HKSAR v. LAN XIANXIN AND ANOTHER

[English Translation – 英譯本]

CACC 245 /2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 245 OF 2014

(ON APPEAL FROM DCCC 175 OF 2014)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The two applicants Lan Xianxin (Lan) and Li Qichang (Li) pleaded guilty before District Judge C. P. Pang (the trial judge) to one charge of importing a controlled chemical not under and in accordance with a licence and one charge of possession of a controlled chemical respectively.  Lan and Li were respectively sentenced to 4 years 8 months’ and 2 years 8 months’ imprisonment.

2.  Both applicants were aggrieved by the sentences, and applied for leave to appeal against sentence.  Li’s application is out of time, so he also applied to the Court for an extension of time.  After hearing, this Court dismissed both applicants’ applications for leave to appeal against sentence.  Our reasons are as follows.

Prosecution Case

3.  In the afternoon on 1^st November 2013, Lan arrived at the Hong Kong International Airport on a flight from Cairo, Egypt via Doha.  He collected two suitcases and took an Airbus to the Sheung Shui MTR Station, where another male (Wu Yangwang) (transliteration) approached him and chatted with him.  Lan gave one of the suitcases to Wu Yangwang, and the two went to the taxi stand nearby. They put the two suitcases into the taxi boot, and Wu Yangwang got on the taxi, while Lan took the MTR to Lo Wu.

4.  The taxi Wu Yangwang took stopped at the Cambridge Plaza, Sheung Shui.  He collected the two suitcases, and walked to the lift lobby of the Cambridge Plaza.  Then, Li approached Wu Yangwang, and the two of them each took one suitcase and left.

5.  Customs Officer(s) who had been keeping the whole course of events under surveillance intercepted Li and Wu Yangwang, and opened for inspection in their presence the two suitcases they were carrying.  Each suitcase contained 24 bags of tablets in tinfoil packets disguised in Chinese tea leaf packages.

6.  Under caution, Li denied ownership of the suitcase(s) in question, and said that (he) did not know Wu Yangwang.  However, Li’s mobile phone contained photographs showing some medicine bottles with outer labels of pseudoephedrine and a large quantity of tinfoil packets.

7.  Lan was also arrested at the Lo Wu Departure Hall.  Under caution, he claimed to be in the automobile parts business, and admitted to having returned to Hong Kong from Egypt earlier.

8.  During the interview with the Customs Officers, Lan said that when he was returning to Hong Kong from Egypt, he got the two suitcases in question from an unknown foreigner outside the Egypt airport.  He admitted to bringing the two suitcases back to Hong Kong for a remuneration of 1,000 renminbi.  He also said that he later received instruction to go to Sheung Shui and to hand the suitcases to Wu Yangwang, then headed to Lo Wu, planning to leave Hong Kong.

9.  On the other hand, Li said that a friend named Xiao Yong Ge (transliteration) told him to pick up something from a person named Xiao Wu (transliteration), and that he was arrested while assisting Xiao Wu in carrying the suitcase(s).  Li denied knowledge of the nature of the item(s) inside the suitcase(s).

10.  The suitcase that Li took contained 24 bags of tablets, weighing 25.82 kilogrammes and containing 5.63 kilogrammes of pseudoephedrine.  The two suitcases in question contained 48 bags of tablets, weighing 51.48 kilogrammes and containing 11.89 kilogrammes of pseudoephedrine.

11.  According to the testimony of the expert witness for the prosecution, pseudoephedrine is capable of being used in the manufacture of “ice”, and every 10 kilogrammes of pseudoephedrine can produce about 5.5 kilogrammes of “ice”.  Therefore, the 5.63 kilogrammes and 6.26 kilogrammes contained in the two suitcases in question can produce 3.1 kilogrammes and 3.4 kilogrammes of “ice” respectively.

12.  However, the expert agreed that the above statement was based on an assumption that the refining process would be 100% successful.  Hence, the actual quantity of “ice” that could have been manufactured from the pseudoephedrine in question is unknown.

13.  Pseudoephedrine is a controlled substance.  To prevent its use for illegal purposes, the Ordinance provides for illegal importation and possession of pseudoephedrine the maximum penalty of a fine of $1 million and imprisonment for 15 years, for the obvious reason that pseudoephedrine is a raw material in the manufacture of “ice”.

14.  Lan admitted that he knew that the two suitcases in question contained pseudoephedrine, and believed that the pseudoephedrine can be used in the manufacture of dangerous drugs.  However, he said that he did not know the exact use of them, and did not know, nor had grounds to believe, that they were to be used in the manufacture of “ice”.

15.  Li also admitted that he knew that the suitcase he carried contained pseudoephedrine, and agreed that he had grounds to believe that it would be used in illegal manufacture of dangerous drugs.

The Trial Judge’s Reasons for Sentence

16.  The trial judge rejected Lan’s claim that the pseudoephedrine in the suitcases was for feeding chicken. The trial judge found that the evidence was insufficient to prove that Lan knew that the dangerous drugs manufactured from pseudoephedrine would have been “ice”, but the reasonable inference was that Lan did know that the pseudoephedrine contained in the suitcases was for the manufacture of dangerous drugs.  In fact, counsel representing Lan at the trial accepted that Lan knew that the pseudoephedrine he imported into Hong Kong was capable of being used in the manufacture of dangerous drugs.  The trial judge noted that Lai admitted that he had reasonable grounds to believe that the substance he carried was for the manufacture of dangerous drugs.  He considered transportation or possession of substances capable of being used in the manufacture of dangerous drugs an extremely serious offence.  He cited HKSAR v Ho Ka Ming (transliteration) （香港特別行政區訴何家銘）(CACC425/2009), and with reference to that case, regarded the defendant’s understanding of the nature of the substance in question an important factor in the consideration of sentence.

17.  The trial judge noted that Li was not involved in the importation of the pseudoephedrine in question, and while he was in possession of the pseudoephedrine, he only had reasonable grounds to believe, instead of knowing, that the pseudoephedrine would be used in the manufacture of dangerous drugs.  Further, he was younger than Lan. Hence, his culpability was lower than that of Lan.

18.  The trial judge stressed that the 11.89 kilogrammes of pseudoephedrine which Lan imported for financial gain posed great harm to the society.

19.  The trial judge identified a proper starting point of 7 years’ imprisonment in respect of Lan.

20.  The trial judge pointed out that the pseudoephedrine in Li’s possession, although only in the amount of 5.63 kilogrammes, was in a quantity that was capable of being manufactured into 3.1 kilogrammes of “ice”.  Having considered that Li was only concerned with half of the whole lot of pseudoephedrine, the trial judge identified a proper starting point of 4 years’ imprisonment in respect of Li.

21.  Since both applicants pleaded guilty, the trial judge reduced the sentences by one-third, reaching 4 years 8 months and 2 years 8 months respectively.

Grounds of Appeal

22.  Mr P.Y. Lo, counsel for the applicants, considered that the starting point of 7 years adopted by the trial judge in respect of Lan was manifestly excessive.  Mr Lo stressed that Lan had only imported controlled chemicals against the law, and the evidence was insufficient to prove that such controlled chemicals would definitely be used in the manufacture of “ice”.

23.  Mr Lo emphasized that there was no evidence to prove the actual intended use of the chemicals imported by Lan, and there was also no evidence showing that the batch of chemicals would be exported out of Hong Kong.  Therefore, the trial judge should not have used the quantity of “ice” that could have been manufactured from the chemicals in question as a basis in passing sentence, and could only consider the potential risks in the possibility of such chemicals being used in the manufacture of “dangerous drugs”.

24.  In the above circumstances, Mr Lo took the view that the starting point of 7 years adopted by the trial judge in respect of Lan was excessive.

25.  Mr Lo submitted that in similar cases, the Court has adopted much lower starting points than the trial judge. In particular, Mr Lo cited HKSAR v Cao Yuhui & others (DCCC 823/2013), HKSAR v Xiao Chunming (DCCC 182/2014) and HKSAR v Wong Yi Ching (transliteration) （香港特別行政區訴王苡靜） (DCCC 917/2013) in support of his contention.  Mr Lo stressed that in Cao Yuhui, the defendant imported about 6 kilogrammes of pseudoephedrine, and the Court adopted a starting point of 3 years. In Xiao Chunming, the defendant imported about 10 kilogrammes of pseudoephedrine, and the Court adopted a starting point of 4½ years.  In Wong Yi Ching, the defendant imported about 6 kilogrammes of pseudoephedrine, and the Court also adopted a starting point of just 4½ years.  Therefore, Mr Lo considered that the appropriate starting point for Lan should be 6 to 6½ years.

26.  Mr Lo stressed that Li was only asked by a friend to help Wu Yangwang carry the suitcase(s), and did not benefit from it.  Mr Lo submitted that the culpability of Li was much lower than that of Lan, hence the starting point of 4 years adopted by the trial judge for him was also excessive.

27.  Mr Lo reiterated that the quantity of “dangerous drugs” that could have been manufactured from the pseudoephedrine in question is unknown.  Therefore, the making of an assumption that the 5.63 kilogrammes of pseudoephedrine in Li’s possession was capable of being manufactured into about 3.1 kilogrammes of “ice”, and from that, stating that the offence committed by Li posed great potential harm to the society in passing sentence, appears to be unfair to Li and to have exaggerated his culpability.

28.  Mr Lo considered that the appropriate starting point for Li should be 3 years.

Discussion

29.  The expert witness testified that the 11.89 kilogrammes of pseudoephedrine imported by Lan was capable of being manufactured into about 6.5 kilogrammes of “ice”, and the 5.63 kilogrammes of pseudoephedrine in the possession of Li was capable of being manufactured into about 3.1 kilogrammes of “ice”.

30.  Had the two applicants found to be in possession of 6.5 kilogrammes or 3.1 kilogrammes of “ice” for the purpose of illegal trafficking, they would have faced sentences far exceeding 20 years’ imprisonment.

31.  Having said that, the two applicants did not commit the offence of “trafficking in a dangerous drug”, but they either knew or believed that the pseudoephedrine they had imported or possessed were for illegal manufacture of dangerous drugs, albeit not necessarily knowing that the dangerous drug so manufactured would have been “ice”.  In fact, this Court finds that considering the background of this case, apart from being used in the manufacture of dangerous drugs, there can be no other legitimate use of the pseudoephedrine in question.  The trial judge had already dealt with the applicants most generously in finding that they did not necessarily know that the pseudoephedrine in question was for the manufacture of “ice”.

32.  The defendants in Cao Yuhui, Wong Yi Ching and Xiao Chunming had imported various quantities of pseudoephedrine, and all of them denied knowledge that the pseudoephedrine would have been used for the manufacture of dangerous drugs, and the trial judges sentenced them on such basis.  Neither do those cases provide guidance to, nor are they binding on this Court, nor do they support Mr Lo’s contention.

33.  This Court considers that any person importing or in possession of raw materials capable of being used in the manufacture of dangerous drugs, same as those trafficking in a dangerous drug, should be given a heavy sentence, since such crimes cannot otherwise be deterred.  The Legislature has also recognized the seriousness of the crime of importation and possession of pseudoephedrine, and provided for a maximum penalty of a fine of $1 million and imprisonment for 15 years.

34.  This Court cannot overlook that condoning the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is equivalent to condoning the offence of manufacture of dangerous drugs, thereby posing great harm to the society. Successful deterrence of the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is also equivalent to successful reduction of production of dangerous drugs.  The trial judge’s view that the offences committed by the applicants “posed great potential harm to the society” is absolutely reasonable, which we agree.

35.  In Ho Ka Ming, the defendant admitted to one charge of illegal importing and exporting of 2.7 kilogrammes of a solid, containing 1 kilogramme of pseudoephedrine, and the Court of Appeal found that the starting point of 6 years was not manifestly excessive.  In particular, the Court of Appeal emphasized that the defendant in that case knew that the substance in question would have been used in the manufacture of dangerous drugs, and the fact that he did not know the method of manufacture nor the quantity of dangerous drugs that could have been produced would not reduce his culpability.

36.  In the present case, Lan imported a total of almost 12 kilogrammes of pseudoephedrine, nearly 12 times as much as the amount of pseudoephedrine in Ho Ka Ming mentioned above. The pseudoephedrine in the possession of Li also amounted to 5.63 kilogrammes.

37.  This Court cannot overlook that Lan imported the batch of pseudoephedrine from overseas, and Li was very likely to be assisting others in exporting the batch of pseudoephedrine into the Mainland.  They knew or had grounds to believe that the pseudoephedrine was for the manufacture of dangerous drugs.

38.  This Court considers that the starting points of 7 years and 4 years adopted by the trial judge for Lan and Li respectively are not manifestly excessive.

39.  Incidents of Mainlanders importing pseudoephedrine from overseas through Hong Kong are common, which explains why large quantities of “ice” are being manufactured in the Mainland and being exported, including to Hong Kong.  This situation must be stopped. If there is information showing a rising trend of similar crimes, in sentencing, the Court might need to set out sentencing guidelines corresponding to the quantities of pseudoephedrine in question, with a view to eradicating such crimes, so as to reduce the prevalence of “ice”.

40.  We allow Li’s application for leave to appeal out of time, but dismiss Li’s and Lan’s applications for leave to appeal against sentence.