HKSAR v. WONG PING KAY

CACC 495/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 495 OF 2001

(ON APPEAL FROM HCCC 111 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 8 October 2001, the Applicant, aged 54, pleaded guilty in the Court of First Instance before Deputy Judge Barnes to a charge of manufacturing heroin hydrochloride at his flat in Causeway Bay. A second count of trafficking in a mixture containing 14.88 grammes of heroin hydrochloride, and a small quantity of midazolam maleate, was left on the file. He was sentenced to 12 years' imprisonment against which he now seeks leave to appeal.

The facts

2. The facts were very simple.

3. At 7.00 p.m. on 13 December 2000, a team of police officers went to a flat on 4th floor, 20, Pak Sha Road in Causeway Bay to make enquiries about a missing person.

4. The flat was partitioned into six rooms (A to F) which were occupied by different tenants. The officers were let into the flat by the tenant of Room B. When the officers knocked on the door of Room D, the Applicant answered the door. When the police disclosed their identity, the Applicant immediately closed the door. However, about 10 seconds later, he opened the door again. He looked nervous. Not surprisingly, therefore, the officers requested to search the room. They then found a number of packets containing midazolam and, more importantly for present purposes, a total of 38.46 grammes of a mixture containing 14.88 grammes of heroin hydrochloride contained in plastic bags and plastic straw packets. Additionally, police found approximately 111 grammes of caffeine and a blender cup with a blade, a brush and some betting slips all of which, on forensic examination, bore traces of heroin. There were also a large number of plastic straws and plastic bags in the flat. A tenancy agreement and a receipt confirmed that the Applicant had rented the flat since 10 October 2000 at a monthly rental of $3,000.

5. When the Applicant was interviewed later, he admitted that he diluted heroin by mixing it with caffeine by using the blender. He then packaged the diluted heroin into plastic straws.

6. The Applicant said that he prepared heroin (and midazolam) for sale to drug addicts in the Chai Wan District. He had purchased one ounce of undiluted heroin for $3,800. After mixing it with caffeine, he could produce 120 straw packets of diluted heroin. The retail value of the heroin was estimated at just over $10,000.

Sentencing remarks

7. After briefly reviewing the facts of the case, the judge went on, amongst other things, to observe that the Applicant had eighteen previous convictions, ten of which were drug-related including three offences of trafficking in dangerous drugs. She then reviewed a number of relevant decisions of this court when deciding upon an appropriate sentence to impose. The judge concluded by saying:

"What the defendant has done here was to dilute the heroin with caffeine which is one of the usual ways of manufacturing dangerous drugs. …… I do bear in mind the quantity of dangerous drug found was indeed very small and this is clearly not the scale of large-scale manufacturing.

According to the confession of the defendant he purchased the heroin and diluted the same himself so as to sell to drug addicts in the Chai Wan district. Having considered the authorities I have referred to, the circumstances of the offence, the scale of the operation and the background of the defendant I am of the view that a starting point of 18 years is appropriate here. Apart from the defendant's plea I do not see any other mitigating factor. I will give the defendant the usual one-third discount." (Tr. pp. 11-12)

The application

8. Mr Richard Donald submitted on behalf of the Applicant that a sentence of twelve years after a plea of guilty on these facts was manifestly excessive and that a lower starting point would have been appropriate to reflect the relatively small scale of the Applicant's operation.

9. Mr Madigan, for the Respondent, very responsibly conceded that this application might well be viewed as having some merit because the manufacturing carried out by the Applicant was on any view at the lower end of the scale. He rightly described this as a 'one-man band' operation involving the simple dilution of heroin with caffeine before the resulting mixture was packaged into suitable straw-containers for sale. As such, he agreed that the sentence was on the high side albeit he invited us, in the light of various decisions of this court, to say that it was not manifestly excessive.

10. One of the cases to which counsel on each side referred is particularly worthy of consideration in the context of the present application, and it is right to add that the sentencing judge also had this well in mind when the matter came before her. This was R v Cheung Wai-kwong and Anor [1997] 3 HKC 496 where P. Chan J (as he then was) said at 501F:

"It is clear that for the offence of manufacturing of dangerous drugs, the quantity of drugs found is of course relevant but this is not the only factor to be taken into consideration. In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused."

11. These observations remain as relevant today as they were then, but it is important to observe the context in which they were spoken. In that case, the applicants, following trial, each received a sentence of twenty-one years for manufacturing heroin. These sentences were upheld. The applicants had been found in a flat which contained a large amount of paraphernalia, including an iron mould and a hydraulic jack which had been noticed through the letter box when police first came to flat. Believing it to be unoccupied, they waited outside the flat for two hours. It was after this that a further look into the flat revealed that the items previously in view had been moved. It then took police 10 to 12 minutes to break down the door which had been jammed shut with a wooden bar.

12. That case would have been no different to many others of its kind except for one feature. During the time police had been outside the flat, plainly the applicants had been disposing of dangerous drugs by flushing them away in the toilet. By the time police were able to gain access to the flat, no measurable quantity of dangerous drugs was to be found. A hose, which was still running when police managed to break their way in, was inserted in the toilet bowl. Police also found in the flat a large amount of paraphernalia associated with manufacturing heroin. Heroin was found on the applicants' clothing and also on their bodies prompting the comment from P. Chan J that it was on them "literally from hair to toenails". At p. 501H, he went on to say:

"It is however clear beyond doubt that judging from the large amount of paraphernalia found inside the premises, it was a significant manufacturing station with a large scale of operation.

It would be naive to assume that people involved in this operation would take the trouble of making only small quantities from time to time. These two applicants had been in the premises for at least a couple of hours and were no doubt trying to destroy as much evidence as they could while the police were breaking into the premises……… The conclusion is irresistible."

13. Returning now to the present case, the position was, as counsel have accepted, very different. Whilst the Applicant's role as a heroin addict who manufactured and supplied heroin to others remains serious, his role as a manufacturer was on a far lower scale than the major manufacturing operation involved in Cheung Wai-kwong and Anor. The scale of manufacturing can, at least to some extent, be judged by the relatively small quantity of heroin in the Applicant's possession at the time of his arrest. If he had been convicted, following a trial, of trafficking in 14.88 grammes of heroin hydrochloride he would have expected to have received, following the guidelines in R v Lau Tak-ming & Anor [1990] 2 HKLR 370, a sentence of about five and a half to six years' imprisonment.

14. The element of manufacturing, whilst undoubtedly an aggravating feature, does not in our view elevate an offence, on facts such as these, in what amounted to a comparatively small role for a manufacturer, to one which was deserving of the kind of sentence to be expected by those engaged in a rather more sophisticated operation, where an eighteen-year starting point might well be justified.

15. We think, bearing in mind all the circumstances of the case including the Applicant's criminal record, that a starting point in the region of ten years' imprisonment would have been appropriate. Giving full credit for the plea, the resulting sentence would be six years and eight months. This exercise indicates that we are satisfied that the sentence the Applicant is presently undergoing is manifestly excessive.

Conclusion

16. Accordingly, we shall grant leave, and treating the hearing as the appeal, we shall allow the appeal. The sentence of twelve years' imprisonment is quashed and in its place we substitute a sentence of six years and eight months' imprisonment.