THE QUEEN v. CHENG YEUNG

Headnote

(1)     Suggested refinements to conviction after trial sentencing tariff for possession of dangerous drugs for the proposes of trafficking contrary to section 7 of the Dangerous Drugs Ordinance.

(2)     The tariff in Char Chi Wang is based upon quantities of No 3 heroin. Where possession of other substances is established, eg. heroin base or No 4 heroin, a notional conversion of that substance into No 3 here should to undertaken for the purposes of applying the tariff.

(3)     An after trial tariff cannot in practice he taken beyond twenty years.

(4)     A tariff based primarily on quantities effectively runs out at 20 kg. Above that figure sensible distinctions based upon quantity can no longer be drawn.

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J U D G M E N T

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Hunter, J.A. :

1. On 15 May 19 88 a search was conducted of a room occupied by the applicant at No 562A, Nathan Road. Hidden in various places in the room were found :

(a)     42 plastic bags containing a total of 11,456.48 grammes of a mixture containing 689.69 grammes of salts of esters of morphine; and.

(b)     5 plastic bags containing 788.22 grammes of a mixture containing 772.73 grammes of salts of esters of morphine; and

(c)     a quantity of substances named in Part I of the Poison List in the Pharmacy and Poisons Ordinance (Cap 138).

2. On 10 August 1988 the applicant pleaded guilty in the Magistrates Court to a charge of possession of the dangerous drugs s out in (a) she (b) for the purposes of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance (Cap 134), and further to possession of the said poisons. He was committed to the High Court for sentence. On 9 September 1988 Deputy Judge Daniell imposed a sentence of 18 years imprisonment upon the drugs charge and 2 months imprisonment concurrent on the poisons charge. No issue is taken in relation to the latter sentence, but the applicant now seeks leave to appeal against the former.

3. This application raises the difficult question of the appropriate sentencing, level for possession of very substantial quantities of dangerous drugs for the purposes of trafficking. At the lower end of the quantum scale, the tariff guidelines laic down in Chan Chi-Ming v B [1979] HKLR 491, have gone a long way to achieve their object of bringing about consistency of sentencing and thus fairness between offenders. To a considerable and beneficial extent the courts, the legal profession, and offenders know they stand.

4. At the upper end of any quantities scale choice ceases, and any graph has to level out. As Kempster JA put it in R v Lau Lon Fu [1987] Cr App Fo 773 :

"The Courts of Hong Kong are and must to concerned to impose sentences in this field which do not involve incarcerating individuals for life, and must therefore have an approximate ceiling. Accordingly when very large quantities of dangerous drugs with high values are found Possessed for the purposes of trafficking, no very great distinction can be made between Particular possessors".

In that case the Court declined to interfere with a 20 years sentence imposed for Possession for unlawful trafficking of "between 60 kg and 70 kg of No 3 heroin worth ... some HK$7m".

5. If choice ceases at 60 kg, it exists below that figure and down to 1 kg. This is the area of difficulty and ambiguity, where, the upper scale in Chan Chi-ming : "very substantial (about 1,000 grammes). From 8 to 12 years save in cases of an unusually serious nature" has Proved to he much less precise, and where courts have had difficulty in plotting the curve of the graph. This application illustrates some of the problems.

6. The first is quantities. The basic general considerations expressed in Chan Chi-ming were :

"First. The quantity of the drug in Possession of the accused, which is the most important single factor in determining the proper sentence.

"Second. It is the quantity of the mixture which should be looked at rather than its content. This is because it is the mixture which sold to the customer".

Although it is in any event difficult to see why a trafficker who reduces the percentage of salts of esters of morphine in his mixture for his own profit can claim any credit upon the basis that he is less of a social evil than the vendor of a stronger mix, the Court has consistently applied the second general consideration and rejected suggestions that weaker mixes in any way went in mitigation.

7. Instructive statistics for 1979-1988 were put before the Court by the Crown, ultimately without objection from the applicant, so long as the Court did not seek to use them to alter any tariff to his particular disadvantage. These statistics show :-

(1)     Total convictions for major and minor drug offences From a pre Chan Chi-ming figure of 4711 (1099 major and 3612 minor) in 1979 they fell to 3559 in 1980. Thereaftwe they increased relentlessly to a total of 9201 (2769 major and 6432 minor) in 1986. There was a striking fall in 1987 to a total of 7567, but unfortunately the figures for the first quarter of 1988 are not encouraging.

(2)     Totals of drugs seized in kilogrammes. In 1979 only 2 types of heroin were seized; namely heroin base, 15 kg, and No 3 heroin, 115 kg. Thereafter the quantities of heroin base rose sharply until they peaked in 1984 at 972 kg. They then fell away equally quickly to 92 k, in 1987. Quantities of No 3 heroin rose annually to a figure of 343 kg in 1987. In 1983 No 4 heroin entered the picture. It quickly displaced heroin base in quantity, and the 1987 figure was 157 kg.

(3)     Purity of No 3 heroin. In the period of 1979 to 1984 this varied between 20 and 30 percent. In 1985 and 1986 it lay between 20 and 10 percent. Since 1987 it has fallen below 10 percent average is now just over 6 percent.

(4)     Price of No 3 heroin per kg. The wholesale price has fallen disturbingly from between HK$45,000 to over HK$200,000 in 1979 to a present average of the order of HK$14,000. The retail price has likewise fallen reflecting it could seen the falls both in wholesale price and in purity.

(5)     No statistics were present for the parity or price of No 4 heroin. The reason for this, we understand, is that there is little or no consumption of, or market for, No 4 heroin in Hong Kong itself. It is a different substance. If takes the form of a soluble powder hot insoluble granules. It is much more highly refined, and produced especially not for the Asiatic market but for the Western market, particularly that in the United States.

8. These statistics show material changes between the situation existing in 1979 and that today. The overall picture is one of deterioration the sentencing levels have had little apparent deterrent effect. The problems arising from the introduction of No 4 heroin in increasing quantities did not fall for consideration as they did not exist.

9. Evidence of value was put before the sentencing judge in the for of statement from Inspector Lau Yat line. He said that the 42 bags containing 11,456 grammes of mixture, which we shall call as he did the No 3 heroin, would yield retail, at May 1988 prices, some HK$565,720. In relation to the 5 bags containing 788.22 grammes of a mixture of what we shall call No 4 heroin, he said that if this was converted into No 3 heroin it would produce 12,265 grammes, and they, at May prices, would be worth some HK$605,645. He spoke solely of values in Hong Kong and made no suggestion as to the retail value of No 4 heroin in say USA.

10. The first question here is what are the relevant quantities : at what point does this case enter the scale? For the applicant Mr Plowman submits that the Court must take the total of the two mixtures figures of 12,243.7 g (ie 11,456.48 plus 788.22) and the value of a little over HK$0 565m to allow for the No 4 heroin quantity but at the No 3 heroin price it is wrong he submits to do any notional conversion of her No 4 heroin into to 3 heroin and thus arrive at a total of 23,721 g (ie 11,456 plus 12,265) and a total value of HK$1.17m. He submitted first that this would run contrary to the Court's persistent refusal to consider the purity of the mixture. If the Court has declined to reduce the tariff for low purity it cannot consistently, he argued, increase it for higher purity. Secondly he said that not all the evidential requirements suggested by McMullin VP in Suvit Utthayanwatana v the Queen [1982] HKLR 323,325 were satisfied. Thus, he asserted, it was notorious that No 4 heroin was sold in the USA.

11. Further although he strongly criticised the judge's ultimate sentence, he submitted that his initial approach was correct. The judge referred simply to a vast quantity of drug and to a street value of a million dollars". This submitted Mr Plowman, shows that the judge had done no notional conversion, had taken the quantity for which he was contending, and a value attrihutable to such quantity.

12. We cannot accept Mr Plowman's submission on quantities. IN Chan Chi-ming this Court was not pronouncing rules of law, but guidelines to fairness and consistency directed at the drug problem in 1979. It was then dominated by the supply of No 3 heroin. A tariff based upon quantities produces no consistency unless it is faced upon true comparables. The Chan Chi-ming tariff was based upon No 3 heroin. The statistics show the decline in the purity of No 3 heroin since that date. But it is still No 3 heroin and there clearly remains no good grounds for lowering sentences or the tariff on that account.

13. No 4 heroin on the other hand is suite a different substance. It is no more realistic to value No 4 heroin by reference to the retail price of No 3 it is to compare quantities of the one with the other. One would literally to comparing chalk with cheese. Unless a realistic way of comparing the two substance can be devised there can be no fairness or consistency between possessors of either.

14. A similar problem faced the Court after 1979 when, as these statistics show, there was a very substantial increase in the quantity of heroin base that was seized, ie of mixtures containing esters of morphine as opposed to salts of, esters of morphine In Pravit Pramechit v the Queen [1982] Or App No 665 (unreported), it was recognised that part of the evidential requirements in Suvit were too wide, and that it sufficed if it could to shown, by evidence or admission, "that the seized mixture is capable of being converted into a substance of greater volume" per Silke JA (as he then was). The Court then pointed out that when it came to apply the guidelines in Chan Chi Ming :

"It matters not whether one makes a notional conversion into salts of eaters of morphine and then applies the guidelines directly or adjusts the tariff for salts of esters of morphine and applies the adjusted tariff to the actual quantity of the salt".

15. The considerations there held to apply to the conversion, for the application of the tariff  of the esters of morphine to salts of esters of morphine, apply equally to the conversion of No 4 heroin. Both alternatives are open. We prefer a notional conversion of No 4 to No 3, because however unlikely an event in practice, one scale is preferable to two, and it produces a simple result and a true comparable. We recognise an element of fiction in attributing No 3 retail values to the conversion figure. But if, as we have been told, the real street market is in the USA then the true street value would be its US value. This for many reasons is likely to be very much higher even than the equivalent figure in Hong Kong. So this "value" by "conversion" could be the fairest, and perhaps the only way of arriving, at a Hong Kong value truly comparable to the Hong Kong value for No 3 heroin.

16. For these reasons we conclude that the trial judge should have started from the premise that for the purpose of sentencing and the application of the tariff the applicant was in possession of the equivalent of 23.7 kg of a mixture worth some HK$1.1m.

17. Mr Plowman's next two submissions were mare formidable and can conveniently be taken together. In sentencing the Deputy Judge said that after trial the applicant could have expected "a sentence of something like between 23 and 25 years". He discounted this to 18 years by reason of the applicant's plea of guilty at the earliest possible moment, his cooperation with the police, and the other mitigating factors put before him. Of these the main factor was that it was urged that the applicant had only acted as a warehouseman for the drugs for small reward on behalf of a particular trafficker. Mr Plowman advanced two criticisms. First he said that the starting figure was much too high; second that insufficient weight was given to the applicant's role as a "simple" warehouseman.

18. In support of his attack of the starting figure, Mr Plowman referred us to a number of decisions. These, and others, reveal no consistent pattern and considerable discrepancies. A few examples suffice - in each case the possession was for the purposes of unlawful trafficking :

(1) 12 years was said in Attorney General v Han Mau Fai, (Application for Review no 77 of 1988), No be the appropriate total starting figure on pleas of guilty for one count of trafficking of 0.5 kg and one count of possession of 2 kg. It was a case of packing station possession with only a marginal difference between the two offences.

(2) 12 years was suggested as the possible appropriate sentence for possession of some 16.3 kg of a mixture (which was probably No 4 heroin) in Attorney-General v Chan Chi-yin (Application for Review no 21 of 1987).

(3) 13 years was, held not to be excessive in the case of the 10th defendant Mak Hung in R v Chui lai Ying and Others & Cr App No 406 of 1985). The 10th defendant was involved as boat owner in the transportation of 210 kg of heroin base into Hong Kong. The ringleaders, who were concerned with 2.8 tons of heroin base, received 20 year sentences.

(4) 14 years was suggested as an appropriate starting figure in R v Wong Kin-wan (Cr App No 696 of 1983) for possession of 7.6 kg having the appearance of No 4 heroin.

(5) 15 years was said in R v Yeung Chun Nin and Others (Cr App No 436 of 1985) to be the appropriate sentence after trial for possession of a total of 7 kg.

(6) In R v Chan Wai Shing (Cr App No 557 of 19.87) the Court reduced from 20 to 15 years a retrial sentence for possession of 233 kg. It was significant that at his first trial, when the appellant was in the dock with others involved to a greater extent, the sentence had also been one of 15 years.

(7) 16 years was said in Attorney General v Chan Chi Yin (supra) to be an appropriate sentence after trial for possession of 18 kg.

(8) 18 years was said to be "on the high side" but not manifestly excessive for the offence of manufacturing some 21.5 kg in R v Ng Chi Wai (Cr App No 348 of 1984).

(9) In R v Chan Yo Kuen [1988] 2 HKLR 334 the Court declined to interfere with sentences of 17 and 20 years imposed for possession of 157 kg.

(10) In R v Lau Lun Fu (Cr App No 443 of 1987) the Court declined to interfere with sentences of 20 for possession of between 60 and 70 kg.

It is apparent when the Chan Chi Ming tariff has teen extended into the range of larger quantities there has been more variation than consistency. The problem is highlighted by the multi-defendant cases eg R v Chui Lai Ying and R v Chan Wai Shing. The sentence of 13 years on the 10th defendant in the former case arose from an attempt to deal fairly between the various defendants before the Court, and to distinguish between his role and that of the ringleaders. But it is difficult to resist the conclusion that a man charged alone with possession for unlawful trafficking of the same quantity of heroin base, without the benefit of discount from his co-defendants, would have received a heavier sentence. True fairness must, mean consistency between all offenders whether they stand in the dock alone or with others. It has not been achieved.

19. The problem we think car be summarised as follows.   

(1) We can see no case for abandoning the first general consideration in Chan Chi-ming that quantity "is the most important single factor in determining the proper sentence".

(2) Equally we can see no case for altering or reducing the Chan Chi-ming tariff at the lower end . More headroom cannot to created in that way.

(3) The Chan Chi-ming tariff is for section 7 offences : possession for unlawful trafficking. We accept the truth of Mr Plowman's submission that as a general proposition the criminality of the direct trafficker and of the manufacturer is the greater. It would follow that any section 4, trafficking tariff, or any section 6 manufacturing tariff, would he higher. We also accent that possession for the purposes if section 7 can range between the possession in the context of a packing and distribution centre scarcely distinguishable from trafficking; and possession by a man providing storage space for goods or acting as a courier. Within the limits if the possible these would he relevant factors and create a distinction for sentencing purposes. The appropriate remedy we think would be to apply the section 7 tariff, which is a possession tariff, to the latter; and something close to a trafficking tariff to the former : R v To Shing [1988] 1 HKLR 123, 124I.

(4) Above any section 7 tariff, space must be left for the greater penalties appropriate for the trafficker, the manufacturer, and the importer. In practice this means that the section 7 tariff as such can scarcely go higher than 20 years after trial.

(5) For quantities in excess of 1 kg this produces an available basic range of 8 to 20 years. The question then is can variations between 1 kg and the 60 kg occurring in R v Lau Lun Fu sensibly be accommodated within this range. In judgment out the answer is now shown to be no. This is the path that the Courts have tried to follow but consistency has not been produced because it is not attainable.

(6) It follows in our judgment that "the point at which no very great distinction can be made between particular possessors" in the words of Kempster JA in R v Lau Lun Fu is reached substantially below the figure of 60 kg. Putting the matter another way, a tariff based primarily upon quantity and starting form the Chan Chi Ming base simply "runs our" below 60 kg. To acknowledge this is doing, no more than accepting the practical limitations of such a measure.

(7) This means that for the future :

(a) It must he recognised that the basic tariff expires at a particular point which for the moment we shall call 'X' kg.

(b) For quantities between 1 kg and 'X' kg the sentencing court can and should have regard to both the quantities involved and to the defendants particular role.

(c) For quantities above 'X' kg offenders will know that in the language of Roberts CJ in Chan Chi-ming "they can expect and (will) receive no mercy frog the court". Upor conviction after trial they will face a sentence in the region of 20 years.

20. We cannot avoid putting a figure upon 'X', and we have given anxious consideration as to what it should be. The dominant sentencing principle behind the present tariff is deterrence, and in this respect it would seen to have had little noticeable effect. At the lower end, the tariff recognises, as is the fact, the immense harm that can be done by comparatively small quantities of dangerous drugs. The tariff is based upon a correlation between quantum and harm. Fairness to those in possession of less than 1 kg suggests that those in possession of more, in the range simply of 1 kg to 10 kg, should to dealt with not necessarily proportionately, but at least not significantly more leniently. Put an other way the graph may start to curve at I kg, but the curve should only be gradual. It was considerations such as these we think that persuaded the Court to arrive at starting figures of 12 years in Attorney General v Hang Mau Fai, and of 14 and 15 years respectively in R v Wong Kin Wan, and R v Yeung Chun Min. Indeed it is not easy to criticise this approach which might suggest that 'X' equals 10 kg.

21. On one view we accept that very considerable harm can be occasioned by a quantity of 10 kg. Conversely, in relation to a section 7 possessor, a point is reached where sensible distinctions based upon quantity can no longer be drawn. A point is reached which invites a severe penalty, and at which the possessor cannot complain if someone yet more deeply involved suffers no more. Balancing these considerations as best we can we assess 'X' at 20 kg, and regard that as the cut off figure.

22. If these considerations were applied to this applicant, he, as the warehouseman of the equivalent of 23.7 kg, would face the tariff maximum subject only to his plea of guilty. Having regard to the weight of evidence against him, it might then not have been easy to conclude that his sentence was manifestly excessive. But we are conscious that there is an element of novelty in our view on quantities, and that we may be breaking new ground to his disadvantage perhaps influenced by the statistics. To make all necessary allowance for this, and as an act of mercy, we allow the application, treat it as the hearing of the appeal, and reduce his sentence to one of 14 years imprisonment.