HKSAR v. CHENG KING YIN

CACC568/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 568 OF 2001

(ON APPEAL FROM HCCC NO. 351 OF 2001)

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J U D G M E N T

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Hon Jackson J (giving the judgment of the Court) :

Introduction

1. On 11 June 2001, the applicant was intercepted by a Customs Officer upon arrival at the Lo Wu Border Control Point. She was searched and found to be in possession of 4,542 tablets containing 33.77 grammes of methamphetamine (commonly known as "ice") and 786.98 grammes of ketamine, and 500 tablets containing 9.07 grammes of midazolam maleate which were concealed inside the quilt that the applicant was carrying. In addition, inside her handbag were found 16 tablets containing a total of 14 milligrammes of estazolam.

2. The applicant was charged with two offences :

(i) Trafficking in the tablets containing ketamine and ice and the midazolam maleate contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134; and

(ii) Possession of the 16 estazolam tablets contrary to section 8(1)(a) and (2) of the same Ordinance.

3. She pleaded guilty to both charges at committal proceedings and her case was transferred to the Court of First Instance for sentence on 6 December 2001. It was an admitted fact that the street value of the methamphetamine/ketamine tablets was $181,665 and that of the midazolam maleate was $16,250. The applicant was sentenced by Deputy Judge Whaley on the first charge of trafficking to six years and two months' imprisonment and on the second charge to a concurrent term of one week. She seeks leave to appeal against her sentence on the first charge.

The grounds of appeal

4. The applicant's ground of appeal, shortly stated, is that the sentence of six years and two months' imprisonment imposed in respect of the first charge was "manifestly excessive and too severe in all the circumstances". In support of that general ground Mr Whitehouse, who appears before us on behalf of the applicant, initially sought to argue a number of particulars including that :

(a) the "tariff sentence" relative to the drug ketamine should not equate to that relative to the drug commonly known as "ecstasy"; and

(b) it is wrong in principle in a case such as this for the sentencer to - in effect - enhance the appropriate sentence for trafficking in ketamine by virtue of the added presence of the drug "ice".

5. Mr Whitehouse informed the court by letter some days prior to the hearing of this application that he no longer felt able to argue those particulars before us. In our judgment that was both a sensible and entirely proper view given the available authorities.

6. In the event Mr Whitehouse now confines his argument to two matters : first that the overall starting point in sentence adopted by the learned Deputy Judge of 10 years' imprisonment was too high, and second that the applicant should have received credit for her assistance given to the authorities subsequent to her arrest.

7. We can deal with the first of those matters shortly. Equating ketamine with ecstasy (and viewing it in isolation), the appropriate starting point would be about eight years' imprisonment. [See HKSAR v. Lee Tak Kwan [1998] 2 HKLRD 46]. In respect of 33.77 grammes of drug "ice" (again viewed in isolation) the appropriate starting point would lie between 7-10 years' imprisonment. [See AG v. Ching Kwok Hung [1991] 2 HKLR 125].

8. Taking account of the sentencing difficulties when a "cocktail " of dangerous drugs is concerned [see HKSAR v. Wong Kam Wo [2001] 2 HKLRD 290] we are unable with respect to see how it can be said that the starting point of 10 years' imprisonment adopted by the learned Deputy Judge was in any way wrong.

9. Inter alia what Mr Saw SC for the respondent has to say about that matter is this :

" In the present case, the majority of the dangerous drugs being trafficked were 4,542 tablets containing 33.77 grammes of methamphetamine and 786.98 grammes of Ketamine. The quantity of either type of drug being trafficked in this case was significant and would normally attract a lengthy imprisonment term. It is the Respondent's submission that it would be wrong to sentence solely on the basis of trafficking in either of Ketamine or Ice and to ignore the other. This is particularly so when it is the case as here that whilst Ketamine may be said to be less dangerous than methamphetamine (Ice), a potential purchaser of Ketamine may unwittingly and unknowingly be introduced to drugs of a higher degree of dangerousness than they intend. It is equally inappropriate to add the total quantity of methamphetamine (Ice) and Ketamine and to sentence on that basis.

In this case, it is submitted that the Judge was correct to consider the sentencing guideline as set out in HKSAR v LEE Tak-kwan (supra) and then to adopt a starting point of 8 years imprisonment to sentence for trafficking in 786.98 grammes of Ketamine. It would not be correct to ignore the substantial quantity of Ice involved in this case, as trafficking in such quantity alone can attract an imprisonment term of between 7 to 10 years (Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 refers). The Respondent submits that the Judge had been conservative in enhancing the starting point by 2 years imprisonment in this case.

It is further submitted that the overall sentence is likely to be similar, if not more lengthy, had the Judge imposed the sentence for trafficking in Ice in this case as a 'base' and to, adjusted it upwards upon taking into account, the quantity of Ketamine."

10. We respectfully agree with those submissions not least because they seem to us to accord with common sense.

Assistance to the authorities

11. As to this matter we are further indebted to Mr Saw for setting out in a most helpful fashion in his written argument the nature of the applicant's assistance and we can do no better than to set out here a précis of that argument as follows :

" Two days prior to the date on which this Applicant was sentenced, her boyfriend at the time of her arrest, TANG Wing-keung had himself been arrested at the Lo Wu Border Control Point entering Hong Kong with 333.63 grammes of a mixture containing 272.49 grammes of heroin hydrochloride.

The timing of the sentencing of this Applicant is perhaps unfortunate. Had she applied to have her sentencing adjourned pending the determination of the matters involving TANG Wing-keung, the Deputy Judge may well have been able to give to her further credit for her assistance to the authorities.

Upon arrest and in a cautioned interview on the 21st December 2001, TANG admitted that a Mainlander had instructed him to arrange for dangerous drugs tablets to be brought to Hong Kong from Shenzhen on the 11th June 2001 and that he told the Applicant to do the delivery. (This statement was made after this Applicant had been sentenced.)

After TANG's arrest and indeed after she herself had been sentenced, the Applicant attended an identification parade at which she identified TANG as her boyfriend and the person who had asked her to bring the dangerous drugs to Hong Kong on the 11th June 2001.

TANG was subsequently charged on indictment with the following offences

Count 1 : Trafficking in 272.49 grammes of heroin hydrochloride on the 4th December 2001; and

Count 2 : Conspiracy to traffic in dangerous drugs with the Applicant and another person on the 11th June 2001."

The Applicant was listed as a prosecution witness on the back of the indictment and it was the prosecution's intention to call the Applicant to testify against TANG in relation to Count 2.

On the 11th February 2003, TANG pleaded guilty to Count 1 and the prosecution asked for Count 2 to be left on the Court's file and not be proceeded with without the leave of the Court. He was sentenced to 8 years and 8 months imprisonment.

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The Respondent submits that the real issue in this appeal is whether or not there are now circumstances which would require this Court to further reduce the sentence of the Applicant

The Respondent accepts that the contribution made towards the prosecution of TANG Wing-keung by the Applicant is more significant now than it was at the time of her being sentenced.

Subsequent to being sentenced, she :

(i) attended an identification parade wherein she identified TANG Wing-keung as the person who had requested her to bring drugs into Hong Kong;

(ii) provided further witness statements as to the circumstances of her bringing drugs into Hong Kong at the request of TANG Wing-keung;

(iii) agreed to be a prosecution witness (she would have been the primary prosecution witness) on a prosecution of TANG Wing-keung for the offence of conspiracy to traffick in dangerous drugs."

Conclusion

12.We are satisfied that there are circumstances in this case (as set out in paragraph 11) which require us to further reduce the applicant's sentence.

13. We grant leave to appeal and we treat the hearing of the application as the hearing of the appeal. The sentence of six years and two months' imprisonment in respect of the first charge will be reduced by eight months to a term of five years and six months.