HKSAR v. ISLAM S M MAJHARUL

CACC 67/2019

[2020] HKCA 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 67 OF 2019

(ON APPEAL FROM HCCC NO 379 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  By leave of the Single Judge[1] granted on 19 November 2019, the appellant appeals against his sentence of 9 years and 6 months’ imprisonment imposed on him by Toh J (“the Judge”) on 18 February 2019, following his plea of guilty to a single charge of trafficking in dangerous drugs,  namely 51.7 grammes of cocaine and 479.26 grammes of 3,4-methylenedioxymethamphetamine (commonly known as “ecstasy”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

The summary of facts admitted by the appellant

2.  In the evening of 22 February 2018, the police pursuant to a search warrant, entered and searched Room 5 of a subdivided flat on the rooftop of 54 – 56 Un Chau Street, Sham Shui Po, Kowloon. 

3.  There was no one present inside the flat, so the police forced entry into the premises and searched Room 5.  They found inside an unlocked drawer five packets, containing a total of 51.7 grammes of cocaine, 14 packets, containing a total of 2,500 tablets of 479.26 grammes of ecstasy, and an electronic scale.  They also found on a bed, a letter addressed to the appellant from the Immigration Department concerning his non-refoulement application.

4.  The appellant later returned to Room 5 and admitted that he was the occupier of the premises.  He was searched and found in his possession were keys to the flat, the room and the drawer.  The appellant was arrested, and he subsequently admitted in a video record of interview that he received the drugs from a person named “Ali”, outside Chungking Mansions, and was keeping them in his room while awaiting further instructions from him.  He had yet to receive a monetary reward from Ali for doing so. 

5.  The estimated total street value of the cocaine and the ecstasy were $81,905 and $192,500 respectively. 

The mitigation advanced by the appellant

6.  At his sentencing, the appellant was represented by Mr Andrew Bullett of counsel, who also appears for him in the present appeal. 

7.  It was noted that the appellant was 28 years old and a national from Bangladesh.  He came to Hong Kong in 2013 and had a clear record.  He applied for asylum and was a Form 8 recognizance holder at the time of the offence.  

8.  In presenting mitigation on behalf of the appellant, Mr Bullett briefly described the appellant’s background and circumstances, noting in particular that he had pleaded guilty to the present offence at the earliest opportunity.  He recognised that as the appellant committed the offence when he was a Form 8 recognizance holder, this was an aggravating factor that would have to be reflected in an enhancement of the starting point adopted by the Judge.  He suggested the enhancement should be no more than 6 months.  He also recognised that as there were two drugs involved in the offence, the Judge should apply the conversion test, which would give a starting point of approximately 11 years in sentencing the appellant.

The Judge’s reasons for sentence

9.  After setting out the facts of the case and the personal background of the appellant, the Judge noted that there were two types of narcotics involved and briefly discussed the sentencing guidelines of each of them.  She decided that she would adopt the combined approach in sentencing the appellant.

10.  The Judge found the aggregate amount of dangerous drugs in the present case was 530.96 grammes.  She noted that if she treated the 530.96 grammes as ecstasy, it would result in a starting point of 11 years and 3 months, whereas if it was all cocaine it would be 17 years and 6 months.  As the amount of ecstasy was much larger than the cocaine, the Judge decided she would use ecstasy as the base drug for her calculation of the starting point.  However, she said she would have regard to the fact that part of the 530.96 grammes was cocaine, a more serious drug in terms of potency than ecstasy, and in order to allow for this fact she would increase the starting point of 11 years and 3 months by 2 years to 13 years and 3 months.  She then took into account the fact that the appellant was a Form 8 recognizance holder at the time of the offence, and further enhanced the starting point by 1 year to 14 years and 3 months’ imprisonment.

11.  The Judge explained that there was no mitigation for the offence other than the appellant’s timely guilty plea for which she would award him the full one third discount.  This resulted in a sentence of 9 years and 6 months’ imprisonment. 

The appellant’s ground of appeal

12.  Mr Bullett complains that the Judge, when using the combined approach, erred in not basing her starting point on the sentencing guidelines for cocaine, a more potent drug, which should have been adjusted upward to allow for the significant quantity of ecstasy.  He also complains that the Judge did not check the starting point against the results from the conversion test and ratio test, and as a consequence the starting point adopted by the Judge, of 14 years and 3 months imprisonment, was manifestly excessive.[2] 

13.  In his supplemental submissions, Mr Bullett states that the parties agree that the resulting starting point calculated in relation to:

(i)      the conversion test is 12 years and 1 month when using the sentencing guidelines for cocaine as the base, and 12 years and 6 months if using the sentencing guidelines for ecstasy as the base.  The conversion test involves comparing the tariffs applicable to different drugs to arrive at a conversion rate, so that a single tariff for one drug can then be applied to the entire quantity of the drugs.  We have ourselves calculated[3] the conversion test is 12 years and 1 month when using the sentencing guidelines for cocaine,[4] and 12 years and 5 months when using the sentencing guidelines for ecstasy;[5] 

(ii)     the ratio test is 12 years’ imprisonment.  The ratio test involves calculating the ratio of weight of the different drugs according to the relevant sentencing guidelines of each drug and then adding them together.  We have calculated the ratio test is 11 years and 10 months;[6] and

(iii)     the absurdity test is 18 years and 3 months, which was less than the aggregate starting points of both drugs as calculated by the appellant as 18 years and 10 months, and the respondent as 18 years and 11 months.  The absurdity test involves applying the entire quantity of the drugs to the sentencing guidelines of the most serious drug. We have calculated the absurdity test to be the same as calculated by the parties.[7]

The respondent’s submissions

14.  Ms Lily Ho, for the respondent, concedes the Judge had adopted an incorrect methodology when calculating the initial starting point.  However, she submits that there were two aggravating factors that warranted enhancement of the starting point.  First, the involvement of two types of drugs, which allowed the appellant to cater for a wider market.  Secondly, the fact that the appellant was a Form 8 recognizance holder at the time of the offence. 

15.  Consequently, Ms Ho contends that the ultimate sentence of 9 years and 6 months’ imprisonment was therefore appropriate.

Discussion

16.  As already noted, two dangerous drugs were involved in the present case, consisting of 51.70 grammes of cocaine narcotic and 479.26 grammes of ecstasy narcotic.

17.  For comparison purposes, it is useful to set out in full the sentencing guidelines of the two drugs in order to have an overall appreciation of the two sets of guidelines in relation to each other as well as of the relevant bands of the guidelines in relation to the quantity of each drug involved in the present case. 

18.  The sentencing guidelines for trafficking in cocaine in HKSAR v Lau Tak-ming [1990] 2 HKLR 370 (as modified by HKSAR v Abdallah [2009] 2 HKLRD 437) are as follows:

(i)      up to 10 grammes of narcotic: 2 to 5 years’ imprisonment;

(ii)     between 10 grammes and 50 grammes: 5 to 8 years’ imprisonment;

(iii)     between 50 grammes and 200 grammes: 8 to 12 years;

(iv)     between 200 grammes and 400 grammes: 12 to 15 years;

(v)     between 400 grammes and 600 grammes: 15 to 20 years;

(vi)     600 to 1,200 grammes: 20 to 23 years;

(vii)    1,200 to 4,000 grammes: 23 to 26 years;

(viii)    4,000 to 15,000 grammes: 26 to 30 years;

(ix)     over 15,000 grammes: at the sentencer’s discretion.

19.  The sentencing guidelines for trafficking in ecstasy in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 are as follows:

(a)      up to 1 gramme: within the sentencer’s discretion;

(b)     over 1 to 10 grammes: 2 to 4 years’ imprisonment;

(c)     10 to 50 grammes: 4 to 6 years’ imprisonment;

(d)     50 to 300 grammes: 6 to 9 years’ imprisonment;

(e)     300 to 600 grammes: 9 to 12 years’ imprisonment;

(f)     600 to 1,000 grammes: 12 to 14 years’ imprisonment;

(g)     over 1,000 grammes: 14 years upward.

20.  This Court has provided guidance on the sentencing approach that should be taken in relation to an offender for trafficking in two or more dangerous drugs in HKSAR v Yip Wai Yin & Anor,[8] where Ma CJHC (as he then was) stated:

“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 (CACC 564/2002, 23 April 2003, unreported) (CA).

(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 (CACC 539/2002, 22 April 2003, unreported) (CA). 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 [if] 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.”[9]

21.  The Judge in sentencing the appellant for the two different types of drugs involved explained the approach she would take as follows:

“According to the guidelines, as correctly identified by Mr Bullett, the amount of cocaine would normally, following the guidelines in Lau Tak Ming [1990] 2 HKLR 370, would give us a starting point of about 8 years and as far as the ‘Ecstasy’ is concerned, following the guidelines in Hii Siew Cheng [2009] 1 HKLRD 1, the amount there would garner a starting point of about 10 and half years. However, because the two drugs were found together, I intend to adopt the combined approach.

Now, combining the two drugs together would give us 530.96 grammes. If I was following -- combining it under the ‘Ecstasy’ guidelines in Hii Siew Cheng, it would give me a starting point of 11 years and 3 months and if I followed, if I combined it into the cocaine, the starting point would be about 17 and a half years. So in the circumstances that the amount of the ‘Ecstasy’ is much larger than the cocaine, I would therefore follow -- make it all into the ‘Ecstasy’ and then increase it by 2 years for the fact that part of that is for a more serious drug of cocaine, and so the 11 years 3 months plus the 2 years for the fact of cocaine would give us 13 years and 3 months.”[10]

22.  The Judge made it clear that she would adopt the combined approach and implicitly rejected the individual approach in sentencing the appellant.  We are of the view that she was right to do so because the individual approach would require her adding the two starting points of the drugs together and substantially reducing the notional starting point to cater for the obvious oppressive result of 18 years and 9 months’ imprisonment.[11] 

23.  Having opted for the combined approach, the Judge was required to determine which of the two drugs she would use as her base drug.  She chose ecstasy over cocaine.  She seems to have taken this approach because of the significant quantity of ecstasy, representing 90 per cent of the total drugs.

24.  The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious) drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point.[12]  There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug.  As stated, it will be a matter of common sense.

25.  There may also be cases where the sentencing court can combine the quantities of the two different drugs and calculate the starting point according to the sentencing guidelines of the base drug with appropriate adjustment.  However, this will usually occur when the respective sentencing guidelines of the drugs involved are very similar, such as the guidelines for heroin/cocaine and Ice.  In the present case, the sentencing guidelines of cocaine and ecstasy are different and therefore the Judge’s approach of combining the quantities of the two drugs and using the sentencing guidelines of ecstasy with further adjustment for the quantity of cocaine was not appropriate in the circumstances. 

26.  When comparing cocaine and ecstasy, cocaine is the more or most serious drug in terms of potency. Whilst the quantity of cocaine of 51.7 grammes represented only 10 per cent of the total drugs, it is nevertheless significant in terms of its amount and corresponding sentence of 8 years’ imprisonment.  Even though the amount of ecstasy of 479.26 grammes has a corresponding sentence of 10 years and 9 months’ imprisonment.

27.  In our view, the Judge should have employed the following methodology for the combined approach.

(1)     First, determine the base drug to be used to calculate the starting point of the two drugs.  This requires determining which of the two drugs is the “more or most serious drug”, in terms of potency.  In this case, cocaine is the “more or most serious drug”.  Whilst the amount of cocaine of 51.7 grammes represented only 10% of the total drugs, it is still significant in terms of its potency and the sentencing tariff for this quantity.  On this basis, the correct base drug is cocaine.

(2)     Secondly, calculate the starting point according to the quantity of the base drug in accordance with the relevant sentencing guidelines.  According to the sentencing guidelines for 51.7 grammes of cocaine narcotic, the starting point is 8 years’ imprisonment.

(3)     Thirdly, determine by how much this starting point should be increased to allow for the quantity of the other drug.  This is ultimately an exercise of sentencing discretion and should be done by:

(i)     considering the quantity of the other drug and the relevant sentence according to that drug’s sentencing guidelines and by reference to the starting point adopted for the base drug.  Here there is 479.26 grammes of ecstasy narcotic which corresponds to a starting point of 10 years and 9 months’ imprisonment according to the sentencing guidelines for ecstasy;

(ii)    conducting an overall comparison of the sentencing guidelines of the two drugs and their related ranges of sentence;

(iii)   examining the results of the absurdity test, the conversion test and the ratio test.  The absurdity test is 18 years and 3 months’ imprisonment.  The conversion test based on the cocaine sentencing guidelines is 12 years and 1 month’s imprisonment, and on the ecstasy sentencing guidelines is 12 years and 5 months’ imprisonment.  The ratio test is 11 years and 10 months’ imprisonment; and

(iv)   taking all these matters into account to calculate a reasonable and realistic increase to the starting point.  We would increase the starting point of 8 years’ imprisonment by 4 years to 12 years’ imprisonment.

(4)     Fourthly, determine the level of enhancement to the starting point for the aggravating factor that the trafficking involved two or more serious dangerous drugs.[13] We would enhance the starting point by 3 months to 12 years and 3 months’ imprisonment.

(5)     Fifthly, determine the level of enhancement to the starting point for any other aggravating factor or factors.  The appellant was a Form 8 recognizance holder at the time of the offence and the Judge correctly determined that the sentence should be enhanced by one year, and we will do the same.[14] This will result in a notional starting point of 13 years and 3 months’ imprisonment.

(6)     Sixthly, take into account any mitigating factors and make appropriate adjustments to the notional starting point.  The appellant pleaded guilty at the earliest opportunity and was entitled to a one third discount of his sentence, resulting in a final sentence of 8 years and 10 months’ imprisonment.  There were no other mitigating factors.

(7)     Finally, apply the totality principle to ensure that the overall sentence is not unfairly or unjustly crushing or oppressive.

28.  By this method, we arrive at a sentence of 8 years and 10 months’ imprisonment.

29.  We observe that this sentencing approach is essentially conducted by an arithmetic calculation but of course it is subject to the discretion of the sentencing court when determining starting points, making adjustments for aggravating or mitigating factors, and assessing the overall sentence.

Conclusion

30.  For the reasons we have given, we allow the appeal, set aside the sentence of 9 years and 6 months’ imprisonment, and substitute it with a sentence of 8 years and 10 months’ imprisonment.