HKSAR v. WONG WAI HONG

CACC 213/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 213 OF 2013

(ON APPEAL FROM DCCC 236/2013)

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

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

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

JUDGMENT

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

Hon D Pang J (giving the judgment of the court):

1.  The Applicant pleaded guilty to one count of trafficking in dangerous drugs, namely 10.63 grammes of ketamine and 6.36 grammes of cocaine by pure narcotic content. He was sentenced by Judge G Lam in the District Court to 50 months’ imprisonment. He seeks leave to appeal against that sentence.

The Facts

2.  Police laying in ambush caught the Applicant outside his flat.  A search of those premises uncovered a box containing all the drugs in question.  The ketamine was then in four resalable plastic bags; the cocaine in 35 of the same.  Also found were one electronic scale and many plastic bags of the kind mentioned.  Under caution, the Applicant stated, “All the items in this … box belong to me, half selling half consumption by me, to sell the drugs to earn some money.”

Original Sentencing Exercise

3.  The judge did not accept that as much as half of the drugs seized were for the Applicant’s own consumption.  Based on the way in which the drugs were bagged, and the fact that packaging paraphernalia was discovered on site, the substances were found to be mainly for trafficking.

4.  Insofar as it concerns the issue on appeal, the following is what the judge said:

“10. In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.

……

12. The defendant trafficked in a cocktail of drugs consisting of 10.63 grammes of ketamine and 6.36 grammes of cocaine. For 10.63 grammes of ketamine, the appropriate starting point is 4 years. For 6.36 grammes of cocaine, the appropriate starting point is 4 years. In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. 16.99 grammes of cocaine), the starting point would have been 5.5 years. Based on the nature and quantities of the cocktail components, instead of simply adding 4 years onto 4 years, I consider that the ‘combined’ approach would arrive at a realistic and fair sentence.

13.     To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail of drugs, I adopt a starting point of 6.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 52 months.  Regarding his claim for partial self-consumption, I am prepared to grant him a nominal discount of 2 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 50 months' imprisonment.”

The Complaint

5.  Mr Luk for the Applicant complains that the judge was wrong to have added the two drugs together to achieve a fictional aggregate of 16.96 grammes of cocaine, and the corresponding starting point of 5½ years.  It is submitted that that was a wrong application of Yip Wai Yin (ibid) which entails nothing more than first setting the applicable term for the more serious drug (cocaine), and then taking into account the quantity of the other drug (ketamine) to arrive at an ultimate sentence. Alternatively, Mr Luk complains that since 4 years was the adopted starting point for the cocaine, the overall starting point of 6½ years must mean that there was an upward adjustment of 2½ years for the ketamine, which is manifestly excessive.  He prays in aid the case of HKSAR v Yim Hung Lui Ricky CACC 266/2011.

Discussion

6.  In Yim Hung Lui Ricky, the sentencing judge adopted an 8‑year starting point for 26.8 grammes of ice. She then adjusted it to 12 years to cover 4.56 grammes of cocaine and 22.67 grammes of ketamine.  On appeal, this was held to be wrong because if the sum total of drugs involved were all ice, the tariff sentence would only be 9 years.  Conversely, a 12-year starting point would indicate an offence of trafficking in as much as 180 to 185 grammes of ice.  This was said to be absurd.  As a result, the overall starting point was reduced to 10 years.

7.  Similarly, in Yip Wai Yin, at para 9(2) of the reported judgment[1], this Court said that:

“… sentencing on the basis of individual drugs may lead to an absurdity where the addition of the sentences on each individual drug leads to a higher overall sentence than if the whole quantity of the cocktail actually contained the more or most serious of the various drugs …”

8.  Looking at the fictional aggregate of the most potent drug and the sentence which would thereby be warranted, is one method of testing the appropriateness of the overall starting point.  That method, as well as others, are discussed by this Court, differently constituted in part, in HKSAR v Chan Yuk Leong CACC 318 of 2013, unreported, 8 April 2014.

9.  The 4-year starting point is beyond reproach for each of the index quantities of cocaine (6.36 grammes) and ketamine (10.63 grammes): AG v Pedro Nel Rojas [1994] 2 HKCLR 69; SJ v Hii Siew Cheng [2009] 1 HKLRD 1.  Using the cocaine as a base, however, we do find the ketamine-required upward adjustment of 2½ years to be inordinate.

10.  The ketamine here is small in quantity; it attracted a 4‑year starting point only because the sentencing tariffs are proportionately heavier at the lower ends.  To add to that, the 2½-year enhancement did not seek to mitigate the harshness of the situation; but it rather had the effect of visiting the Applicant with a result suggestive of two, by and large, consecutive sentences – one for each drug.

11.  Approaching the matter from another angle, the overall starting point of 6½ years is the proper starting point for trafficking in 30 grammes of cocaine.  Given the considerable difference in seriousness between cocaine and ketamine, this result seems to us to be clearly wrong.  

12.  In taking this view, we acknowledge as correct the Respondent’s submission that the presence of more than one type of drug in trafficking may be an aggravating factor: HKSAR v Cheung Po Cho Tommy CACC 233/2005.  We do not, however, think that this consideration justifies the sentence.

13.  The enhancement for the ketamine should not have been more than 1½ years; and the overall starting point, not more than 5½.  That is the starting point which we adopt.  Giving credit for the plea of guilty and for the judge’s acceptance that a small part was for self-consumption, we arrive at a sentence of 42 months imprisonment.

Conclusion

14.  We grant the applicant leave to appeal his sentence, treat the application as the appeal, allow the appeal and reduce the applicant’s sentence to 42 months. 

[1]  [2004] 3 HKC 357