HKSAR v. CHOW YAU CHING

[ENGLISH TRANSLATION – 英譯本]

CACC 517/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 517 OF 2012

(ON APPEAL FROM HCCC NO. 357 OF 2012)

________________

__________________________

REASONS FOR JUDGMENT

__________________________

Hon Barnes J (giving the reasons for judgment of the Court):

Background

1.  The Applicant was charged with two offences involving a dangerous drug: Charge 1 was possession of 1.72 g of a powder containing 1.49 g of ketamine, and Charge 2 was trafficking in 3.36 kg (i.e. 3,360 g) of a powder containing 2.89 kg (i.e. 2,890 g) of ketamine.

2.  The Applicant pleaded guilty to both charges before a magistrate and was committed to the Court of First Instance for sentence. The case was dealt with by Deputy High Court Judge Joseph Yau (“the Judge”). The Judge adopted 9 months’ imprisonment and 19 years and 9 months’ imprisonment as the starting points for Charges 1 and 2 respectively. On account of the Applicant’s guilty pleas, the two terms of imprisonment were reduced by one-third, to 6 months and 13 years and 2 months respectively. The Judge also ordered that 2 months of the sentence for Charge 1 was to run consecutively tothe sentence for Charge 2, making a total term of 13 years and 4 months.

3.  The Applicant applied for leave to appeal sentence.

4.  At the conclusion of the hearing, we allowed the application and, treating the application as the appeal proper, we allowed the appeal to the extent that the sentences for Charges 1 and 2, while remaining unchanged individually, were to run concurrently, thereby reducing the total term of imprisonment to 13 years and 2 months. Our reasons for judgment are set out below.

Prosecution case

5.  On 17 May 2012, a team of police officers who laid in ambush near Wai On Building, Wai Yan Street, Tai Po, saw the Applicant enter Wai On Building. Five minutes later, the Applicant left Wai On Building and was intercepted by the police outside Fuk Wah Building on Kwong Fuk Road. From a sling bag carried by the Applicant, the police found one folded 20-dollar banknote which held a powder weighing 1.72 g. Under caution, the Applicant remained silent (Charge 1).

6.  Thereafter, the police searched the Applicant’s residence on the 5th floor of Wai On Building, where one electronic scale, one pair of scissors and 14 tinfoil packets, which contained a powder with a total weight of 3,360 g and containing 2,890 g of ketamine, were found. Under caution, the Applicant admitted that the powder was ketamine (Charge 2).

7.  The street value of the ketamine involved was approximately HK$400,000.

Background of the Applicant

8.  At the material time, the Applicant was 27 years old and had received education up to Form 2. He was married but he and his wife subsequently separated. He worked on a casual basis and earned about $9,000 per month. He had four conviction records, one of which was for trafficking in a dangerous drug for which he was sentenced to the training centre.

9.  By way of mitigation, it was submitted that the Applicant was heavily in debt by reason of gambling and the need to pay for his late grandmother’s burial expenses. He was used by others to traffic in dangerous drugs, with a reward of $1,000 each time. It was the second time he trafficked in dangerous drugs for others when he was arrested. He said that he felt remorseful after his arrest, and he cooperated with the police and frankly admitted the offences. His former employer also asked for clemency on his behalf.

Ground of appeal

10.  The ground of appeal advanced by Ms Cecilica To, Counsel for the Applicant was that the starting point for Charge 2 was too high, with the starting point of 19 years and 9 months’ imprisonment being manifestly excessive.

Discussion

11.  The Applicant’s main argument was directed at HKSAR v Sin Chung Kin and another [2013] 1 HKLRD 622, a case on which the Judge relied in sentencing. In that case, the comment made by the Court of Appeal that the starting points for trafficking in 2,000 g to (sic) 3,000 g of ketamine should not be lower than imprisonment for 18 years and 20 years was mere obiter and did not constitute any sentencing guideline.

12.  The Applicant contended that Sin Chung Kin involved 5,120 g of ketamine, which was far more than the 2,890 g involved in the present case, but the Court of Appeal in that case did not interfere with the 22 years’ imprisonment imposed by the trial judge. The Applicant complained that, given the substantial difference between the quantity of drugs involved in Sin Chung Kin and that in the present case, the term of 19 years and 9 months imposed on the Applicant, which was merely 2 years and 3 months less than the term of 22 years in Sin Chung Kin, was unreasonable.

13.  The Applicant also referred to a few High Court cases in support of his contention that the starting point adopted in the present case was at variance with other similar cases. It was argued that according to the principle laid down in HKSAR v Leung Wai Man (unreported, CACC 24/2007, 7December 2009), there should be consistency in sentences imposed in cases of the same type.                

14.  In Sin Chung Kin, two defendants admitted to trafficking in ketamine and cocaine of total quantities of 5.12 kg and 18.8 g respectively. The two of them were also involved in the possession of cocaine. For trafficking in such a large quantity of ketamine, Yeung CJHC (Ag) (as he then was) had the following to say in his Reasons for Judgment:

“21. Ketamine is highly toxic and extremely hazardous to the human body. Since 2005 there has been a sharp increase in the quantities of ketamine seized by the police, and ketamine has become the most widely abused drug among youngsters aged below 21. In S for J v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal, having received relevant expert evidence, acknowledged the above situation and, on that basis, went on to revise the sentencing guidelines for trafficking in ketamine.

22. The revised guidelines are as follows:

(1) Up to 1 g:	within the court’s discretion
(2) Over 1 g to 10 g:	2-4 years
(3) 10 g to 50 g:	4-6 years
(4) 50 g to 300 g:	6-9 years
(5) 300 g to 600 g:	9-12 years
(6) 600 g to 1,000 g:	12-14 years
(7) over 1,000 g:	14 years upwards

23. Where large quantities of ketamine are involved, although it is not possible to enhance the starting points proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.

24. The starting points for trafficking in dangerous drugs are determined according to the quantities of the drugs involved. For trafficking in large quantities of dangerous drugs, the “tariffs” laid down by the Court of Appeal have never exceeded 20 years’ imprisonment. In the case of trafficking in heroin, 400 g attracts 15 years’ imprisonment and 600 g 20 years’ imprisonment (see R v Lau Tak-ming & Others [1990] 2 HKLR 370). In the case of trafficking in “ice”, a quantity between 300 g and 600 g attracts 14 to 18 years’ imprisonment (see AG v Ching Kwok-hung [1991] 2 HKLR 125). According to these authorities, when the quantity of the heroin in question is increased by 50% from 400 g to 600 g, the starting point will increase from 15 years to 20 years; and when the “ice” in question is doubled from 300 g to 600 g, the starting point will go up from 14 years to 18 years.

25. The maximum sentence for trafficking in a dangerous drug is life imprisonment. When the quantity of the heroin or “ice” involved is so large that it is measured by the kilogramme, the starting point may well go far beyond 20 years and may even reach 30 years or more.”

15.  The Court of Appeal did not revise the sentencing guidelines in Sin Chung Kin. It was only because of the lack of further elaboration in Hii Siew Cheng on the appropriate starting point for trafficking in over 1,000 g of ketamine that the Court of Appeal, having considered the rates of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and “ice”), made the observation that the appropriate starting points for trafficking in 2,000 g and 3,000 g of ketamine should, respectively, be no less than 18 years and 20 years.    

16.  The above analysis is, with respect, correct.

17.  Furthermore, in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, when revising the appropriate sentencing guidelines for trafficking in large quantities of heroin, the Court of Appeal said:  

“36. In a submission with which we agree, Mr Zervos stated that it was important, at this level of trafficking, that there should be a meaningful distinction between traffickers who deal in 600 grammes of heroin and those who are caught trafficking in twice that quantity. Equally, a distinction needs to be drawn between those whose offences are aggravated for the purposes of sentence by other factors which call for an enhancement of sentence and those who have no aggravating circumstances to be taken into account against them.”

The Court of Appeal took the view that when heroin traffickers were to be sentenced, there should be a meaningful distinction between the sentence for trafficking in only 600 g of heroin and that for trafficking in twice that quantity. A distinction should also be drawn between the sentence where there were aggravating factors and the sentence where no aggravating factors were present.

18.  In our view, the above principles are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.

19.  The Applicant cited a number of High Court sentencing cases. Although the sentences in some of those cases were imposed after Sin Chung Kin, none of the judges in those cases referred to Sin Chung Kin and it seems that they were not aware of the judgment in Sin Chung Kin at the time. On the other hand, the “meaningful distinction” as stated in Abbas is not reflected in the sentences imposed in the following cases:     

(1) HKSAR v Chan Hon Lun (HCCC 13/2012) - for 2,670 g of ketamine, the starting point was 15 years;

(2) HKSAR v Chan Peng Chun (HCCC 420/2011) - for 2,970.95 g of ketamine, the starting point was 16 years which was enhanced to 16½ years by reason of the defendant’s previous conviction record;

(3) HKSAR v Yeung Tak Lung (HCCC 227/2012) - for 4,690 g of ketamine, the starting point was 16 years; and

(4) HKSAR v Ma Chi Hong (HCCC 1/2012) - for 6,160 g of ketamine, the starting point was 16 years.

20.  The Applicant also cited the sentences imposed in two other High Court cases, which are more severe than those imposed in the above 4 cases. Although it can be said that there is a meaningful distinction between those starting points and that for trafficking in 1,000 g of ketamine, those two cases were determined before Sin Chung Kin and the judges dealing with those two cases did not have the opportunity to consider the reasoning of the court in Sin Chung Kin:

(1) HKSAR v So Lok Him (HCCC 109/2011) - for 3,250 g of ketamine, the starting point was 18 years; and

(2) HKSAR v Lee Chun Hung (HCCC 237/2011) - for 4,808.74 g of ketamine, the starting point was 19 years.

21.  It is true that in HKSAR v Ng Siu Kam (unreported, CACC 474/2009, 2 September 2011), another case relied on by the Applicant, where the defendant conspired to traffic in 5,000 to 5,500 g of ketamine, the Court of Appeal considered a starting point of 16 years appropriate and, taking into account aggravating factors, eventually adopted 20 years’ imprisonment as the starting point. However, as the Court of Appeal pointed out in Sin Chung Kin:

“26. … Ng Siu Kam concerned the offence of conspiracy to traffic in a dangerous drug and the quantity of the drug involved was merely an estimate. Furthermore, in that case the Court of Appeal did not explain clearly the rationale for passing the sentence that it did. Therefore, the case offers limited guidance.”

22.  As Sin Chung Kin did not lay down any sentencing guideline but instead analysed and considered in detail the appropriate starting points, it was certainly open to the Judge to consider the reasoning in Sin Chung Kin even though the Applicant’s case arose before the Reasons for Judgment of Sin Chung Kin was handed down. Furthermore, even if the Court of Appeal had laid down sentencing guidelines which had no retrospective effect, the court would still be entitled to refer to those guidelines for the purpose of making a comparison (see HKSAR v Mohamed Omar Ally (unreported, CACC 407/2008, 23 June 2009, para. 13) and HKSAR v Chan On Ming (unreported, CACC 44/2009, 31 August 2010, para. 20).

23.  The fact that individual defendants have been dealt with leniently by the court does not mean that the starting point of 19 years and 9 months imposed on the Applicant in the present case must necessarily be manifestly excessive. What we have to determine is whether, in light of the circumstances of the case and the Applicant’s background, the starting point is manifestly on the high side.     

24.  After consideration, we have taken the view that the starting point of 19 years and 9 months adopted by the Judge is neither wrong in principle nor manifestly excessive.   

25.  In respect of Charge 1, namely possession of 1.49 g of ketamine, the Judge adopted 9 months’ imprisonment as the starting point and imposed a sentence of 6 months’ imprisonment after giving the one-third discount for the Applicant’s guilty plea. There is nothing improper with this sentence, with which the Applicant has in fact not taken issue. However, in our judgment, had Charge 1 also been for trafficking in a dangerous drug, the drugs involved in the two charges would, on the facts of the present case, have been considered together, and the appropriate starting point for trafficking in 2,891.49 g of ketamine would still have been 19 years and 9 months. This being the case, although trafficking in a dangerous drug and possession of a dangerous drug are different in nature and generally their sentences should not be made entirely concurrent, we have, on the facts of the present case, taken the view that the whole term of 6 months in respect of Charge 1 should run concurrently with the 13 years and 2 months in respect of Charge 2, making a total term of 13 years and 2 months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.