SECRETARY FOR JUSTICE v. NG WING YI

CAAR 4/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2013

(ON APPEAL FROM HCCC NO. 389 OF 2012)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

INTRODUCTION

1.  By leave of the Chief Judge dated 6 September 2013, this is an application for review of sentence under section 81A of the Criminal Procedure Ordinance, Cap. 221.

2.  The respondent is aged 28 years.  She faced trial before Deputy Judge Geiser and a jury upon an indictment which alleged that on 29 June 2012 outside the ground floor of the apartment block in which she lived in Tsing Yi, she trafficked in 0.24 kg of a powder containing 0.20 kg of ketamine.

3.  By its verdict on 24 July 2013, the jury acquitted the respondent of trafficking but upon her own plea of guilty to possession of the drugs in question, returned a verdict of guilty of possession of that quantity of the drug.

4.  The judge adjourned for a probation officer’s report and a Drug Addiction Treatment Centre Suitability Report.  On 15 August 2013 he sentenced the respondent to detention in a Drug Addiction Treatment Centre.  It is that sentence which is the subject of this application, a sentence which is said to be manifestly inadequate and/or wrong in principle.

The evidence

5.  At about 6:50 pm on 29 June 2012 the respondent was intercepted by the police close to the entrance of the residential block where she lived, apparently returning there.  In the handbag she was carrying was a plastic bag containing the ketamine in question.  She told police that she had purchased the drugs for her own consumption.  Also in her handbag were four mobile telephones and $670 in cash.

6.  Her bedroom was searched and the police there found 376 resealable plastic bags but there were no measuring scales or other drug trafficking paraphernalia found in the premises.

7.  The evidence was that the average retail price for the powder in her possession was HK$27,600; and that the normal daily dosage for an addict was between 1 to 2 grammes of ketamine although there have been reported cases of abusers taking as much as 6 grammes per day.  Some addicts will buy in bulk to receive a discount but, according to this testimony, experience suggests that addicts usually buy in quantities sufficient for one to two days consumption.

8.  At her trial, the respondent did not testify but her mother did, saying that the respondent lived at home with the respondent’s parents, her younger sister and younger brother and worked part-time in a mobile telephone accessory shop earning between $7,000 and $8,000 a month with occasional handouts of a few thousand dollars from her father.  According to the mother, the respondent had been taking ketamine as well as other drugs for several years.  No action had been taken by the family to cause the addiction to be treated.  The plastic bags found in the respondent’s room were, she said, purchased by her, that is, her mother to enable the respondent to place lighters, ornaments, cosmetics and medicine in them.

The Report

9.  According to the Drug Addiction Treatment Centre Suitability Report, the respondent had started sniffing ketamine in 2001 and taking some other drugs since.  After her arrest in June 2012, she was remanded in custody but upon her release resumed taking drugs.  During her interview the respondent said that a friend who was an addict had asked her to help to bring the seized drugs.  Quite what this meant is difficult for us now to say.  It rather undermines the contention that the drugs were all for her own use but, nonetheless, there is not for present sentencing purposes to be attributed to the respondent an intention to traffic in the drugs.

10.  The background to her drug-taking habit appears to be the poor company into which she fell as well as an unhappy relationship with a previous boyfriend.

Sentencing

11.  In sentencing the respondent, the judge expressed scepticism at the contention that the large amount of ketamine found in her possession was for her personal consumption.  That said, he was satisfied that the respondent was drug dependent and suitable for treatment in a Drug Addiction Treatment Centre and considered it appropriate to make a Drug Addiction Treatment Centre order.

Analysis

12.  The applicant contends that the sentence imposed failed sufficiently to reflect the gravity of the offence; failed to have proper or indeed any regard to the need for deterrence; failed to recognise the significant risk of onward dissemination of the drugs, a matter not mentioned by the judge; and that in all the circumstances the sentence fell outside the range of sentences which the judge applying his mind to all relevant factors could reasonably consider appropriate.

13.  We agree with that contention.

14.  The maximum penalty for the offence of possession of a dangerous drug was substantially increased in 1992 from a fine of $10,000 and imprisonment for three years to a fine of $1 million and imprisonment for seven years.  That in itself does not dictate that a sentence of imprisonment for possession of dangerous drugs is inevitable regardless of the quantity of the drug possessed and the circumstances of the offence and the offender.  Obviously there are cases where a Drug Addiction Treatment Centre order is the appropriate sentence.  But it is most difficult indeed to envisage a case where such an order could be justified in the face of possession of as much a quantity of 200 grammes of ketamine, given most particularly the high actual risk of dissemination that possession of such a quantity normally entails.  There was nothing in this particular case to detract from the conclusion which ought to have been drawn that the risk was high indeed, given that the respondent was a hardened addict, earning a very modest monthly salary.  The risk in this case was of sale to fund further purchases and, quite separately, the risk of distribution to friends and, further still, the possible temptation placed in the path of the respondent’s younger siblings living in the same premises.

15.  The increase in the maximum sentence in 1992 was an indication by the legislature to the courts that a more serious view than hitherto was to be taken of the offence possession of dangerous drugs (see Attorney General v Chan Ching Ho [1994] 2 HKC 457); and in R v Chiu Hung Wong and another [1994] 1 HKCLR 184, Silke VP said at 188 that:

“… it is now clear that the legislative temper is for very much stiffer penalties and the incarceration of those in possession of dangerous drugs for a much longer period than that earlier sentencing norm and the emphasis has moved away from the prior aim of rehabilitation, though the latter option is not removed ...”

16.  Sentencing guidelines for simple possession of dangerous drugs tend to suggest ranges for quantities which a bona fide user will normally have in his possession, a phrase we borrow from HKSAR  v Chan Yat Sing CACC 777 of 1997, unreported 24 March 1998.  In the case of drugs such as ice and heroin this tends to be in a range of 12 to 18 months; and we will shortly examine the sentences which some of the ketamine possession cases have drawn.

17.  For trafficking in ketamine, the guidelines have been set by the decision in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, a case which recognises the prevalence of abuse of the drug and in particular its targeting at the young. It is a dangerous and addictive drug.  Those guidelines for sentence after trial for traffickers in Ketamine are:

“(a) Up to 1 g – within the sentencer’s discretion;

(b) Over 1 g to 10 g – 2 to 4 years’ imprisonment;

(c) 10 to 50 g – 4 to 6 years’ imprisonment;

(d) 50 to 300 g – 6 to 9 years’ imprisonment;

(e) 300 to 600 g – 9 to 12 years’ imprisonment;

(f) 600 to 1,000 g – 12 to 14 years’ imprisonment; and

(g) Over 1,000 g – 14 years upwards.”

18.  Those guidelines do not in themselves dictate a mathematical calibration downwards for possession simpliciter but they illustrate the seriousness with which the drug is now treated; a recognition, as the judgment says in terms, of the prevalence of the drug and of its dangers to the consumer.

19.  In HKSAR v Yuen Yat Hung CACC 59 of 2009, unreported, 24 June 2009, the applicant pleaded guilty to possession of 27.15 grammes of powder containing 22.88 grammes of ketamine, at a cost to the consumer of $1,400.  At the time of sentence, the applicant was serving a sentence of 12 months’ imprisonment in relation to another dangerous drugs case and had been convicted in the past of other criminal offences.  Apparently, he was not a drug dependent so there was no question of a drug addiction treatment centre order.  In addressing the appeal against sentence in that case, Tang VP (as he then was) said that:

“16. Although no sentencing guidelines have been laid down by the Court of Appeal for possession of ketamine, we agree that ketamine has been a widely abused drug amongst young people in recent years and a stricter approach is needed to achieve a deterrent effect in dealing with this kind of offence.”

20.  The Court was of the opinion that the appropriate starting point for possession of 22.88 grammes of ketamine should be 16 months’ imprisonment enhanced to 24 months to reflect the aggravating risk of dissemination factor.  Given the plea of guilty, the sentence was reduced to one of 16 months’ imprisonment.

21.  In HKSAR v Ho Ka Kei CACC 378 of 2009, unreported, 27 July 2010, the Court accorded 18 months’ imprisonment as a suitable after trial starting point for possession of 20.42 grammes of ketamine and added to that 6 months to reflect the risk of dissemination factor; and then reduced that by one-third to give credit for the plea of guilty.

22.  If sentences in the region of, say, 24 months’ imprisonment after trial are appropriate for possession of quantities in the range of 20 grammes of ketamine, taking into account the risk of dissemination factor, possession of as much as 200 grammes of ketamine, with a significant dissemination risk, suggests, save in the most extraordinary circumstances, the imposition of a much larger sentence than that.

23.  In HKSAR v Chong Heung Sang [2010] 3 HKC 88, the applicant pleaded guilty to trafficking in fractionally over 200 grammes of ketamine which he said was for his own consumption, the trafficking constituted by the fact that it was imported into Hong Kong through the Lok Ma Chau crossing.  The drugs had a retail value in Hong Kong of $31,818.  The appeal was against a sentence of six years’ imprisonment, the judge having adopted the starting point of nine years’ imprisonment.  The Court was of the opinion that the applicant was to be sentenced on the basis that the drugs were partly purchased for his own consumption, partly for conventional trafficking and partly to share with his friends and that the appropriate starting point before the one-third discount for a plea of guilty was eight years’ imprisonment.  The point of the judgment for present purposes are the remarks made by Tang VP (as he then was) at para 21 that:

“ ... for ‘Possession of dangerous drug otherwise than for trafficking and consumption of dangerous drug’, the maximum sentence on conviction on indictment is imprisonment for 7 years. The amount of drugs involved in this case, had it been a case of simple possession, would have warranted a very heavy sentence if not the maximum of 7 years. Indeed, it is hardly conceivable that a person would be convicted of simple possession if he was in possession ... of a very substantial amount of dangerous drug.”

24.  We agree that it is going to be an unusual case that results in a conviction for simple possession of dangerous drugs where the quantity of ketamine possessed is as much as in that case and in this.  That said, where there is such an instance, the maximum will be reserved for the worst category of case, a categorisation unlikely to be justified in the case of a first offender and in any event a term of 7 years’ imprisonment for possession of 200 grammes of the drugs is close to the term warranted after trial for trafficking in that amount, a result that is unlikely to be justifiable.

25.  One is bound to sentence on the basis that all the ketamine in question was possessed by the respondent for her own consumption over a period of months.  In terms of quantity, the quantity possessed by this applicant was substantially more than the quantity a user would normally have and we are therefore looking at possession of drugs that will last the possessor many months.  Indeed, according to her own comments to the Drug Addiction Treatment Centre interviewer, she only took ketamine occasionally.

26.  Accordingly, we consider that a suitable starting point after trial for this quantity of the drug in the possession of this first offender, aged 28 years at the time of the offence and with difficult emotional problems, is 2½ years’ imprisonment; but the dissemination risk factor is very substantial.  The respondent earned little each month, was highly addicted, and the risk of sale to feed that addiction must be deemed to have been considerable.  Furthermore, the temptation to pass some of this hoard to friends is to be taken as real; and the presence of these drugs in a flat shared with two younger siblings places them in harm’s way; and the very nature of this drug renders it notoriously liable to dissemination.  The risk factor requires a substantial enhancement of that starting point to one of 4½ years’ imprisonment.  The respondent offered to plead guilty to simple possession at the outset for which reason, in accordance with current principle, a reduction of 18 months is warranted, arriving at a sentence of 3 years’ imprisonment.  That is the sentence which ought to have been imposed.

27.  We can well understand the judge’s motivation in taking a different course to this extent, that he thought the best interests of the respondent were served by an attempt to cure her of her addiction.  But given the nature and the unusual quantity of the drug involved, by taking the course which he did, the judge accorded no weight to the question of general deterrence and none to the very substantial and obvious risk in this case of dissemination of the drug to others.  Indeed he did not mention it.  For those reasons, he erred in principle and passed a sentence which fell outside the range of sentences which applying his mind to all the relevant factors a judge could reasonably consider appropriate.

28.  Two factors dictate that the sentence which we should now substitute must be less than the 3 years we have said should have been imposed:

(1) The principle that “Where a defendant has had no responsibility for the fact that he has been given a sentence which is unduly lenient, ... it accords with justice that, when substituting a weightier sentence, this Court should have some regard to the distress and anxiety experienced by the defendant as a consequence of having his sentence reopened and increased”: Lord Phillips in A-G’s Reference (Nos. 14 and 15 of 2006):

“Where a defendant has had no responsibility for the fact that he has been given a sentence which is unduly lenient, we consider that it accords with justice that, when substituting a weightier sentence, this court should have some regard to the distress and anxiety experienced by the defendant as a consequence of having his sentence reopened and increased.”

cited by this Court in HKSAR v Ng Chun To Raymond and another CACC 178 of 2010, unreported 31 July 2013; and

(2) the fact that the respondent has served three months to date in a drug addiction treatment centre.

29.  Taking those two factors into account, we shall substitute a sentence of 2½ years’ imprisonment.

Conclusion

30.  Accordingly, the application for review is granted, the sentence imposed by the Deputy Judge is set aside and we substitute a sentence of 2½ years’ imprisonment.