HKSAR v. CHOI HANG KEI

CACC 270/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 270 OF 2013

(ON APPEAL FROM HCCC NO 59 OF 2013)

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R E A S O N S   F O R   J U D G M E N T

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Hon Barnes J (giving the reasons for judgment of the Court) :

Introduction

1. This is an application by the applicant for leave to appeal against sentence.

2. The applicant pleaded guilty to two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 17 July 2013, he was sentenced by Deputy High Court Judge Woo to a total of 10 years 4 months imprisonment, which was arrived at in the following manner:

(1) Count 1 — 9 years 4 months imprisonment; and

(2) Count 2 — 5 years 4 months imprisonment, 1 year to run consecutively to the sentence imposed on Count 1, making a total of 10 years 4 months imprisonment.

3. The applicant applied for leave to appeal against the sentence imposed.  At the conclusion of the hearing, we granted leave and, treating the leave application as the appeal, allowed the appeal.  We quashed the sentences and the order imposed and substituted them as follows:

(1) Count 1 — 8 years 8 months imprisonment; and

(2) Count 2 — 5 years imprisonment, 4 months to run consecutively to and the remainder to run concurrently with the 8 years 8 months imprisonment imposed on Count 1, making a total of 9 years imprisonment.

4. We indicated we would give our reasons at a later stage, which we now do.

Summary of facts

5. The applicant was seen by Customs Officers conducting an operation at Pak Tin Estate on 25 September 2012 to have transferred a black plastic bag from a 7‑seater car (RB3521), which he drove into a car park, to another vehicle (MJ4087) parked next to RB3521.  When the applicant returned to the car park and boarded RB3521, he was intercepted by the officers.  A search revealed the applicant had 24 bags of ketamine on his person.  A search of MJ4087 yielded four more bags of ketamine.  These 28 bags of ketamine, which later confirmed to be 1,148.17 grammes of a solid containing 838.84 grammes of ketamine, formed the subject matter of Count 1.

6. The applicant was then escorted to a unit in Pak Tin Estate and there the officers found 0.25 kilogram of a solid containing 0.19 kilogram of ketamine, and 2,180 tablets containing 0.67 gramme of nimetazepam.  These drugs formed the subject matter of Count 2.

7. The street value of the dangerous drugs was estimated to be $307,420.27.

Background of and mitigation for the applicant

8. The applicant was 29 and married with one child.  He was employed as a driver, earning about $10,000 a month.  The applicant had a total of 10 convictions, 5 of them related to the possession of dangerous drugs.

9. The judge was informed that the applicant trafficked in the dangerous drugs to feed his own drug addiction.

Reasons for Sentence

10. After referring to Hii Siew Cheng, the judge said:

“… for trafficking between 50 to 300 grammes the sentence should be 6 to 9 years’ imprisonment. This is relevant to the ketamine under count 2. For trafficking in over 1,000 grammes of ketamine, this quantity is relevant to count 1, the sentence should be 14 years’ imprisonment upwards. I take the quantities of the ketamine in both counts together, which came to 1,398.17 grammes. For that I consider a total starting point for this drug should properly be 15 years.

Regarding the nimetazepam in count 2, the large number of tablets consists of only 0.67 grammes of this drug. There is, however, no sentencing guideline. [After referring to the case of R v Gary Orton,HCMA 225/1997] I consider a jail term of 6 months should be an appropriate starting point for this drug if dealt with separately.

[The judge then dealt with some letters submitted during mitigation.]

All in all, for count 1, I use 14 years’ imprisonment as the starting point. For count 2, I adopt 8 years as the starting point for both kinds of drugs, 18 months of which should run consecutively to the sentence on count 1. The total starting point is therefore 15 years 6 months. The defendant is entitled to one-third discount for his guilty plea, which reduces the global sentence to 10 years and 4 months.

To put it another way, for the 1^st count I pass a sentence of 9 years and 4 months and for the second count I pass a sentence of 5 years and 4 months, but I order only one year of which shall run consecutively to the sentence on the 1^st count.”

Grounds of appeal

11. Mr H Y Wong, counsel for the applicant, advanced two grounds of appeal.  In short, the complaints were that:

(1)  the judge had erred in ordering a partial consecutive sentence when he should have passed a wholly concurrent sentence; and

(2)  the judge had incorrectly calculated the total narcotic content, namely 1,398.17 grammes instead of 1,028.84 grammes, to reach an overall starting point of 15½ years for both counts, a starting point said to be manifestly excessive.

Discussion

12. The judge adopted an overall starting point for the ketamine in the two counts of 15 years imprisonment, noting that in accordance with the tariffs suggested by Hii Siew Cheng, trafficking in over 1,000 grammes of ketamine warranted a sentence after trial of 14 years imprisonment upwards.  He said that the quantities on both counts together came to 1,398.17 grammes and “[f]or that I consider a total starting point for this drug should properly be 15 years”.

13. In that, he made a material error, for the figure of 1,398.17 grammes was the amount of the mixture, not the narcotic content.  The total narcotic content was 1,028.84 grammes which would warrant a starting point for all the ketamine of 14 years.

14. The judge took the view that for the nimetazepam, a term of 6 months imprisonment would be an appropriate starting point.

15. We suspect that the judge added the erroneously reached 15 years starting point for the ketmaine to the 6 months for the nimetazepam to reach an overall 15 years 6 months starting point.  However, that was not immediately explicit from his reasoning.  What he said was that:

“… for count 1, I use 14 years’ imprisonment as the starting point. For count 2, I adopt 8 years as the starting point for both kinds of drugs, 18 months of which should run consecutively to the sentence on count 1. The total starting point is therefore 15 years 6 months. The defendant is entitled to one-third discount for his guilty plea, which reduces the global sentence to 10 years and 4 months.

To put it another way, for the 1^st count I pass a sentence of 9 years and 4 months and for the second count I pass a sentence of 5 years and 4 months, but I order only one year of which shall run consecutively to the sentence on the 1^st count.”

16. For reasons we have explained the starting point for all the ketamine should not have been 15 years.

17. We are of the view that while there were 2,180 tablets with a narcotic content of 0.67 gramme in Count 2, acting on the basis that this drug is to be treated no differently from ketamine (see HKSAR v Wong Kin-kau [2010] 4 HKC 443), this amount of nimetazepam makes no difference to the overall starting point for the ketamine.

18. Subject to any factors peculiar to the case which may warrant a reduction, a starting point overall of 14 years imprisonment is appropriate.

19. There was a suggestion, implicit in the mitigation, that some of the drugs were for the applicant’s own consumption.  Bearing in mind the applicant’s previous convictions for drug—related offences; that hehad been sentenced to a Drug Addiction Treatment Centre on no fewer than three occasions, and that the ketamine found at his home—while in large quantity (190 grammes)—were not packaged in the same manner as those found on his person or inside the vehicle MJ4087, it is fairly safe to act on the basis that at least some of the ketamine found at his home were for his own consumption.

20. We were mindful of the fact that there was no evidence of nor any submission as to how much of the 190 grammes were for his own consumption.  We were prepared to give him a slight discount when considering the appropriate sentence for Count 2.

21. We were of the view that the appropriate starting point for Count 1 was one of 13 years imprisonment.

22. As to Count 2, but for the consideration that some of the ketamine was for his own consumption, a proper starting point would have been one of 8 years.  In the event, we were prepared to adopt a lower starting point of 7 years 6 months for this count.

23. With a reduction of one third for the plea of guilty, the sentence for Count 1 is one of 8 years 8 months imprisonment and for Count 2, 5 years imprisonment.  

24. We were aware that in a case where both offences were committed on the same day and the facts were closely linked, it is proper to calculate the total amount of narcotics to arrive at an overall starting point (see HKSAR v Chow Yu Chi,CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499).

25. In the present case, we had the rather peculiar feature that the issue of self‑consumption only applied to the drugs involved in Count 2, not Count 1.  Without the issue of self‑consumption, a proper overall starting point would have been 14 years before the discount for a guilty plea, but with that issue we were of the view that an overall starting point of 13 years 6 months imprisonment before such a discount would be proper.  The total appropriate sentence after giving the applicant the discount is therefore one of 9 years imprisonment.

26. For these reasons, we ordered 4 months of the 5 years imposed on Count 2 to run consecutively to and the remainder to run concurrently with the 8 years 8 months imprisonment imposed on Count 1, making a total of 9 years imprisonment.

Comment

27. We note that despite the error by the judge as to the quantity of narcotic content, neither counsel corrected the judge.  It is emphatically counsel’s duty to correct a judge when the judge makes an error of this kind that materially affects the sentencing result.