HKSAR v. LAM CHEUK HEI

CACC 7/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 7 OF 2017

(ON APPEAL FROM DCCC NO 600 OF 2016)

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REASONS FOR JUDGMENT

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1.  On 15 December 2016, the applicant pleaded guilty before HH Judge A Kwok (“the judge”) in the District Court to a charge of unlawfully trafficking in multiple dangerous drugs as particularised in the charge sheet, namely (i) 22.01 grammes of a mixture containing 17.88 grammes of heroin hydrochloride; (ii) 0.15 gramme of a solid containing cocaine; (iii) 1.90 grammes of a crystalline solid containing 1.87 grammes of methamphetamine hydrochloride (commonly known as “Ice”); and (iv) 0.74 gramme of a powder containing 0.40 gramme of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, he was sentenced to 4 years and 8 months’ imprisonment.

2.  On 5 January 2017, the applicant filed a Notice of application for leave to appeal (“Form XI”) applying for leave to appeal against his sentence.

The facts

3.  On 16 March 2016, at about 3:30 pm, in the course of a dangerous drugs operation at No’s 32-40 Fuk Tsun Street, Tai Kok Tsui, Kowloon, the police intercepted the applicant, who was sitting in the driver’s seat of a private car parked outside the G/F of Fuk Ming Building. Upon a search of the vehicle, a brown messenger bag was found on the front passenger seat containing:

(a)  4 red-lined transparent re-sealable plastic bags.  Subsequent examination revealed that in the first bag, there were 29 pellets (in red plastic sheet wrappings), containing 3.94 grammes of a mixture containing 3.18 grammes of heroin hydrochloride (Exhibit 1); in the second bag, there were 40 pellets (in red plastic sheet wrappings), containing 5.40 grammes of a mixture containing 4.34 grammes of heroin hydrochloride (Exhibit 2); in the third bag, there were 31 pellets (in blue plastic sheet wrappings), containing 4.67 grammes of a mixture containing 3.81 grammes of heroin hydrochloride (Exhibit 3); and in the fourth bag, there were 49 pellets (in blue plastic sheet wrappings), containing 8.00 grammes of a mixture containing 6.55 grammes of heroin hydrochloride (Exhibit 4)[1];

(b) 2 transparent re-sealable plastic bags.  Subsequent examination revealed that one bag contained 0.06 grammes of a solid containing cocaine (Exhibit 5) and the other bag contained 0.09 grammes of a solid also containing cocaine (Exhibit 6)[2];

(c)  2 other transparent re-sealable plastic bags.  Subsequent examination revealed that one bag contained 0.76 grammes of a crystalline solid containing 0.75 grammes of “Ice” (Exhibit 7), while the other bag also contained 1.14 grammes of a crystalline solid containing 1.12 grammes of “Ice” (Exhibit 8)[3]; and

(d)  1 silver metallic cylinder (attached to a key chain and keys) containing what was later confirmed to be 0.74 grammes of a powder containing 0.40 grammes of ketamine (Exhibit 9)[4].

4.  Upon a search of his person, the applicant was found to be carrying $1,226 in cash and four mobile telephones.

5.  The applicant was duly arrested and cautioned, whereupon he told police that the drugs belonged to him, and asked for a chance.  Those admissions were subsequently recorded in a police notebook, which the applicant signed.

6.  In a cautioned video-recorded interview conducted on 17 March 2016, the applicant said, inter alia, that:

(a)  He bought all the drugs for his own consumption;

(b)  He mostly consumed heroin – about two to seven pellets per day;

(c)  He did not have a fixed place of abode, or family or partner.  Instead, he would rent a different hotel room every few days;

(d)  Prior to the arrest, he had just checked out of a hotel in Tai Kok Tsui; and

(e)  The cash ($1,226) found on him was from his salary.

7.  The total retail value of the above dangerous drugs was HK$17,143.

8.  Notwithstanding his claim at para 6(a) supra, the applicant accepted when he pleaded guilty that he was in possession of the above dangerous drugs for the purpose of unlawfully trafficking in them.

Mitigation

9.  The applicant was 35 years of age at the time of his sentence.  He was unemployed at the time of arrest and had previously worked as a construction site worker.

10.  It was said that the applicant was an experienced blood donor and had also registered as an organ donor.

11.  It was also submitted that some of the dangerous drugs in question were for the applicant’s own consumption.  In this connection, whilst the applicant had said under caution that “he mostly consumed heroin – about two to seven pellets per day”, it was first put on his behalf that he had “a dependency on heroin”[5] and that he “mainly took heroin”[6], then that he was an abuser of “a range” of dangerous drugs[7], then that the applicant was “by far mainly an “Ice” addict”[8] and, finally, that only the “Ice” was for his own consumption[9], whilst acknowledging that the “Ice” only accounted for a small quantity of the total amount of drugs[10].

12.  Counsel did not, at his own or the judge’s behest, address the court as to the appropriate starting point to be adopted in the circumstances.

Reasons for Sentence

13.  In passing sentence, the judge noted that the applicant had 17 previous convictions, of which five were for offences directly related to possession of dangerous drugs.

14.  The judge noted that the subject matter of the charge involved four kinds of dangerous drugs and that amongst them, heroin accounted for most of the overall quantity, whilst “Ice” was the most serious drug in terms of potency.

15.  The judge also noted that an individual approach and a combined approach to sentencing were both available to him in the circumstances.  He then referred to the applicable guidelines set out in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256; R v Lau Tak Ming and Others [1990] 2 HKLR 370; Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69; and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  In the result, the judge adopted the combined approach and calculated the base starting point as follows:

“The most serious kind of dangerous drugs is “Ice” and there is 1.87 grammes of “Ice” in this case. According to the guidelines, it carries a starting point of 3 years. Taking into account the presence of the other three different kinds of dangerous drugs, with the most quantity being heroin (17.88 grammes), according to the guideline, that alone will attract a starting point of 6 years’ imprisonment. I shall therefore use 3 years as the basic starting point and then enhance this starting point by taking into account the different quantity of the dangerous drugs involving heroin, cocaine and ketamine. In the end, I add 4 more years to reflect the present quantity of these three different kinds of dangerous drugs. Thus, the basic starting point before any deduction would be 7 years’ imprisonment.”

16.  The judge went on to say that, while he accepted that the applicant “might be a habitual user of “Ice” ”[11], nevertheless, having regard to the relevant factors identified by the Court in HKSAR v WongSuet Hau & Another [2002] 1 HKLRD 69, he was not satisfied that any part of the “Ice” was for the applicant’s own consumption.

17.  Giving the applicant a full one-third discount for his plea of guilty, the judge imposed a sentence of 56 months’ (or 4 years and 8 months’) imprisonment on him.

Grounds of appeal against sentence

18.  Mr Carl Yuen, on behalf of the applicant, takes issue with both the base starting point of 3 years’ as well as the enhancement of 4 years’ imprisonment, which represents a 133% increase in the base starting point.  He complains that the judge failed to apply the so-called “absurdity test”, “conversion test” and “ratio test”, or reduce the sentence on account of his claimed own consumption of part of the “Ice”.

19.  Whilst accepting that trafficking in a variety of different dangerous drugs would call for an enhancement in sentence, he argues that the level of enhancement should not exceed the base starting point.

The respondent’s submissions

20.  In his written submissions, Mr Prakash Daryanani, for the respondent, set out the different starting points, which he has calculated in accordance with the so-called “absurdity test”, “conversion test” and “ratio test” respectively, as follows:

	Calculation	Starting point
Absurdity test	Notionally adding up all drugs to arrive at a total of 20.3 grammes of “Ice”	7 years and 8 months
Conversion test	Converting all drugs (except cocaine and ketamine which could not be so converted) into “Ice” to achieve the figure of 6.25 grammes of “Ice”	6 years and 4 months
Ratio test	The starting point of each drug on the basis 20.3 grammes of narcotic × ratio: “Ice”: 7 years and 8 months × 0.92 Cocaine: 5 years and 9 months × 0.07 Heroin: 5 years and 9 months × 0.881 Ketamine: 4 years and 6 months × 0.2	5 years and 11 months

21.  Mr Daryanani invites the Court to disregard the starting point calculated under the conversion test, because it could not take into account the cocaine and ketamine.  Further, he postulates the following aggravating features:

(a)  The applicant was trafficking in multiple dangerous drugs (Mr Daryanani contends that a 3-month enhancement would be appropriate, for which contention he relies on HKSAR v Law Num Chun [2014] 5 HKLRD 500;

(b)  The multiple dangerous drugs consisted of, amongst others, “Ice” and ketamine (Mr Daryanani submits that an extra enhancement of 2 months would be appropriate, although he accepts that the figure is of his own devising); and

(c)  The applicant had 5 previous convictions relating to possession of dangerous drugs.

22.  Of the claim that some of the “Ice” was for the applicant’s own consumption, Mr Daryanani emphasises that the judge did not accept such a claim, having given defence counsel notice that he was not minded to accept it in the absence of evidence from the applicant; an opportunity that was offered but not taken up.

23.  As to whether being a regular blood donor and/or potential organ donor is a valid mitigating factor, he submits that its value must be limited in sentencing for an offence as serious as drug trafficking.

Consideration

24.  I can deal with the submission that the judge should have given the applicant a discount for his claim that he consumed some of the drugs himself very easily.  It seems clear that the applicant changed his position during mitigation[12]. The judge, having pointed out that the applicant had told the police in his record of interview that he “mostly consumed heroin”, whereas in his antecedent statement said he was addicted to “Ice”, stood the matter down for counsel to take instructions from the applicant.  When the court resumed, the judge was told that the applicant was “an habitual user of dangerous drugs”.  The judge was still not satisfied and enquired about the dangerous drugs involved in his previous convictions and whether the applicant was going to give evidence on the matter.  Counsel’s final position on behalf of the applicant was that “(the applicant) does not want this court to delve into his previous DATC reports”, that only the “Ice” was for the applicant’s own consumption and that he would not be entering the witness box.

25.  Against this shifting background, and without the applicant giving evidence on the matter, it is hardly surprising that the judge did not accept that any of the “Ice” or any other dangerous drug was for the applicant’s own consumption.  Furthermore, the judge gave reasons why he considered, notwithstanding that the applicant may have been a habitual user of “Ice”, he did not accept that this particular quantity of “Ice” was for his own consumption.

26.  I do not see that it is reasonably arguable that the Court of Appeal should now be obliged to accept, on the basis of shifting assertions from the Bar table unsupported by evidence, which the applicant was given the repeated opportunity but declined to give, that any of these drugs in the applicant’s possession were for his own consumption.

27.  Accordingly, the appeal comes down to a question of arithmetic, an assessment of the starting point and the aggravating and mitigating factors affecting the starting point.  The largest quantity of dangerous drugs involved was heroin.  Applying the relevant guidelines in R v Lau Tak Ming and Others, and leaving aside the unquantified narcotic element of cocaine, to which the Lau Tak Ming guidelines would also apply, the starting point would have been 5 years and 7 months’ imprisonment in respect of 17.88 grammes of heroin hydrochloride.  The most potent dangerous drug involved was “Ice”.  Applying the relevant guidelines in HKSAR v Tam Yi Chun (No 2), the starting point would have been 3 years and 1 month’s imprisonment in respect of 1.87 grammes of “Ice” narcotic.

28.  Mr Yuen makes the point that by taking a base starting point of 3 years’ imprisonment (in fact, arithmetically, it should have been 3 years and 1 month’s imprisonment) for the most potent drug (“Ice”) and adding a further 4 years’ imprisonment (in fact, it would have been 3 years and 11 months’ imprisonment) for the drug of the largest quantity (heroin) and the others, the judge has enhanced the base starting point by 133%, which was in itself a manifestly excessive enhancement.  However, he was not able to produce any authority impugning such an enhancement in proportion to the base starting point, and it seems to me that the suggested anomaly of such a large enhancement is inevitable where, in multiple drugs cases, the quantity of a very serious drug (in this case, heroin) is much greater than the quantity of the most potent drug (in this case, “Ice”).

29.  Conversely, if one were to use the quantity of heroin to gauge the base starting point, the starting point for 17.88 grammes of heroin narcotic would be 5 years and 7 months’ imprisonment (not 6 years’ as the judge suggested[13]). As Mr Daryanani points out, using the so-called “ratio test”, if the heroin was taken as the base starting point and the “Ice”, cocaine and ketamine used to enhance that starting point, the notional sentence after trial would likewise have been 5 years and 11 months’ imprisonment.  The question of further enhancement for other aggravating features would then have to be considered, and the ultimate question would be whether the enhanced starting point of 7 years’ imprisonment was justified.

30.  The danger of a strictly arithmetical approach can be that it sometimes obfuscates aggravating features.  Indeed, the very act of converting all the drugs into the same notional drug can obscure the fact that there were in fact no less than four drugs being trafficked, which is an aggravating feature in this sphere of criminal sentencing: see HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011, 13 February 2012); HKSAR v Wan Lau Mei [2014] 4 HKC 75.  That was the respondent’s complaint, for example, in HKSAR v Chan Wing, Toby (unrep., CACC 288/2016, 27 June 2017): see para’s 27 and 30.

31.  Apart from trafficking in four different types of dangerous drug, the applicant was also trafficking in a particularly potent combination of drugs, namely “Ice” and ketamine: see HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542, at para’s 30-32; HKSAR v Chan Yuk Leong (unrep., CACC 318/2013, 8 April 2014), at para 25.  However, I recognise that this latter factor should not perhaps be given too great an emphasis in view of the relatively small quantities of each drug concerned.

32.  I do not accept the proposed figures of Mr Daryanani’s suggested enhancements for such features, nor do I believe that the Court has intended to prescribe any particular enhancement where such aggravating features are present.  Every case will be different, and will depend on the quantities of the various dangerous drugs concerned and the circumstances of their trafficking.

33.  When one looks at the circumstances in which the applicant was trafficking in various quantities of “Ice”, heroin, cocaine and ketamine, the question ultimately comes down to whether it is reasonably arguable that an overall starting point of 7 years’ imprisonment was manifestly excessive or wrong in principle, bearing in mind that four different kinds of dangerous drugs were being trafficked, thus catering to a wider market of customers.

34.  As for the matter of the applicant being a blood and potential organ donor, I cannot see that this can affect an otherwise proper sentence for an offence as serious as drug trafficking, where the courts are particularly concerned with passing deterrent sentences and achieving consistency by reference to sentencing guidelines.

35.  I have come to the view that it is reasonably arguable that the overall starting point (duly enhanced) is on the high side. Whether that translates into a manifestly excessive starting point and ultimate sentence, so as to warrant the Court’s interference, or whether it represents a starting point and ultimate sentence at the higher end of the acceptable range of sentences open to the judge, will be for the Court of Appeal to determine. On that basis I shall grant leave to appeal.

36.  However, I do not give leave on the basis that the judge should have discounted the sentence for the assertion that the “Ice” was for the applicant’s own consumption, which assertion, for the reasons I have discussed, was rightly rejected by the judge.

37.  Accordingly, the applicant will only have leave to argue Ground 5(i), (ii) and (iii) of his perfected grounds of appeal dated 7 April, 2017.

[1] Exhibits 1-4 formed item (i) in the particulars of the charge.

[2] Exhibits 5-6 formed item (ii) in the particulars of the charge.

[3] Exhibits 7-8 formed item (iii) in the particulars of the charge.

[4] Exhibit 9 formed item (iv) in the particulars of the charge.

[5] Appeal Bundle, p 20M.

[6] Appeal Bundle, p 21E.

[7] Appeal Bundle, p 25E-F.

[8] Appeal Bundle, p 29G-H.

[9] Appeal Bundle, p 28I-L.

[10] Appeal Bundle, p 29L-N.

[11] Reasons for Verdict, para 21: Appeal Bundle, p 14.

[12] See para 11 (supra).

[13] Appeal Bundle, p 12O-Q.