HKSAR v. WUT YIU LUN AND ANOTHERS

[English Translation – 英譯本]
CACC 251/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 251 OF 2006

(ON APPEAL FROM DCCC NO. 732 OF 2005)

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REASONS FOR JUDGMENT

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

Background

1.  The 1^st Applicant Wut Yiu Lun (hereinafter “D1”) and the 2^nd Applicant Tsang Chi Mei (hereinafter “D2”) were charged before Deputy Judge Wong of the District Court with the following offences:

Charge 1 (against D1 and D2)

“Trafficking in a substance purported to be a dangerous drug”, contrary to section 4A(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.

Charge 2 (against D1 and D2)

“Trafficking in dangerous drugs” (namely 2 tablets containing a total of 0.01 gramme of N, N-dimethylamphetamine; 4 milligrammes of methamphetamine, 0.06 grammes of 3, 4-dimethylamphetamine and 0.05 grammes of 3, 4-methylenedioxy-methamphetamine), contrary to section 4(1)(a) and (3) of the abovementioned Dangerous Drugs Ordinance.

Charge 3 (against D1)

“Trafficking in a substance purported to be dangerous drug”.

Charge 4 (against D1)

“Trafficking in dangerous drugs” (namely 3 tablets containing a total of 0.01 gramme of N, N-dimethylamphetamine; 7 milligrammes methamphetamine, 0.09 grammes 3, 4-dimethylamphetamine and 0.08 grammes 3, 4- methylenedioxy-methamphetamine).

2.  D1 pleaded guilty to the 4 charges and was sentenced to 3 years’ imprisonment.

3.  D2, who pleaded not guilty, was convicted after trial and sentenced to 3 years’ imprisonment.

4.  Both Defendants applied for leave to appeal against sentence.  After hearing, we made the following orders:

D1

5.  As the Judge had mixed up the charges in sentencing by swapping the sentences for Charges 1 and 2 and swapping the sentences for Charges 3 and 4, we allowed the application for leave, treated it as the appeal itself and allowed the appeal formally.  The sentences were altered to 6 months for Charges 1 and 3 (to be served concurrently) and 2 years for Charges 2 and 4 (to be served concurrently).  One of the 2 years for Charge 4 is to be served consecutively to the 2 years for Charge 3, making a total term of 3 years.

D2

6.  The application for leave to appeal was allowed and treated as the appeal itself. The sentence for Charge 2 was set aside and replaced with 2 years’ imprisonment, to be served concurrently with the sentence for Charge 1, making a total term of 2 years.

7.  We now set out the reasons for our judgment.

Facts of the case

8.  The facts indicated that on 3 December 2004, during an anti-drug operation at Cyber 8 Disco, D2 told an undercover police officer (“the undercover”) that there were “ketamine” and “fing tau”/“head-swinging pills” for sale at $100 each.  The undercover told D2 that he would like to buy 3 “ketamine” and 2 “fing tau”/“head-swinging pills”.

9.  Thereafter, D2 led the undercover to Table No. 53.  After re-confirming the type and quantity of dangerous drugs the undercover wanted to buy, D2 called another person.  D1 arrived soon afterwards.  D2 introduced D1 to the undercover as her partner.  D1 took out the dangerous drugs from his pants and handed them to the undercover.  The undercover handed $500 to D1.  D1 indicated that the undercover could contact him through D2 in future.  D2 concurred and said that she was responsible for looking for customers and D1 was responsible for the trading, and they did business at the Disco once a week (Charges 1 and 2).

10.  On 10 December 2004, the undercover visited Cyber 8 Disco again and met D1.  D1 indicated to the undercover that he had “3 ketamine pills” and “3 candies” for sale at $120 each.  After the undercover agreed to buy them, D1 left.  Later D1 returned to the Disco and handed the dangerous drugs to the undercover.  The undercover also handed $720 to D1 (Charges 3 and 4).

Reasons for sentence

11.  In sentencing, Judge Wong considered that the dangerous drugs involved were a “cocktail” mixture of substances, including “ice”, N, N-dimethylamphetamine (NNMDA), 3, 4-dimethylamphetamine (MDA) and 3, 4-methylenedioxy-methamphetamine (MDMA).  After considering the relevant case law, he used the weight of the “ice”, which was the most poisonous of the lot, as the basis for sentencing. He applied the sentencing guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125 and adopted a starting point of 3 years.

12.  For the offence of trafficking in a substance purported to be a dangerous drug, Judge Wong adopted a starting point of 9 months.  He adopted the same starting point for D1 and D2 as they were accomplices.

13.  D1 pleaded guilty and received a one-third reduction in sentence.  As Charges 1 and 2 originated from the same incident, the sentences were to be served concurrently.  The same applied to Charges 3 and 4.  However, as the incidents for the 4 charges occurred on different dates, parts of the sentence were to be served consecutively, resulting in a total sentence of 3 years.

14.  As for D2, who was convicted after trial, the sentences for the offences were 9 months and 3 years respectively, to be served concurrently, making a total of 3 years.

Grounds of appeal

15.  Mr Ng, Counsel for D1, raised the following grounds of appeal:

       (1)        the trial judge erroneously mixed up the sentences for Charges (1) and (2) with those for Charges (3) and (4);

       (2)        the trial judge failed to consider that on the evidence, D1 had no intention to sell “ice”;

       (3)        the starting point of 3 years was manifestly excessive.

16.  Mr Cheng, Counsel for D2, put forward the ground of appeal that the trial judge failed to consider adequately or at all that D2 did not know that the relevant drugs were a mixture of various types of dangerous drugs.

Mixing up of charges

17.  We first deal with Mr Ng’s complaint about the mixing up of the charges by Judge Wong. According to the indictment, Charges 1 and 3 were for “trafficking in a substance purported to be a dangerous drug” and Charges 2 and 4 “trafficking in dangerous drugs”.

18.  In sentencing, Judge Wong analyzed and considered these two distinct offences. Finally, in passing sentence, he indeed mixed up Charges 1 and 2 and also Charges 3 and 4.  However, putting thing in context, it is clear that Judge Wong had adopted a starting point of 3 years for the offence of “trafficking in dangerous drugs” and 9 months for the offence of “trafficking in a substance purported to be a dangerous drug”.  This notwithstanding, we still have to revise the sentence as a matter of formality.

“Cocktail” dangerous drugs

19.  In HKSAR v Yip Wai Yin and Wong Siu Han, CACC 80/2003, the Court of Appeal commented on the sentencing approach for “cocktail” drugs.  The Court considered that a combined approach was fairer and more realistic and reasonable.  Under this combined approach, the sentencer uses the quantity of the most poisonous drug as the basis of sentencing and then, if he considers appropriate, adjusts the sentence upwards to take into account the other milder drugs.

20.  The approach adopted by Judge Wong was obviously that accepted by the Court of Appeal.  He used the quantity of “ice” as the basis of sentencing, applied the sentencing guidelines in Ching Kwok Hung and adopted 3 years as the starting point.  He stated clearly that he had not adjusted the sentence upwards.

21.  Mr Ng submitted that, although the guidelines in Ching Kwok Hung indicated that the sentence for trafficking in less than 10 grammes of “ice” was 3 to 7 years, this did not mean that a starting point of 3 years must be adopted even for trafficking in a small amount of “ice”.

22.  Mr Ng cited the case of HKSAR v Ko Sai Ho, HCMA 837/2001, the facts of which were said to be similar to those of the present case.  The defendant in that case trafficked in dangerous drugs to an undercover police officer on 4 occasions.  On appeal, the Deputy Judge adopted a starting point of 18 months and imposed a total sentence of 2 years.

23.  At the appeal hearing, we pointed out that Ko Sai Ho was a magistracy appeal case and not binding on this Court.

24.  In Ching Kwok Hung, the Court of Appeal laid down the tariff for the offence of trafficking in “ice”.  For trafficking in up to 12 grammes of ice (the Court of Appeal subsequently held in HKSAR v Capitania Edwin F, CACC 28/2004 that “12 grammes” should in fact read “10 grammes”), the sentence is 3 to 7 years.  Although 4 milligrammes (0.004 grammes) is a small quantity, as far as trafficking in “ice” is concerned, the court will still not deviate from the tariff unless there are exceptional factors to the contrary.

25.  Judge Wong took into account the following circumstances in sentencing:

“… Cyber 8 Disco is notorious as a hotspot for selling drugs. Those who abuse cocktail drugs often come across ‘ice’ unknowingly, and by the time they realize it, it is already too late. They find it difficult to tear themselves away from the drug and they harm themselves, their families and society as a whole. In the present case, although the quantity of ‘ice’ involved is small, there are no factors to justify a deviation from the relevant sentencing guidelines…”

26.  In view of the circumstances in which the dangerous drugs were sold in the Disco in question, we agree with the judgment of Judge Wong that there was nothing to justify a deviation from the starting point of 3 years.

27.  As far as D1 is concerned, leaving aside the question of whether he mistakenly believed that the dangerous drugs being sold were relatively mild drugs, a starting point of 3 years for Charge 2 is correct.

28.  As for D2, her situation was in our view slightly different from that of D1.  Although D2 claimed to be D1’s “partner” and told the undercover that she was responsible for “looking for customers”, the evidence indicated that she was actually an “intermediary”.  She had no contact with the dangerous drugs or the money used to buy the drugs, nor was she a courier of the drugs.  In light of her role as an “intermediary”, her culpability was less than that of D1 who actually supplied the dangerous drugs, and the starting point for her should be 2½ years.

29.  On Charge 4, as D1 committed the offence of trafficking in dangerous drugs for a second time within one week, his culpability for Charge 4 was greater than that for Charge 2.  The starting point of 3 years adopted by Judge Wong is not excessive.

30.  Both Defendants do not have previous convictions.  We reiterate that, for serious offences such as “trafficking in dangerous drugs”, a defendant’s clear record does not have a significant bearing on the sentence.  This Court (differently constituted) has emphasized more than once that generally speaking, a clear record is “neutral” unless there is evidence to show that the defendant was previously of “positive good character”, e.g. he had done voluntary work for the community.  There is no such evidence in the present case (see HKSAR v Kita Yasushi & another,CACC 470/2006, HKSAR v Wen Zelang [2006] 4 HKLRD 460, and HKSAR v Leung Shuk Man [2002] 3 HKC 424).

Mistaken belief that the dangerous drugs being trafficked in were of a milder nature

31.  In sentencing for “trafficking in dangerous drugs”, the court may consider as a mitigating factor the defendant’s mistaken belief that he was trafficking in a less serious dangerous drug instead of the one he was actually trafficking in (see R v Bilinski (1988) 86 Cr. App. R. 147, and Yip Wai Yin).

32.  In Yip Wai Yin, the Court of Appeal made it clear that there must be evidence to show that the defendant held this belief.  The court will rarely rely on what the defendant says in mitigation without more.  Unless there is already clear evidence to that effect, the defendant has to prove on a balance of probabilities that he held such belief.

33.  In HKSAR v Ko Man Yin, CACC 65/2005, Yeung JA stated in his judgment that the court did not have to accept the defendant’s claim that he held a mistaken belief as to the nature of the drugs.  If the defendant raises this as a reason for reducing the sentence, he bears the burden of proving on a balance of probabilities that he did misunderstand the nature of the drugs.  An exception is where the prosecution accepts the defendant’s argument or where the argument is supported by prosecution evidence.  Yeung JA also pointed out that the court might conduct a hearing if necessary to decide whether the defendant’s claim was true.

34.  In the present case, D1 never indicated during mitigation that he had mistakenly held that belief.  Nor did he explain why he had not told the Judge about the mistaken belief.  Although D1 did raise this point in his homemade Grounds of Appeal, the fact remains that he had never clearly indicated such belief to the Judge.

35.  The evidence shows that the transaction between D1 and the undercover involved “fing tau” and “candies”.  D1 was selling “fing tau” and the facts indicated that the tablets which contained dangerous drugs were “ecstasy”.  This did not mean that D1, as “seller” and “supplier”, did not know that the “ecstasy” tablets contained “ice”.

36.  In HKSAR v Chan Yiu Hong, CACC 592/2002, Stuart-Moore VP said in his judgment:

‘Fing Tau’ may generally be understood by those in the community to refer to the drug known as ecstasy. However, it is widely known amongst dealers that drugs are often mixed together, whereas buyers may be induced by the use of the term ‘Fing Tau’ to believe that they are buying ecstasy, unaware that they are purchasing a cocktail of drugs which may or may not include ecstasy.

37.  In HKSAR v Li Chi Hung & others, CACC 18/2002, the supplier of the dangerous drugs pleaded not guilty, and the Court of Appeal held that the circumstances of the case were special and, giving the benefit of doubt to the supplier, reduced the starting point by one-fourth on account of the supplier’s mistaken belief that the drugs were milder in nature.  In the present case, D1, who pleaded guilty, had an opportunity to tell Judge Wong about his mistaken belief, but he did not do so.  Nor did he explain to us why he did not do so.  There was also no evidence in the case to indicate that D1 “believed” that he was actually selling nothing other than “ecstasy” (i.e. MDMA) or that he had exercised due care in ensuring that he was indeed selling “ecstasy” rather than a mixture containing “ice”.  In these circumstances, we are unable to give him the benefit of doubt.

38.  As for D2, she pleaded not guilty and elected to give evidence at trial.  She denied having offered to sell dangerous drugs to anyone and claimed that she only talked to the undercover because she thought he was a friend of her friend nicknamed “Chocolate”. She denied having claimed to be D1’s partner and stated that she had only purchased dangerous drugs from D1 on behalf of “Chocolate”, with delivery being arranged among themselves subsequently.

39.  Although D2 had not indicated at trial that she believed the dangerous drugs involved was indeed nothing more than “ecstasy”, we have taken into account that she was not the “seller” or “supplier”, she only played the role of an “intermediary” and she had no contact with the dangerous drugs.  On the facts of the case and on a balance of probabilities, there is evidence to support D2’s mistaken belief that the dangerous drugs in question were milder in nature.  We give her the benefit of doubt.

40.  We must stress that, although the facts as admitted by D1 indicated that D2 would have continued to work with him and supply dangerous drugs to others at the Disco, D2 was in fact convicted on Charges 1 and 2 in respect of the incident on 3 December.

41.  We hold that the starting point should be further reduced by 6 months, i.e. from 2½ years to 2 years.

42.  For the above reasons, we made the relevant orders.