HKSAR v. YIP WAI YIN AND ANOTHER

CACC80/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 80 OF 2003

(ON APPEAL FROM HCCC NO. 395 OF 2002)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

Introduction

1. The Applicants, Yip Wai-yin (the 1st Applicant) and Wong Siu-hang (the 2nd Applicant) were convicted after pleading guilty before Gall J on 22 November 2002 of trafficking in dangerous drugs. Each was sentenced on 18 February 2003 to 9 years' imprisonment. They applied seeking leave to appeal against sentence.

2. At the first hearing of their application, the Applicants appeared in person while the Respondent was represented by Mr Paul Madigan. At the resumed hearing, the Applicants were represented by Mr Robert Pang who was instructed by the Free Legal Service Scheme of the Hong Kong Bar Association.

3. The facts leading up to the conviction were essentially these. The Applicants were arrested during a covert operation carried out by police officers in which they were involved in the sale of dangerous drugs to these police officers. The operation began on 18 June 2002 when the 1st Applicant offered to sell to a police officer 10,000 Ecstasy tablets for $260,000 at the coffee shop of a Tsim Sha Tsui hotel. On 20 June 2002, at another hotel, delivery took place. This time, both Applicants (together with another person, also a defendant who pleaded guilty before Gall J) took part. They were all arrested and the Applicants made video-recorded statements. The drugs seized consisted of 10,029 tablets and 14 tablet fragments of a drug cocktail, being a mixture of Ice (methamphetamine) and Ketamine. There were altogether 362.45 grammes of the drug, comprising 126.48 grammes of Ice and 235.97 grammes of Ketamine (approximately 35% Ice and 65% Ketamine).

4. The learned judge below heard some argument on whether Ice in tablet form was more or less harmful than if it was in a crystalline state. It had been the Applicants' submission that it was less harmful. Following an adjournment and the production of evidence from a chemist at the Substance Abuse Assessment Unit at Kwai Chung Hospital, this submission was no longer pursued. The judge took the view on the evidence before him that while 'enjoyment' of the drugs may differ as between Ice in its crystalline form and in tablet form, they were to be treated as equally harmful. Further, the judge concluded that the cocktail of drugs in this case was, if anything, more potent or harmful than its individual constituents.

5. The learned judge said this as regards the appropriate starting point for sentencing :-

"Ecstasy - the tariff for Ecstasy is set out in HKSAR v Lee Tak Kwan [1998] HKLR Digest at page 46. I therefore propose to deal with the combination of the drugs in the tablet by adding the period of imprisonment for the amount of 'Ice' or methamphetamine to that for the ketamine at the rate of Ecstasy enhanced to a degree to reflect the harmful combination.

As a starting point therefore, bearing in mind that the amount of pure drug of methamphetamine was 126.48 grammes, I would take as a starting point, 10 years' imprisonment. And in respect of the ketamine, a period of 3 years' imprisonment, enhanced by a period of one year to reflect the harmful combination, making a starting point of 14 years' imprisonment."

6. The starting point of 14 years was then reduced by one-third to reflect the pleas of guilty and further reduced to 9 years on account of both Applicants' belief that they were merely dealing in Ecstasy rather than a cocktail drug comprising Ice and Ketamine.

7. The Applicants submit that a 9-year sentence was too severe. When grounds of appeal were first submitted to the Court in the Notice of Application for Leave to Appeal Against Sentence, the Applicants' complaint was only that their sentences were excessive. After the Bar's Free Legal Service Scheme became involved, perfected grounds of appeal were filed. They, together with the original grounds of appeal and the submissions made by the Applicants themselves when they appeared in person at the first hearing of this application, raise the following points :-

(1) The judge was wrong in his approach to sentencing for a cocktail drug in that he simply looked at the individual components of the cocktail, applied the established tariffs referable to each component and then added up the figures to arrive at the starting point. (Issue 1 : The general approach to sentencing for cocktail drugs).

(2) In any event, the application of the tariff for trafficking in Ice established by AG v Ching Kwok Hung [1991] 2 HKLR 125 was wrong since the Ice found in the mixture in the present case was in tablet, and not crystalline, form. It was submitted by Mr Pang that the more appropriate tariff was that in R v Lau Tak Ming [1990] 2 HKLR 370 (for heroin). (Issue 2 : The applicability of the sentencing tariffs for Ice in AG v Ching Kwok Hung for drugs in tablet form).

(3) The judge failed to give more allowance than he did in respect of the Applicants' belief that they were dealing, not with Ice, but only Ecstasy. (Issue 3 : Mistaken belief in nature of drugs).

Issue 1 : The general approach to sentencing for cocktail drugs

8. In terms of the starting point for sentencing, the judge approached the matter by adding together what would be the appropriate individual sentences for the quantities of Ice and Ketamine as if there had been separate charges (being 10 years and 3 years using the established tariffs) and then adding another year on account of the greater potency of the combined product. In other words, the judge adopted an individual approach in sentencing, looking at each drug and then sentencing on the basis of the individual quantities to arrive at an overall sentence.

9. In a number of decisions of this Court, various approaches have been adopted or approved in relation to the sentencing of cocktail drugs or where a number of different quantities of drugs is the subject of a charge of trafficking in dangerous drugs :-

(1) The 'individual' approach as outlined above of looking at each component of the cocktail or the batch, and then sentencing by adding up the different sentences relevant to each individual drug : see for example HKSAR v Lai Kwok Hung, unreported, CACC 564 of 2002, 23 April 2003, Court of Appeal.

(2) The 'combined' approach whereby the Court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the Court is then able to assess, realistically and fairly, the appropriate sentence. For example, sentencing on the basis of individual drugs may lead to absurdity where the addition of the sentences for each individual drug leads to a higher overall sentence than if the whole quantity of the cocktail or batch merely contained the more or most serious of the various drugs : see here HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42; HKSAR v Wong Kam Wo [2001] 2 HKLRD 290.

(3) The methodology of this 'combined' approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs :- see HKSAR v Cheung Kwok Leung Lowence, unreported, CACC 539 of 2002, 22 April 2003, Court of Appeal. By "the more or most serious drug", we are not referring to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of Ice and Ketamine are found in a cocktail, the more serious drug is taken to be Ice even in terms of quantity, it may be less than the Ketamine.

(4) We have so far used the term 'significant' quantities in a cocktail. This is in contrast to insignificant amounts, in which case the Court may choose to ignore such small quantities for the purpose of sentencing.

10. Whichever approach is appropriate will depend on the circumstances of the case, but we are of the view that the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and in a commonsense manner.

11. In the present case, while the judge's approach cannot really be faulted in the circumstances of the case, we have approached the matter differently :-

(1) We think it appropriate to adopt the combined approached used in Cheung Kwok Leung Lowence.

(2) Accordingly, the more serious drug in the mixture being Ice (there being 126.48 grammes of the substance), we take as the appropriate sentence for this quantity 11 years. This is an application of the tariffs established by Ching Kwok Hung where the range of sentences for a quantity of Ice between 70 and 300 grammes is 10-14 years. We think the judge was too much on the lenient side in taking 10 years as appropriate for a quantity of Ice such as that found in the present case.

(3) An upward adjustment has then to be made to take into account the significant presence of Ketamine (235.97 grammes) and, perhaps more important, also the fact that the combined drug was more potent or harmful than its individual components. We think it appropriate to make an upward adjustment of 3 years.

(4) This makes the overall starting point for the combined drug of 14 years' imprisonment.

Issue 2 : The applicability of the sentencing tariffs for Ice in AG v Ching Kwok Hung for the drugs in tablet form

12. Mr Pang drew our attention to the reasoning of the Court of Appeal in Ching Kwok Hung as to why it was concluded that the tariff for Ice should be higher than that for heroin. He submitted that although the 2 drugs were both regarded as hard drugs, the Court of Appeal in Ching Kwok Hung thought it significant that Ice in its crystalline state could be used and re-used so that 1 gramme of the substance could allow for 10 to 15 "hits". Thus, so submitted Mr Pang, if the Ice was in tablet, and not crystalline, form, the element of reuse was not there and accordingly, it would be wrong to apply sentencing guidelines that related only to reusable substances.

13. Superficially attractive though these submissions are, we cannot accept them. Even if the Court of Appeal in Ching Kwok Hung thought the said feature of reusability important, the Courts have since applied these guidelines irrespective of whether the Ice was in crystalline or tablet form :- see for example HKSAR v Poowongsa Worachet, unreported, CACC 218 of 2001, 15 March 2002, Court of Appeal. We are not convinced that the reason for the tariffs for Ice set in Ching Kwok Hung was reusability. As the Court of Appeal held in that case Ice is in many ways a worse drug than heroin. It is more addictive. Further, Mr Justice Silke VP described the effects of the drug in the following way at 129E-I :-

" Addicts - and again there is reference to this in the American publications - achieve anti-social behaviour which includes violence. Users feel an intense wave of physical and psychological exhilaration - (the American Drug Enforcement Agency: ICE: Crystal Methamphetamine September 1989). It tends to keep the user awake and alert and provides temporary mood elevation. Its continued use causes the body to deplete its stored energy. This lack of sleep or rest prevents the replenishment of reserves. Insomnia is usually followed by sleeping for long periods of time. The drug overtaxes the body and causes the body to, in effect, burn itself up. Users commonly have vitamin and mineral deficiencies. There is lowered resistance to disease and prolonged use will cause damage to the organs particularly the lungs, the liver and the kidneys. Continued use causes a heavy degree of psychological dependence which in turn call lead to a psychotic state, insomnia, anxiety, depression and fatigue. Toxic psychosis, similar to paranoid schizophrenia and delusional states, can result from long term, or heavy short term, use. The paranoid disorders with it, unlike those associated with the use of cocaine, may persist for days or weeks and at times even longer. Prolonged use can create tolerance resulting in the abuser having to resort to heavier dosages. While there is no physical discomfort in withdrawal, nevertheless withdrawal can involve acute depression and fatigue with the depression reaching critical proportions. The progressive toxic effects of amphetamine abuse may lead to death or there can be a rapid deterioration of physical and psychological health. It is cheaper to produce than cocaine but, in the United States, sells for more. It is, of course, easier to produce because it is entirely synthetic."

14. We would finally note in the context of this part of the argument that Mr Pang fairly conceded that even if the Lau Tak Ming tariffs were applicable, it would probably not make any difference in the present case, given the quantity of Ice present in the mixture.

Issue 3 : Mistaken belief in nature of drugs

15. In R v Edward Bilinski (1988) 86 Cr.App.R. 147, it was established that in sentencing for trafficking in dangerous drugs, the Court could take into account as a factor to reduce what otherwise would be the right sentence, the fact that the defendant believed the drugs to be of a less potent type than they actually were. This reasoning has been applied in Hong Kong in a number of cases, among them HKSAR v Li Chi Hung, unreported, CACC 18 of 2002, 15 January 2003, Court of Appeal.

16. While this is admittedly a factor that is relevant to sentencing, it is in our view important to stress the following :-

(1) The availability of this factor depends on the Court being provided with evidence supporting the belief on the defendant's part that he was dealing with a different type of drug. Except where this is accepted by the prosecution, it will be rare that a Court will be satisfied by a bare assertion made in mitigation alone. The defendant will therefore have to demonstrate his belief on a balance of probabilities, unless this is already clear on the evidence before the Court. The Court will be required to look at all the circumstances of the case. For example, the Court may well have to be satisfied of the degree of care exercised by the defendant :- see Bilinski at 149. Overall, it is important to bear in mind the specific context in which this factor arises, namely, that the defendant is already admittedly a drug trafficker.

(2) Even where the Court is satisfied, this would only be a factor that goes to a reduction in what otherwise would be the appropriate sentence. The defendant will not be entitled to be sentenced on the basis, using any appropriate tariff, that the drugs were in fact what he believed them to be :- see HKSAR v Chan Yiu Hong, unreported, CACC 592 of 2002, 18 September 2003, Court of Appeal; R v Gena Ngiam [2002] 1 Cr.App.R.(S) 150 at 152. In other words, where, for example, a defendant establishes to the satisfaction of the Court that he thought the drugs were Ecstasy when in fact they were Ice, he will not be entitled to be sentenced as though the drugs had been Ecstasy . He will be sentenced in accordance with the tariff for Ice but given a discount on account of his mistaken (but genuine) belief that the drugs were something else.

17. On the facts of the present case, the judge was on the evidence satisfied that both Applicants believed they were only dealing with Ecstasy. Mr Madigan accepts this on behalf of the Respondent. The discount given to the Applicants was, however, only 2 months. We are of the view on the facts of the present case that the more appropriate reduction should be 1 year.

Conculsion

18. The end result is that the appropriate sentence for the Applicants is in our view 8 years 4 months :-

(1) The starting point for the sentence for both Applicants should be 14 years (see paragraph 11 above).

(2) On account of the guilty pleas, the Applicants are entitled to a one-third discount.

(3) The Applicants are entitled to a further discount of 1 year for their mistaken belief.

19. Accordingly, we give leave to both Applicants to appeal against sentence and, treating the present hearing as the hearing of the appeal itself, we allow the appeals and substitute sentences of 8 years 4 months for the 9-year ones imposed by the judge.

20. We thank both counsel for their assistance in this matter.