HKSAR v. WONG KWOK HUNG

CACC 225/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2002

(ON APPEAL FROM DCCC NO.108 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. : (giving the judgment of the court)

The appeal

1. The applicant was jointly charged with another defendant for the offence of trafficking in dangerous drugs, namely, three tablets containing a total of 0.27 grams of 3,4-methylenedioxymethamphetamine i.e. ecstasy. Deputy District Judge Colin Mackintosh sentenced the applicant to 28 months' imprisonment. The sentence is made up as follows. The judge used a starting point of two years' imprisonment, discounted it by one third because of the guilty plea, thus reducing the sentence to 16 months' imprisonment. Then he enhanced the sentence according to section 56A of the Dangerous Drugs Ordinance ("the Ordinance") by 75%, making the final sentence to be 28 months' imprisonment. The applicant seeks leave to appeal against the sentence.

The evidence

2. The evidence revealed that an undercover police officer PW1 was assigned to three discos and karaoke bars to gather evidence on drug trafficking activities. The first was in a disco in Shatin from 28th March 2001 to 30th March 2001. The second was in a karaoke bar in Shatin from 5th to 16th April 2001. The third was at the Queen Disco in Tsuen Wan from 20th April to 22nd October 2001.

3. In relation to the offence against the applicant and the other defendant, on 25th August 2001, PW1 went to the Queen Disco. While in the disco, PW1 met the applicant who later walked away. PW1 then sat with D4, D6 and D7. D4 was the defendant jointly charged with the applicant in this offence. D6 and D7 were two of the defendants who faced different charges in the same case. At some stage the applicant returned to the disco and took out a bag containing ecstasy tablets and packets of ketamine from his underpants and handed it to D4. D4 then concealed the bag of drugs into the torn cushion of a round stool on which he was sitting. After talking to D4 for a while, the applicant left. An hour later, the applicant returned and took out another bag of drugs from his underpants and gave it to D4. Again, D4 concealed this other bag of drugs into the torn cushion. D4 also handed two piles of cash to the applicant, saying "Big brother, here are $2,000 bucks. Do your count." After counting the money, the applicant offered to sell drugs to PW1. PW1 agreed to buy three ecstasy tablets. The applicant then told D4 to give three tablets to PW1. D4 took three tablets from the torn cushion and handed them to PW1 in the presence of the applicant. PW1 then gave $500 to the applicant who returned $200 in change to PW1.

Admission of other defendants

4. Apart from the applicant and D4, there were six other defendants in the same case. These other defendants were charged either separately or jointly with their co-defendants in drug trafficking offences in these three entertainment establishments.

5. In the Summary of Facts, D2 admitted that in relation to two charges the drugs were supplied to him by the applicant in the Queen Disco. D3 also stated in relation to one of the charges he was facing, the drugs were supplied by the applicant.

Basis of sentence

6. However, as was pointed out by the judge, the applicant was charged with one offence of trafficking in three tablets of ecstasy and what other defendants had said about the applicant in their interviews with the police must be ignored. This must be correct. We also shared the judge's concern that it was astonishing that the applicant was not charged with some more serious offences.

Tariff

7. In relation to the offence of ecstasy, this Court had set out the tariff in HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46. Where the quantity of ecstasy is from 25 to 400 grams, the tariff is two to four years' imprisonment. Where the drugs are below the 25 grams level, the sentence is entirely within the discretion of the sentencing court.

8. This Court observed that at lower levels of trafficking, it would be necessary for the sentencer to make a careful assessment of the real criminality involved. For trafficking in very small quantities, immediate custodial sentence for first offenders might not always be necessary. Some increase in the level of sentences would be justified where there was evidence that the accused was responsible for the importation or manufacture of the drug, or where there were other aggravating circumstances.

Sentence for small quantities

9. The Court has not been provided with cases on the sentences imposed on trafficking on small quantities of ecstasy. However, some assistance can be gathered from two recent cases.

10. In HKSAR v Leung Chun-fung, CACC 373 of 2002, this Court adopted the same tariff for ecstasy in dealing with sentence for trafficking in ketamine. In that case the quantity involved was 0.56 grams of ketamine. On a guilty plea the original sentence was one year's imprisonment. This was substituted to a three months' imprisonment on appeal.

11. In HKSAR v Lau Chi-chung, HCMA 295 of 2002, Gall J. affirmed the total sentence of six months' imprisonment for two charges of trafficking in 0.04 grams and 0.74 grams of ketamine respectively. The individual sentences were four months' imprisonment with two months of the second charge to run consecutively to the sentence of the first charge. The sentences were imposed after a discount was given for the guilty plea.

Heavy sentence

12. It is clear that the present sentence, even before the enhancement imposed by the judge, was a very heavy one indeed. Trafficking in drugs of 25 grams will attract an imprisonment of two years. In this case, the drugs involved was 0.27 grams which was slightly over one tenth of 25 grams and yet the same starting point of two years' imprisonment was used. This sentence has to be justified by some strong reasons.

13. In drug trafficking cases the tariff of sentence is determined by the quantity of the drugs involved. The prosecution had chosen to charge the applicant with a single charge of trafficking in some relatively small quantity of drugs. There really is no justification to impose a sentence which is appropriate for drugs of ten times the quantity involved. However, ultimately each case has to be decided by its own facts. Quantity aside, in relation to the offence that the applicant was charged with, the Summary of Facts revealed that the applicant had actually supplied two bags of drugs to D4 containing ecstasy and ketamine. D4 also gave $2,000 to the applicant. These facts were admitted by the applicant.

14. Considering the criminality involved, we are of the view that the appropriate starting point is six months' imprisonment. This is reduced by one-third because of the guilty plea to arrive at a sentence of four months' imprisonment.

Enhancement of sentence

15. Under section 56A of the Ordinance, the court is entitled to enhance the sentence when it is furnished with information which proves that the commission of the offence involved a minor. This information may relate to any of the following :

(a) the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person;

(b) a person obtaining by whatever means a dangerous drug from a minor;

(c) provision by a person to a minor of any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug;

(d) a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence;

(e) use of a minor in assisting the operation or management of premises which are used as a divan or for unlawful trafficking, manufacturing, or storage of a dangerous drug.

HKSAR v Tam Wai-pio

16. In enhancing the sentence the judge considered HKSAR v Tam Wai-pio [1998] 4 HKC 291, in which this Court affirmed an enhancement of 50% of the original sentence. The enhancement was pursuant to the Organiszed and Serious Crimes Ordinance (Cap. 455). This Court stated that :

“ We take the view that enhancement by 50% cannot be criticised. In saying this, we recognise that there may well be organised crimes such as those involving drugs and prostitution which may attract percentage increases above or well above 50%, and even some cases involving stolen cars or smuggling of a very grave kind. This was envisaged by this court in HKSAR v Cheung Wai Man & Ors [1998] 4 HKC 284 (a judgment in Chinese), where Liu JA said at 290E :

For such organised crimes as vehicle smuggling, trafficking in women for the purpose of prostitution and the use of force to recover the money lent at an excessive interest rate to gamblers as in this case, this court is of the view that an enhanced sentence of even more than 50% is appropriate. "

17. Ms. Lisa Remedios, counsel for the applicant, submitted that the reliance on Tam Wai-pio was inappropriate because the comment there was about the enhancement over 50% for trafficking in women for the purpose of prostitution.

18. In our view, it is clear from the judgment that this Court was equally concerned with drug trafficking offences as well. Drug trafficking is a serious crime where criminals very often exploit some vulnerable members of the society, such as a minor, to carry out their criminal activity and clearly the court is entitled to enhance the sentence by well over 50% in appropriate cases. The rationale behind the enhancement provision is really to send out a clear message that drug traffickers will be expected to get a heavier sentence if they exploited the youth.

First enhancement

19. Referring to the judge's comment that there was no previous authority on the use of section 56A, Ms. Remedios submitted that the present case on enhancement would be the first one of its kind under section 56A. She relied on HKSAR v Lee Sai-wing [1998] 4 HKC 281 which was applied later in HKSAR v Ma Suet Chun and others [2001] 4 HKC 337 and submitted that any enhancement of sentence for the first case of its kind should not be more than 30%.

20. In our view, this is a misreading of the two judgments. Enhancement of a sentence may due to different statutory provisions. This Court in these two cases was concerned with enhancement because a particular crime was becoming prevalent. In Lee Sai-wing this Court held that for crimes that were becoming prevalent, if the sentence was enhanced by 50% without prior warning, it might lead to a sense of unfairness. In respect of crimes that were becoming prevalent, the extent of enhancement would be decided by their gravity, prevalence and effect upon the community.

21. These two cases are not authorities for saying that in other cases where an application for enhancement was made for the first time of a case of that type, the court cannot enhance the sentence by 50% or more. In these two cases, the Court was dealing with different statutory provisions.

No prior warning required

22. Unlike the two earlier cases, we see no reason why in this case some prior warning should be given before an enhancement of 50% or more can be made. The courts in Hong Kong are constantly dealing with drug trafficking by youths who obviously are exploited by criminals who are older than they are. Young offenders are generally sentenced on the same tariff as an adult offender based on the quantity of the drugs.

23. D4 was aged 17. Although there is no definition of minor in the Ordinance, one has to take a common sense approach and a youth of 17 years of age is obviously a minor. The applicant was 27 years of age. He was obviously the ringleader and he was engaging the youth in carrying out his crime. In this case, however, a 75% enhancement of the sentence was a heavy one. It should be reserved for cases of the more severe kind e.g. where the defendant was actually jointly charged with a number of young people in drug trafficking. We consider that a 50% increase is appropriate in this case. The sentence after the enhancement should be six months' imprisonment.

Conclusion

24. We will allow the application for leave to appeal. We will treat the application as the appeal. We will set aside the sentence of 28 months' imprisonment and substitute it by a sentence of six months' imprisonment.