HKSAR v. YUNG KA KIN

CACC 240/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 240 OF 2007

(ON APPEAL FROM HCCC NO. 85 OF 2007)

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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) :

1.      On 12 July 2007, the Applicant pleaded guilty before Wright J to three counts of trafficking in dangerous drugs.  The drugs and the quantities involved were, respectively, 2.56 kilogrammes of ketamine, 9.98 kilogrammes of ketamine and 2.46 kilogrammes of cannabis.  He was sentenced to imprisonment for 10 years for the first charge, 12 years for the second and 16 months for the third.  Four years and four months of the second charge were ordered to be served consecutive to the sentence for the first charge and four months of the third charge were ordered to be served consecutive to the other sentences.  Overall, therefore, the Applicant was sentenced to 15 years imprisonment.  The Applicant now seeks leave to appeal against sentence.

2.      The facts relevant to all three charges took place on 24 November 2006 when the Applicant was stopped by the police in Fanling.  There was found in his shoulder bag 2.99 kilogrammes of a powder containing 2.56 kilogrammes of ketamine.  Keys found on his person led to the police searching premises in which were found 11.56 kilogrammes of a powder, this time containing 9.98 kilogrammes of ketamine.  The Applicant then informed the police of the existence of cannabis in another set of premises to which he had access.  There, the police found 2.46 kilogrammes of cannabis in herbal form.  The estimated value of the ketamine was some $2,619,000; that of the cannabis, $159,900.

3.      In sentencing the Applicant, the learned judge followed the approach he had adopted in an earlier case (HKSAR v Yeung Ka Chun，HCCC 194/2006) also involving ketamine.  The judge considered that although the courts had largely equated sentencing for ketamine with the sentences imposed for ecstasy (guidelines laid down by the Court of Appeal in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46), this method of sentencing was inappropriate.  There was, he pointed out, evidence to suggest that ketamine was now a much more harmful drug than had at first been appreciated and that it was much more prevalent in terms of both use and seizure than before.  Reference was made to the evidence that was before the Court of First Instance in HKSAR v Hii Siew Cheng, HCCC 121/2005).

4.      Accordingly, the learned judge departed from the Lee Tak Kwan guidelines and adopted starting points for the two ketamine trafficking offences of 15 years and 18-19 years imprisonment respectively.  Correspondingly, the judge also indicated that had the Lee Tak Kwan guidelines been used, the starting points would have been 12 and 15 years.  While the appropriate starting point for the two offences would then have been 19 years imprisonment (using the Lee Tak Kwan guidelines), the learned judge instead adopted a combined starting point of 22 years imprisonment.  Discounted by one-third on account of the plea of guilty, this came to 14 years 8 months.  Four months of the sentence for the cannabis charge was made consecutive to this sentence to arrive at the overall sentence of 15 years imprisonment.

5.      On 2 August 2007 (three weeks after the Applicant had been sentenced), this court in HKSAR v Mok Yiu Kau [2007] 4 HKC 586 made the following statements of principle in relation to sentencing for offences of trafficking in ketamine : -

(1)	The sentence to be imposed should be in accordance with the practice prevailing at the time the offence was committed (at 589 D-E).  Reference was made to Article 12(1) of the Hong Kong Bill of Rights and to R v Chu Chi Yat [1993] 2 HKCLR 1.
(2)	The prevailing practice at the relevant time of the offence in Mok Yiu Kau (as it was in the present case) was, rightly or wrongly, to equate the sentences for trafficking in ketamine with those for trafficking in ecstasy; in other words, the sentencing guidelines in Lee Tak Kwan.

6.      In Mok Yiu Kau, Stock JA made reference to the fact that the Court of Appeal was going to hear a review in which the issue would be whether the sentencing guidelines for ketamine should be changed.  However, any new guidelines would not apply to the case at hand.

7.      This reasoning applies to the Applicant in the present case.  The Court of Appeal has heard the case in which new sentencing guidelines have been considered (judgment is now awaited in HKSAR v Hii Siew Cheng, CAAR 7/2006) but whatever the outcome of that review, this should not affect the appropriate sentence to be imposed in the present case.  On the basis of Mok Yiu Kau, the approach should be to follow the guidelines laid down for ecstasy in Lee Tak Kwan.  The learned judge recognized he was departing from this approach and, like a number of other judges, regarded a new sentencing approach to be justified.  This, as we have indicated, is now being considered by this court in the said review.

8.      As Wright J observed, the appropriate sentence using the Lee Tak Kwan approach would be a starting point of 19 years for the two ketamine offences.  Discounted by one-third, this comes to 12 years 8 months.  There is no quarrel over the four months imprisonment sentence for the cannabis charge to be made consecutive to the sentence for the ketamine charges.  In all, therefore, the appropriate sentence for the three charges should be an overall one of 13 years imprisonment.

9.      For the above reasons, we give leave to appeal against sentence and treating this as the hearing of the appeal proper, we allow the appeal and substitute a sentence of 13 years imprisonment in relation to all three charges.