HKSAR v. LAI KWOK HUNG

CACC564/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 564 OF 2002

(ON APPEAL FROM HCCC NO. 299 OF 2002)

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

Introduction

1. On 23 October 2002 the applicant pleaded guilty in the magistracy to two offences of trafficking in dangerous drugs. He was committed to the Court of First Instance for sentence and he was sentenced by Nguyen J to concurrent terms of three years and four months' and eight years' imprisonment.

2. The charges to which he pleaded guilty in the magistracy were as follows :

" 1st Charge

Statement of Offence

Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Particulars of Offence

LAI Kwok-hung, on the 11th day of May, 2002 outside Flat E, 2nd Floor, Wah Fat Mansion, Nos. 1K-1T, Tung Choi Street, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 454 tablets containing a total of 2.52 grammes of methamphetamine and 54.38 grammes of 3, 4-methylenedioxymethamphetamine.

2nd Charge

Statement of Offence

Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Particulars of Offence

LAI Kwok-hung, on the 11th day of May, 2002 at Flat E, 2nd Floor, Wah Fat Mansion, Nos. 1K-1T, Tung Choi Street, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 878 tablets and 1 tablet fragment containing a total of 19.42 grammes of methamphetamine, 30.83 grammes of 3, 4-methylenedioxymethamphetamine and 10.28 grammes of diazepam, 281.95 grammes of a powder containing 230.05 grammes of ketamine; and 91.22 grammes of cannabis."

3. The pertinent part of the summary of facts admitted by the applicant reads as follows :

" The defendant was intercepted by police officers of the Narcotics Bureau at 9:04 p.m. on 11.5.2002 at the staircase landing on 2nd Floor, Wah Fat Building, Tung Choi Street, Mongkok, Kowloon. Upon body search, a total of 454 tablets of suspected dangerous drugs ('DD1') were found in 2 cigarette boxes and a piece of tissue paper in the pocket of the jeans he was wearing. He also had on him cash in the sum of $35,000. Under caution, the defendant said that the 'fing tau' tablets were to be sent to his friend 'Ho Chai'.

2. The defendant was taken back to Room 2, Flat E, 2nd Floor, Wah Fat Building, Tung Choi Street, Mongkok, Kowloon (the 'Room') and the keys found on him were used to gain access. Inside the room police found 11 bags of suspected dangerous drugs in tablet form, 13 bags of suspected dangerous drugs in white powder form and 5 bags of suspected cannabis (collectively 'DD2'). Under caution, the Defendant said, 'Ah Sir, I am just an employee.'

3. The defendant further admitted in his Record of Interview, inter alia, that:

(a) DD1 were 'fing tau' tablets to be delivered to his customers;

(b) DD2 also belonged to him and he would package them and deliver them to customers upon receipt of orders; and

(c) The $35,000 found from him was proceeds of sale of the 'fing tau' tablets and ketamine."

The ground of appeal

4. The applicant seeks leave to appeal against his sentence and his ground of appeal perfected by Mr Wong who appears on his behalf is this :

"In relation to the 2nd count, even taking a global view of all the dangerous drugs involved (i.e. including those under the 1st count), the starting point of 12 years adopted by the learned judge is too high in the circumstances. Consequently, the total sentence of 8 years' imprisonment (after deduction of the normal 1/3 discount for the Applicant's guilty plea) is manifestly excessive."

The reasons for sentence

5. After hearing extensive mitigation and in the course of giving his reasons for sentence in this case, the learned judge said this :

"You do have previous convictions and one of them is similar to the present offences, when you were convicted in trafficking in dangerous drugs in 1994. Because at the time you were only about 18, the judge sentenced you to be detained in the Training Centre.

In assessing the starting point, I take into account everything which has been said on your behalf by your counsel. I take into account the fact that after your arrest, you did co-operate with the police to the extent that you made full and frank admissions to them and you pleaded guilty before the magistrate at the earliest possible opportunity, which I am prepared to accept as a manifestation of your remorse in having committed these offences.

In assessing sentence, I am bound to follow guidelines laid down by the Court of Appeal. These guidelines of certain starting points are based upon the weight of the narcotic being trafficked in. Having regard to the weights of the drugs in the two charges, the sentences I impose upon you are as follows: on the 1st charge where the narcotic trafficked in is 2.52 grammes of methamphetamine and 54.38 grammes of 3, 4-methylene-dioxymethamphetamine, colloquially known as NDMA or Ecstasy, the starting point on the 1st charge is one of 5 years' imprisonment. Giving you the usual discount for your plea of guilty, that sentence is reduced to one of 3 years and 4 months.

In the 2nd charge, the respective amounts of narcotics are as follows: 19.42 grammes of metamphetamine, commonly known as 'Ice'; 30.83 grammes of NDMA; 10.28 grammes of diazepam; 230.05 grammes of ketamine; and 91.22 grammes of cannabis, which in this case the prosecution accept were herbal cannabis.

Having been referred by your counsel to various authorities of the Court of Appeal, I am prepared to - in assessing the starting point on the 2nd charge - disregard the quantities of diazepam and the quantity of cannabis.

Based on the quantities of 'Ice', Ecstasy and ketamine, I adopt as a starting point on the 2nd charge a sentence of 12 years' imprisonment, and giving you the usual discount for your plea of guilty, that is reduced to 8 years' imprisonment.

Taking into account the totality principle, and taking into account the fact that these two offences were committed on the same day and in close proximity to each other, I order that the sentence on the 1st charge is to be served concurrently with the sentence on the 2nd charge, which means that the total term of imprisonment that you have to serve is one of 8 years."

The drugs concerned and the tariff sentences applicable

6. The type and total amount of drugs concerned in both charges were as follows :

(a) 21.94 grammes of Ice (2.52 grammes + 19.42 grammes);

(b) 85.21 grammes of Ecstasy (54.38 grammes + 30.83 grammes);

(c) 230.05 grammes of Ketamine;

(d) 10.28 grammes of Diazepam; and

(e) 91.22 grammes of Herbal Cannabis.

7. The relevant tariff sentences are these :

(a)	"Ice" :
	Up to 12 grammes:	3-7 years
	10-70 grammes:	7-10 years
	(see AG v. Ching Kwok Hung [1991] 2 HKLR 125)
(b)	"Ecstasy" :
	25-400 grammes:	2-4 years
	(see HKSAR v. Lee Tak Kwan [1998] 2 HKLRD 46)
(c)	"Cannabis" :
	Under 2,000 grammes:	Up to 16 months
	(see R. v. Tuen Shui-ming & Anor [AR 12 of 1994])

8. No tariff or guideline sentences have been established by this court but we accept, for the purposes of this application, that current sentencing practice equates "ketamine" with "ecstasy" and "diazepam" with "methaqualone".

9. As we have said, and plainly because the amounts of "diazepam" and "cannabis" in this case were so small, the learned judge disregarded them completely for sentencing purposes and we do likewise for the purposes of this appeal.

10. No complaint is made about the sentence imposed upon the applicant in respect of the 1st charge and, in our view, nor could there be given that it was ordered to be served concurrently with that imposed in respect of the 2nd charge. It would seem to be the case that in respect of the 1st charge the judge took a starting point of about two years for the 2.52 grammes of "ice" and one of about three years for the "ecstasy".

11. The only question is whether or not the starting point of 12 years' imprisonment adopted by the learned judge in respect of the 2nd charge was in itself manifestly excessive and the short answer to that question is 'no, it is not' if as a matter of principle it is correct to view the quantities of "ice", "ecstasy" and "ketamine" separately and to apply the appropriate tariffs.

12. So far as we are able to ascertain it, that is the course which the judge took by apparently taking a starting point of about eight years for 19.42 grammes of "ice", about two and a half years for 30.83 grammes of "ecstasy", and about three and a half years for 230.05 grammes of "ketamine".

13. Leaving aside for the moment the principle of totality which the learned judge applied specifically when ordering that the sentences for both charges should be served concurrently, we are satisfied that the learned judge's approach (if that was indeed his approach and we have not inadvertently misrepresented it) cannot be faulted albeit that he might alternatively have established the appropriate starting point for the drug "ice" and then enhanced it by reference to the quantity of "ecstasy" and "ketamine" (see HKSAR v. Cheung Kwok Leung, Lowence (Crim.App.539 of 2002)). If a man is in possession of three different and distinct types of drugs (each in a substantial quantity) for the purposes of trafficking, then it is entirely appropriate to look at and to apply the tariff applicable to each drug whether at the time of seizure they remain unblended or whether they have been mixed into tablet form. In the case of tablets, it is certainly not appropriate to ignore one substantial constituent drug simply because it is apparently "less significant" (or perhaps arguably "less dangerous") than another and therefore to be regarded as no more than as a form of dilutant (see Cheung Kwok Leung, Lowence above).

14. By that process the sentencer will arrive at what might be described as an initial view of the appropriate starting point and from there he will proceed to attempt to achieve a just over-all sentence taking into account, among other things, the fact of the combination of the drugs (if that has any relevance); the general mitigation and the principle of totality.

15. Applying that process in the present case, the initial starting point in sentence in respect of the 2nd charge may well be 12 years. However when adjusted to take account of totality and in order to achieve a just over-all sentence, it is our view that a term of 10 years subject to a 1/3 reduction is appropriate.

16. For all of these reasons we grant leave to appeal, and treating the hearing of the application as the hearing of the appeal we allow the appeal to the extent that a term of six years and eight months' imprisonment will be substituted for the term of eight years imposed in respect of the 2nd charge. For the avoidance of any doubt that substituted term will be served concurrently with the term imposed in respect of the 1st charge.