HKSAR v. KWONG CHUN HUNG

CACC 273/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273 OF 2013

(ON APPEAL FROM HCCC 206 OF 2013)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.  The applicant seeks leave to appeal against the sentences of 7 years and 6 months’ imprisonment and 16 months’ imprisonment imposed upon her by Deputy High Court Judge Geiser on 30 July 2013 for offences of unlawfully trafficking in 97.16 grammes of methamphetamine hydrochloride (Charge 1) and possession of 2.10 grammes of methamphetamine hydrochloride (Charge 2), contrary to section 4(1)(a) and (3) and section 8(1)(a) and (2) respectively of the Dangerous Drugs Ordinance, Cap. 134.

2.  Having pleaded guilty to the offences in Eastern Magistracy on 16 May 2013, the applicant was committed for sentence in the High Court.

THE FACTS

3.  On 28 January 2013, the applicant was intercepted at the Customs clearance area of the Lok Ma Chau Control Point.  A search of her person revealed a plastic bag, which was found to contain the dangerous drugs the subject of Charge 1, concealed inside her underpants.  Initially, after arrest and caution the applicant admitted that the substance was ‘ice’ but contended that it was for her own use.  Subsequently, she admitted that she had carried the ‘ice’ for someone else for a reward of $2,000.  On being taken to her home in Sau Mau Ping Estate the applicant pointed out the whereabouts of the small amount of ‘ice’ the subject of Charge 2.

Reasons for sentence

4.  In his reasons for sentence the judge noted that the applicant was a 29-year-old single mother, with two young children, who had agreed to carry the dangerous drugs across the border into Hong Kong for $2,000 and that she explained that she had done so in order to obtain extra money in advance of the approaching Lunar New Year.  However, he said that the greatest factor of mitigation available to the applicant was her plea of guilty.

Starting point for sentence

5.  Having adverted to the guidelines articulated by this Court in its judgment in the Attorney General v Ching Kwok Hung [1] for unlawfully trafficking in methamphetamine hydrochloride, the judge noted that for quantities in the range of 70 to 300 grammes the range of sentence was stipulated to be 10 to 14 years’ imprisonment.  He stipulated a starting point for sentence in respect of Charge 1 of 10½ years’ imprisonment.  Stating that bringing the dangerous drugs into Hong Kong from the Mainland was an aggravating feature involving an international element, the judge enhanced the starting point by 9 months’ imprisonment to 11 years and 3 months’ imprisonment.

6.  The judge stipulated a starting point for sentence in respect of Charge 2 of 24 months’ imprisonment.

Discount

7.  Then, to reflect her pleas of guilty, the judge afforded the applicant a discount of one third from the starting points for sentence that he had identified.

Sentence

8.  In the result, the judge sentenced the applicant to 7½ years’ imprisonment in respect of Charge 1 and 16 months’ imprisonment and in respect of Charge 2, ordering that the sentences be served concurrently.  Accordingly, the total sentence imposed upon the applicant was 7½ years’ imprisonment.

GROUNDS OF APPEAL AGAINST SENTENCE

9.  In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Philip Ross submitted that the sentences imposed on the applicant in respect of each of the charges were manifestly excessive.  First, having regard to the amount of the methamphetamine hydrochloride brought into Hong Kong by the applicant, the judge erred in enhancing sentence in respect of Charge 1 by 9 months’ imprisonment.  Secondly, the judge had erred in stipulating a starting point for sentence in respect of Charge 2 of 24 months’ imprisonment.  He submitted that the starting point for simple possession of dangerous drugs by a bona fide user was in the range of 12 to 18 months’ imprisonment.[2]

A CONSIDERATION OF THE SUBMISSIONS

Charge 1 : enhancement of sentence

10.  As the court noted in its judgment in HKSAR v Abdallah [3], “it has long been accepted that the international element in trafficking…is to be regarded as a factor in material aggravation of the offence for sentencing purposes…” In Abdallah, the court was concerned with the importation into Hong Kong of 1,218.86 grammes of heroin.  It provided graduated guidelines for sentences in cases of unlawful trafficking in heroin for specific ranges in amounts of heroin beyond that set out in the guidelines of this Court in R v Lau Tak Ming [4]. In doing so, the court identified four aggravating factors which called for an enhancement of the starting point to be taken for sentence, including the fact of the involvement of an international element in the commission of the offence.[5]  It was in that context that the court said, “We do not envisage that the enhancement, for any other reasons we have itemised, for amounts above 1 kg will be less than 2 years’ imprisonment…”.

11.  Of course, as Mr Ross pointed out in his written submissions, the guidelines given for sentencing in respect of unlawfully trafficking in heroin, which are applicable to cocaine, are different from the guidelines for sentence articulated in the judgment of this court in Ching Kwok Hung in respect of unlawfully trafficking in methamphetamine hydrochloride.  The 97.16 grammes of methamphetamine hydrochloride in which the applicant trafficked unlawfully falls within the band of 70 to 300 grammes, for which the range of sentence is stipulated to be 10 to 14 years’ imprisonment.  Whereas, for unlawfully trafficking in that amount of heroin the relevant band is 50 to 200 grammes for which the range of sentence is stipulated to be 8 to 12 years’ imprisonment.  Thus, for the same weight of the dangerous drug the guidelines provide for slightly higher sentences for heroin than methamphetamine hydrochloride.

12.   The amount of the dangerous drug unlawfully trafficked by way of importation or exportation into/out of Hong Kong is obviously a relevant factor to the determination of the appropriate enhancement of sentence to be imposed for that international element. 

13.  Another factor relevant to enhancement of sentence, identified as one of the four factors of aggravation in the commission of the offence in Abdallah, is whether the defendant has a previous conviction (s) for unlawfully trafficking in dangerous drugs.  In the case of the applicant, there is no dispute that not only had she no such previous conviction but also she had no previous criminal convictions.

14.  As Mr Ross pointed out in his written submissions, in HKSAR v Chan Wai Ming  William [6], this court was concerned with an application for leave to appeal by an applicant who had unlawfully trafficked by importation into Hong Kong in 116.52 grammes of methamphetamine hydrochloride.  Like the applicant, he had been detained at Lok Ma Chau Control Point as he entered Hong Kong.  In sentencing the applicant Deputy High Court Judge Wright enhanced sentence by 6 months’ imprisonment to reflect the international element in the commission of the offence.  It is to be noted that the applicant in that case had a previous conviction in the High Court for unlawfully trafficking in dangerous drugs.

15.  Although the gravamen of the argument before this court in that case was in respect of the reduced discount afforded to the applicant for his late plea of guilty, after a voir dire had been contested unsuccessfully, this court determined that the sentence of 9 years and 3 months’ imprisonment imposed on that applicant was not manifestly excessive, making no observation in respect of the enhancement of sentence by 6 months’ imprisonment for the international element.

16.  In supporting the submissions that the judge’s enhancement of sentence to reflect the international element and the actual sentence imposed on the applicant in Charge 1 was not excessive, counsel for the respondent, Ms Samantha Chiu, drew the attention of the court to the judgment of this court in HKSAR v Lam Ming Wai [7]. There, this court dismissed the applicant’s appeal against sentence of 8 years’ imprisonment imposed upon him following his plea of guilty to a charge of unlawfully trafficking in 92.12 grammes of methamphetamine hydrochloride and 964.06 grammes of N, N-dimethylamphetamine at Hong Kong International Airport, which dangerous drugs were strapped to his body and which he was taking to New Zealand.  N, N-dimethylamphetamine is itself a proscribed dangerous drug.

17.  In sentencing the defendant, Deputy Judge  D Pang, as he was then, stated that he had regard to the quantity of methamphetamine hydrochloride as the basis for sentence, adjusting the sentence to take into account the overall quantity of dangerous drugs.  It is not apparent from the judgment how that adjustment was made or what enhancement of sentence was made to reflect the international element in the commission of the offence.  The judge stipulated a starting point for sentence of 12 years’ imprisonment, which this court determined not to be manifestly excessive.

18.  At the request of the court, the respondent provided a translation of Deputy High Court Judge D Pang’s reasons for sentence in the case.[8]  In the course of sentencing the judge said:

“ .. the main purpose of N, N-DMA is basically for dilution. In plain and simple language, it is there to increase the quantity of drugs in order to maximise profit. And therefore when I consider the starting point, I will use the net quantity of ‘ice’ as the basis and make adjustments to take account of the overall quantity of drugs. As lenient as it can be, one cannot escape the fact that N, N-dma is a dangerous drug itself, in addition this case had an international element the sentence must reflect accordingly.”

19.  It is to be noted that no reference was made in the judgment of the court, delivered in December 2010, to the earlier judgment of this court in HKSAR v Ngan Ka Chun [9] in which this Court provided guidelines for unlawfully trafficking in N, N-dimethylamphetamine, referred to by the acronym NNDMA.  In the judgment of this court Yeung JA, as he was then, said, “…we are of the view that the starting point for sentence for the trafficking of NNDMA should be 60% of that for trafficking in the same quantity of ‘ice’.” [10]  That judgment was handed down in October 2009, whereas the judge had sentenced the defendant in April 2009, 6 months earlier.

20.  In the case of this applicant, the judge gave no explanation at all in his reasons for verdict of how it was that he arrived at an enhancement of sentence of 9 months’ imprisonment.  We are satisfied that, given the amount of the methamphetamine hydrochloride that the applicant brought into Hong Kong, the enhancement was manifestly excessive.  In our judgment, an enhancement of sentence of 6 months’ imprisonment was the appropriate level of enhancement.

Charge 2

21.  As noted earlier, in stipulating a starting point for sentence in respect of Charge 2 of 24 months’ imprisonment, the judge gave no indication as to how he had determined that to be the appropriate starting point.  There is no dispute that in the course of mitigation counsel for the applicant submitted to the judge that the appropriate starting point for possession of 2.05 grammes of methamphetamine hydrochloride fell in the range of 12 to 18 months’ imprisonment.  In doing so, he drew the judge’s attention to the judgment of this Court in Mok Cho Tik. In that case, the applicant had been found guilty after trial of a charge of possession of 15.724 grammes of methamphetamine hydrochloride.  At issue in particular, was the enhancement of sentence to reflect the latent risk factor that the applicant would not consume all of the dangerous drugs but that some of them would fall into the hands of others for their consumption.

22.  In the judgment of the court, Stock JA, as he was then, addressed the issue of the appropriate starting point for sentence after trial, “for possession of a quantity which a user would normally have in his possession; a quantity which was not such as to call for enhancement for the latent risk factor”.[11]  He went on to note that this Court had addressed that issue in the judgment delivered by Power VP in HKSAR v Chan Yat Sing [12]:

“ The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs which a bone fide user would normally have in his possession. That would be a year to 18 months. That sentence and has to be enhanced because of the latent risk factor.”

23.   Nowhere in his reasons for sentence did the judge advert to a consideration of any latent risk in respect of the methamphetamine hydrochloride the subject of Charge 2.  No doubt, that is because, having regard to the small quantity of the dangerous drugs, that was not a live issue. 

24.  We are satisfied that Ms Chiu’s cautious concession in her written submissions that the sentence imposed upon the applicant in respect of Charge 2, “might be on the high side”, fortified by her acceptance in her oral submissions that it was “wrong”, was appropriately made.  In our judgment, the judge erred in stipulating a starting point for sentence of 24 months’ imprisonment.  In all the circumstances, the appropriate starting point for sentence was 15 months’ imprisonment.

Conclusion

25.  In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allow the appeal to the following extent.  We quash the sentence of 7½ years’ imprisonment imposed in respect of charge 1 and in its place impose a sentence of 7 years and 4 months’ imprisonment.  We quash the sentence of 16 months’ imprisonment imposed in respect of Charge 2 and in its place impose a sentence of 10 months’ imprisonment.  The order that those sentences be served concurrently is undisturbed.  Accordingly, the total sentence imposed on the applicant is 7 years and 4 months’ imprisonment.