. 64, 70.)

Application for leave to appeal against conviction and sentence

This was an application for leave to appeal against conviction and sentence for trafficking in dangerous drugs before Deputy Judge Poon Siu Tung. The facts are set out in the judgment.

Jurisdictions: 

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