HKSAR v. SEABROOK MARK ANTHONY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 364
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court) :

1. The applicant was convicted after a trial before District Judge Chow of two charges of trafficking in a dangerous drug and one charge of possession of a dangerous drug. The first two charges involved 3 tablets containing 0.2 grammes and 349 tablets containing 21.95 grammes of the dangerous drug, methylene-dioxy-methamphetamine hydrochloride or in short MDMA, commonly known as Ecstasy. The total narcotic content in these two charges was 22.15 grammes. The remaining charge involved a small quantity of cannabis. He was sentenced to 18 months on the 1st charge and 4 years and 4 months on the 2nd charge concurrent and 7 days on the 3rd charge consecutive. He now applies for leave to appeal out of time against the sentences on the charges involving Ecstasy.

2. The facts as found by the District Judge are that on 3rd September 1996 in the coffee shop of the Airport Regal Hotel, the applicant offered to sell to an undercover police officer Ecstasy tablets at $140 each. The officer, following the applicant's instructions, found three such tablets under the cushion of the seat at the table where the applicant had been sitting. Subsequently, the police found on the applicant a luggage tag and following that lead to the luggage room of the hotel, the police found 349 tablets of Ecstasy in the applicant's luggage.

3. The applicant was sentenced on 9th May 1997. At the time of sentence, the District Judge, as he stated in his reasons for sentence, had no guidance from the Court of Appeal on sentencing offences of trafficking in Ecstasy. The District Judge was referred to the District court case of R. v. Dickson [1996] C.C. 914 where trafficking in 30 tablets of Ecstasy attracted a total sentence of 12 months after a plea of guilty and the Magistrate Appeal case of Dullage and Way [1996] M.A. 319 where 18 months was considered appropriate starting point for trafficking in one tablet containing 0.1 gramme of MDMA. The District Judge accepted that Ecstasy was not addictive. He followed the rationale in Dullage and Way that the starting point for Ecstasy offences should be below that for trafficking in the same quantity of heroin, having regard to Ecstasy being non addictive. On that basis, he arrived at a sentence of 4 years and 4 months for a total of 22.15 grammes of MDMA.

4. Since then, guidelines for sentencing such offences have been given in the case of HKSAR. v. LEE Tak-kwan [1997] Crim. App. 177. On these guidelines, the sentence for trafficking in 22.15 grammes of MDMA would be one of the Court's discretion but in any case below 2 years' imprisonment.

5. Mr. Dinan for the applicant submitted that if the applicant were sentenced under the new guidelines, he would significantly have received a lesser sentence and if the guidelines were existing at the time of sentence, there was no reason not to follow them. He referred to the case of R. v. Mark Humphries [1997] Crim. App. 645 where a sentence of 7 1/2 years for trafficking in 56.43 grammes of Ecstasy imposed prior to the guidelines coming into existence was reduced to one of 2 years and 3 months in accordance with the guidelines. He submitted that the sentence of 4 years and 4 months should be reduced from a humanitarian point of view.

6. As to the applicant's reason for making this application out of time, Mr. Dinan submitted that at the time of sentence, the guidelines were not available and the applicant was refused legal aid because there was no reasonable ground of appeal. With the guidelines now in place, the applicant had reasonable grounds to proceed to his appeal. The applicant had not done anything to dis-entitle himself to appeal.

7. Mr. Luk for the Government submitted that the guidelines in LEE Tak-kwan were not applicable to the applicant's case. He referred to CHAN Wing-hung v. R. [1976] HKLR 119 and R. v. CHAN Ka-wai [1988] Crim. App. 530 and submitted that it was settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence.

8. In CHAN Wing-hung, a sentence of 12 years for trafficking in dangerous drugs was reduced to one of 8 years because at the time the offence took place the tariff for sentences for an offence of that nature was under 10 years although the subsequent practice of the Courts was to impose sentences up to 12 years for a similar offence. In this regard, Briggs C.J. said "it is necessary that the sentence for an offence should be related to the time at which the offence was committed". In CHAN Ka-wai, Cons V.-P., had this to say on this matter:

"His argument rests upon two premises:

1. that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence ... The first premise we take to be settled law."

9. Mr. Luk further referred to R. v. LAU Tak-ming & another 2 HKLR [1990] 370 where CHAN Ka-wai was followed and the Court considered the trial judge was wrong in applying the guidelines in CHENG-yeung when they were not operative at the time of the offence or conviction. This principle was again confirmed in R. v. YEUNG Chi-sing [1990] Crim. App. 373 where Power V.-P. said "It is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence. Cons.V.-P. in R. v. CHAN Ka-wai [1989] Crim. App. 503."

10. The guidelines in LEE Tak-kwan, Mr. Luk submitted, were set down on 26th May 1998 some 18 months after the offences were committed in September 1996 and 12 months after the date of conviction and sentence. On the established principle, these guidelines should not apply to the applicant's case. As regards R. v. Mark Humphreys, had the Court been referred to CHAN Ka-wai and the cases on the same principle, the guidelines would not have been applied and Mark Humphreys should be regarded as having been decided per incuriam, so Mr. Luk submitted.

11. Mr. Dinan argued that the principle in the authorities which had been referred to related to cases where the sentence had been increased by the guidelines and where the guidelines reduced the sentences, the applicant should have their benefit.

12. In our view, the principle that the sentence for an offence should be in accordance with the prevailing practice of the court at the time of sentence is well established. This is to ensure finality in court proceedings. The guidelines in LEE Tak-kwan were not part of the sentencing practice prevailing when the offences were committed since they did not exist at that time. There was nothing to indicate that they should have retrospective effect. It matters not if they increased or reduced the prevailing sentences. The same principle applied. Mark Humphreys is a case decided per incuriam. If after 18 months, long since the offences were committed, this Court is to allow the sentences to be reviewed and reduced because the courts have since taken a less serious view of the offences in the light of new evidence or change in social circumstances, this will not only be against established principles but also likely to open a flood gate for those sentenced prior to the change regardless of how long before, who wanted to have the benefit of it. Then there will be no finality. There is no basis for applying the guidelines in the present case to reduce the sentence.

13. The question then is whether the sentence of 4 years and 4 months is wrong in principle or manifestly excessive so that this court should interfere?

14. In the grounds of appeal, the sentence of 4 years and 4 months was not challenged as being wrong in principle or manifestly excessive at the time when sentence was passed. The submission was that if the applicant's sentences were handed down later the applicant would have had the benefit of the guidelines. As has been said, change in sentence practices should not affect sentences already passed and that is no valid reason for a reduction of the sentences.

15. Mr. Dinan now attempted to submit before this court, contrary to the grounds filed, that having regard to LEE Tak-kwan, the sentence was manifestly excessive and wrong in principle because the District Judge followed the approach of the English Courts and that approach, he submitted, had been regarded by the Court in LEE Tak-kwan as inappropriate to adopt in Hong Kong. He submitted it was wrong for the District Judge to follow the rationale in Dullage and Way.

16. Mr. Luk on the other hand submitted that the District Judge was not wrong to follow what authority there was at the time to reach a conclusion. He submitted that the result in Dullage and Way had not been changed by LEE Tak-kwan and it was not disapproved in LEE Tak-kwan.

17. In LEE Tak-kwan, before setting the guidelines, the Court reviewed all the relevant factors surrounding the nature of the drug, its effects and the threat it poses to life and society compared with some of the other common drugs of abuse and considered it wrong to equate sentencing Ecstasy offences with heroin offences involving the same quantity of narcotics. One of these factors was that Ecstasy was non additive. Dullage and Way reached the same conclusion that Ecstasy was non additive and the guidelines in sentencing heroin or cocaine offences are not to be followed when sentencing Ecstasy offences. To this extent, it is not inconsistent with LEE Tak-kwan. Where it departs is in Dullage and Way a more serious view is taken in the circumstances of that case whereas in LEE Tak-kwan, the guidelines that have been set down reflect a more moderate approach. The District Judge could not be faulted in following the rationale in Dullage and Way.

18. It was submitted for the applicant that in view of this, an exercise of clemency should be considered by this court.

19. The applicant was offering for sale a not insubstantial quantity of Ecstasy tablets from which he would certainly have made a profit. The drug was found in his luggage in the airport hotel and the inference is that he had imported the drug. Despite the less serious attitude taken by the court in respect offences committed after the guidelines came into operation, we find no reason to interfere with the sentences of the District Judge. As to exercise of clemency, it is a matter for the administration and not a matter for this court to decide.

20. The application for leave to appeal out of time must be refused.