HKSAR v. WONG KIN KAU

CACC 269/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 269 OF 2009

(ON APPEAL FROM HCCC NO. 133 OF 2009)

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JUDGMENT

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Hon Tang VP:

1.  The applicant pleaded guilty to three counts of trafficking in dangerous drugs.  The total drugs had an estimated retail value of $352,872.  On 28 July 2009, he was sentenced to a total term of imprisonment of 12 years. 

2.  The sentence was arrived at as follows:

“(a)    On the 1^st count (0.69 gm ice & 1.33 gm herbal cannabis), 18 months imprisonment;

(b)     On the 2^nd count (300 gm ketamine, 56.70 gm ice, 10.94 gm nimetazepam, 0.68 gm methamphetamine), 18 years imprisonment;

 (c)    On the 3^rd count (2,320.17 gm herbal cannabis), 9 months imprisonment.”

The sentences were reduced by one-third for the guilty plea and ordered to be served concurrently.

3.  Mr Wong Po Wing, for the applicant, submits that the starting point of 18 years adopted for the 2^nd count as well as the overall sentence of 12 years’ imprisonment were manifestly excessive.  He submits:

“12.   The learned judge arrived at this starting point sentence by considering (a) that 300 gm ketamine warrants a sentence of 6 to 9 years re Hii Siew Cheng; (b) 56.70 gm ice falls within the sentence range of between 7 to 10 years (which is applicable for 10 to 70 gm ice re Ching Kwok Hung); (c) 10.94 gm of nimetazepam should be sentenced on the same basis as ketamine.

13.    A sentence of slightly below 9 years imprisonment was considered applicable for the sentence of 56.70 gm of ice, considering the guideline in Ching Kwok Hung (1R, 5H) which says that the sentence of 7 to 10 years was applicable for between 10 to 70 gm. The learned judge has not dissented from this calculation.

14.    It appears that the learned judge took 9 years imprisonment as being the proper sentence for 300 gm ketamine and also 9 years imprisonment as being proper for 56.70 gm of ice, before arriving at the overall starting point sentence of 18 years imprisonment for the 2^nd count.”

4.  One of the drugs involved in the 2^nd count is a drug called nimetazepam which I understand is commonly known as “No. 5” or “Wong Fei Hung”.  On the evidence before her, the learned Deputy Judge was satisfied that it was as dangerous as ketamine or ecstasy so that the guidelines regarding ketamine and ecstasy should apply to this drug.  Mr Wong does not disagree with that approach. 

5.  In HKSAR v Ko Ka-hing [2009] 4 HKLRD 856, this Court (differently constituted) identified two different sentencing approaches when a defendant had trafficked in more than one type of dangerous drugs:

“(a)    The first approach is the ‘individual approach’ where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount;

(b)     The second approach is the ‘combined approach’ where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point; but no such adjustment is required if the less serious drug is present in insignificant quantity.”

6.  Cheung JA went on to say:

“3.     … No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point, …”

I agree.  I add that I believe, often, it is the combined approach which is more likely to lead to the correct overall sentence.

7.  Sentencing guidelines in Hong Kong already clearly reflect the importance of deterrence when trafficking in dangerous drugs is involved.  In this case, a large quantity of drugs is involved but a starting point of 18 years is in my view disproportionate to the seriousness of this offence.

8.  In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 this Court (differently constituted) laid down guidelines for sentence after trial for traffickers in ketamine and ecstasy as follows:

“ (1)     up to 1 g – within the sentencer’s discretion;

(2)     over 1 - 10 g – 2 to 4 years’ imprisonment;

(3)     10 - 50 g – 4 to 6 years’ imprisonment;

(4)     50 - 300 g – 6 to 9 years’ imprisonment;

(5)     300 - 600 g – 9 to 12 years’ imprisonment;

(6)     600 - 1,000 g – 12 to 14 years’ imprisonment; and

(7)     over 1,000 g – 14 years upwards.”

9.  Here we are concerned with 300 grammes of ketamine.  If the 10.94 grammes of nimetazepam is added to the 300 grammes of ketamine the sentence should be roughly the same. 

10.  In the case of ice, the appropriate guideline can be found in the case of A.G. v Ching Kwok-hung [1991] 2 HKLR 125:

“(1)   up to 12 grammes - 3 to 7 years' imprisonment;

(2)     between 10 and 70 grammes - 7 to 10 years' imprisonment;

(3)     between 70 and 300 grammes - 10 to 14 years' imprisonment;

(4)     between 300 and 600 grammes - 14 to 18 years' imprisonment;

(5)     over 600 grammes - 18 years' and upwards.”

11.  Ice and ketamine are not directly comparable.  So how does one combine the two?  In my view, when one looks at the tariffs, one sees that 300 grammes of ketamine carries roughly the same sentence as 60 grammes of ice.  That can be used as an indication that 300 grammes of ketamine is as serious as 60 grammes of ice.  On that basis, the applicant should be sentenced as if he had in his possession 120 grammes of ice or 600 grammes of ketamine.  But in the case of 600 grammes of ketamine or 120 grammes of ice, according to the guidelines, the sentence would have been about 12 years.  There is no evidence that they had been mixed into a cocktail to enhance their potency.  But the potential is there and it is something we may take into account.

12.  The applicant was also convicted on two other counts.  He was arrested outside a building in Kwai Chung and had the drugs in the 1^st count on his person.  The drugs in the 2^nd and 3^rd counts were found at his home on the 3^rd floor of the same building.  In such circumstances a concurrent sentence is appropriate.  Bearing in mind the quantities of drugs involved in these two counts, however, as well as the potential for the mixing of the drugs, I believe that we should go beyond the upper limit of 12 years.  In the circumstances of this case, I believe the appropriate starting point is 13½ years. 

13.  I would give leave to appeal against sentence and treating this as the hearing of the appeal, reduce the applicant’s sentence on count two to 9 years which is two-thirds of the starting point of 13½ years.

Hon Yeung JA:

14.  I agree with the judgment of the Vice-President and have nothing to add.

Hon Saw J:

15.  I agree and I have nothing to add.