R. v. TUEN Shui Ming and Another

IN THE COURT OF APPEAL

Application for Review
1994, No.12

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is an application by the Attorney General for review of sentence pursuant to s.81A(1) of the Criminal Procedure Ordinance, Cap.221. The application is to review sentences passed on the two respondents on 29th November 1994 by Bewley, J. after pleas of guilty to a joint charge of trafficking in dangerous drugs contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance. Each of the respondents was sentenced to imprisonment for two years.

2. The particulars of the count were that they "on the 19th day of January 1994 in Hong Kong unlawfully trafficked in a dangerous drug, namely 51,230.45 grammes of cannabis resin containing 1,174 grammes of tetrahydrocannabinol." "Tetrahydrocannabinol", which is the psychoactive ingredient in cannabis will be referred to hereafter as 'THC".

3. The 2nd respondent pleaded guilty before Leonard J. on 19th October 1994 and indicated that he was prepared to give evidence for the Crown at the trial of the 1st respondent. In consequence the sentencing of the 2nd respondent was adjourned until 22nd November 1994. Both respondents appeared before Bewley J. on that day when the 1st respondent also entered a plea of guilty.

4. It was admitted that on 19th January 1994 at about 3:30 p.m. a team of police officers on surveillance at the Leung King Estate Carpark saw the 1st respondent looking into the boot of a private vehicle No.FU8950. After the boot had been closed the police officers approached the 1st respondent and revealed their identity. He then admitted that he had rented the vehicle and the keys to it were seized from him. The boot was opened and two large white nylon bags containing the drugs were found. The 1st respondent admitted to collecting the cannabis from Ah Wong at Shenzhen Railway Station two days before. He said that after it arrived in Hong Kong he and the 2nd respondent transferred it to the vehicle to await collection from a person named "Wong Man". He then led the police to a nearby restaurant where they apprehended the 2nd respondent.

5. Before sentencing the trial judge was referred, inter alia, to Attorney General v. Chan Chi-man [1987] HKLR 221, which sets out a sentencing tariff for offences of trafficking in cannabis as follows:

"Suggested tariff for possession of cannabis resin

Taking the above factors into consideration, we have thought it right to suggest a tariff for possession of cannabis resin, for the purpose of unlawful trafficking. This will be two-thirds of that which has already been prescribed for the possession of opium. This would produce the following range of sentences, though the scale goes further in quantity than that which has been so far applied for opium:

(a)	Under 500 grammes - as the court thinks fit;
(b)	Over 500 grammes - 8 months;
(c)	Over 1,000 grammes - 8-16 months;
(d)	Over 2,000 grammes - 16-24 months;
(e)	Over 3,000 grammes - 24-36 months;
(f)	Over 6,000 grammes - 36-48 months;
(g)	Over 9,000 grammes - 4 years upwards.

So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil.

The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol.

The concentration of tetrahydrocannabinol in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin, tetrahydrocannabinol concentration is about 15%. In cannabis oil, it is 60%.

It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly."

He said when sentencing:

"Both defendants were responsible for importing into Hong Kong over 5 kilogrammes of cannabis resin. It is a large quantity but, compared to previous cases in this court, the percentage purity is exceptionally low - 2.29%. This is something that the court can properly take into account in assessing sentence.

Applying the guidelines suggested by the Court of Appeal with this percentage purity in mind, the proper starting point for sentence should be 3½ years' imprisonment."

He went on to say:

"The main mitigating factor in this case is the guilty plea. I also bear in mind that neither defendant has received any reward. They were unsuccessful couriers.

The 1st defendant's culpability is greater. He arranged the shipment and recruited the 2nd defendant, a farmer in China. On the other hand he assisted the police by telling them, on his arrest, where the 2nd defendant could be located but for which the 2nd defendant would almost certainly have escaped.

I do not distinguish between them for sentencing purposes and I sentence each defendant to two years' imprisonment."

The trial judge gave the 1st respondent credit for assisting the police but does not appear to have given the 2nd defendant any credit for his offer to give evidence for the Crown. That offer may well have occasioned the eventual plea by the 1st defendant when the matter came on again for hearing before Bewley J.

6. Bewley J. had in front of him statements from Inspector G.A. Brown of the Narcotics Bureau of the Hong Kong Police, of Mr. Hung Chi-wai, Government Chemist, and of Ms. Szeto Ng Yee-wa, Customs and Excise Department. This material was furnished following an indication given in The Attorney General v. Dil Bahadur Gurung Application for Review No.13 of 1992, in which the Court of Appeal suggested that such material be placed before a trial court so that the judge could consider the tariff in Chan Chi-man, state, if he so thought, why there should be review of the tariff and indicate what order he would have made had he not been bound by that authority. Bewley J. declined to give any such indication.

7. As can be seen from the passage set out above Bewley J. when sentencing the respondents stated that they had imported into Hong Kong "over 5 kilogrammes of cannabis resin". This was clearly wrong. They had in fact imported over 50 kilogrammes. The Attorney General, through Mr. Saw, suggests that the sentence of 3½ years was imposed because the judge wrongly thought that he was dealing with 5 kilogrammes. It is, however, difficult to see how this could be so as the application of band (e) of the tariff in Chan Chi-man would have produced a sentence after plea of considerably less than 3½ years.

8. Mr. Dykes, who appears for both respondents, suggests, however, that the words "over 5 kilogrammes" were slip of the tongue or a transcription error and that the judge was in no doubt as to the amount with which he was dealing.

9. A party alleging such a slip or error should seek to ascertain the real position by inquiry of the Registrar or, if necessary, of the judge, through his clerk. Had this been done a great deal of time would have been saved in the present appeal. There would have been no need to hear argument upon alternative possibilities nor to have given consideration to them in this judgment.

10. The percentage concentration of THC in the present case was 1,174/51,230 x 100 = 2.29%. This is considerably lower than the percentage referred to in Chan Chi-man, i.e. "about 15%".

11. It is the argument of Mr. Dykes relying on the penultimate paragraph in the passage set out above, that the tariff in Chan Chi-man is concerned with the concentration of THC in the cannabis and not with the total volume. He contends that the judge correctly applied the tariff by first ascertaining the percentage of THC in the cannabis seized, i.e. 2.29%, and then calculating, by reference to the 15% concentration referred to in Chan Chi-man, the sentencing band into which cannabis with that concentration fell. The calculation is 2.29/15 x 51,230 = 7,821. Mr. Dykes submits that this figure, for the purpose of sentencing, must be taken to be the amount involved and that as this figure falls squarely within the (f) band of 36 to 48 months the judge rightly took a starting point of 3½ years.

12. We have no hesitation in rejecting this argument. The court in Chan Chi-man was plainly dealing with the total volume of cannabis resin and that is the amount to which the tariff applies. If, for example, 9,000 grammes was seized, then the appropriate starting point would be 48 months. It would be proper for the sentencing court then to adjust that figure to a limited extent in accordance with the concentration of THC. In the present case, given that more than 50 kilogrammes was involved, seven years would have been an appropriate starting point. This could properly have been varied to six years given the very low concentration.

13. By the time we deliver this decision both of the applicants will have served the sentences originally imposed upon them. Bearing in mind the principles this court enunciated in The Attorney General v. Wong Kwok-wai (1991) 2 HKLR 384, we are satisfied that a further reduction of two years would be appropriate. The application will be allowed and the original sentence of two years imprisonment will in each case be varied to one of four years.

14. We come now to the second part of the Attorney General's application in which he asks that this court review "the sentences for full scale trafficking in cannabis". Further material has been placed before this court in which Inspector Brown, Mr. Chan Man-fai and Mr. Chan Pik-keung have expanded upon their earlier statements which were placed before Bewley J. The Attorney General contends that the problem of trafficking in cannabis is much more serious now than it was when the tariff was laid down and that it should accordingly be adjusted.

15. Inspector Brown of the Narcotics Bureau of the Royal Hong Kong Police Force stated that cannabis finds its way onto the market in three forms - herbal cannabis, cannabis resin and cannabis oil. The last is, however very rarely seen in Hong Kong. Herbal cannabis is known as "marijuana" and cannabis resin is known as "hashish". Herbal cannabis because it is bulky, is usually imported into Hong Kong by sea whereas cannabis resin, which is much less bulky, is often smuggled into the territory by air. The current wholesale price of herbal cannabis is $13,000 per kilogramme. As at August 1994 the wholesale price of cannabis resin was $23,400 per kilogramme. The Inspector exhibited the following table of seizures:

"Year	Herbal Cannabis	Cannabis Resin
1986	52.54 kg	38.82 kg
1987	270.48 kg	14.50 kg
1988	40.54 kg	14.16 kg
1989	382.10 kg	53.54 kg
1990	2,350.20 kg	45.40 kg
1991	89.00 kg	83.70 kg
1992	2,982.90 kg	33.60 kg
1993	457.40 kg	44.00 kg
1994	3,248.52 kg	80.03 kg
1995	701.24 kg	5.24 kg
(January to April)
Total	10,574.92 kg	412.99 kg"

This shows, overall, a substantial increase in the amount of herbal cannabis being seized since 1986 but, it is to be noted, that there are substantial drops in 1991 and 1993. The amount of cannabis resin seized doubled between 1986 and 1994 but the increase was not sustained in each year and indeed the high point was reached in 1991. The Inspector also exhibited a table of arrests as follows:

	"All Cannabis Offences:
Year	Total number of arrests
1986	91
1987	149
1988	338
1989	577
1990	522
1991	585
1992	602
1993	1,135
1994	1,077
1995 (January to February)	313"

This shows an increase up to 1993 with a slight drop off in 1994. Of importance is the Inspector's statement that cannabis is mainly sold in entertainment centres, e.g. bars, dancehalls, ballrooms, nightclubs, massage parlours and karaoke bars, and that detection of cannabis transactions at retail levels is relatively difficult.

16. Mr. Chan Man-fai, a forensic scientist of the Government Laboratory, stated that the concentration of THC in herbal cannabis is mostly influenced by the plant and the degree of cultivation and that climate also plays a part. He said that in Hong Kong the typical percentage concentration levels of THC in recent herbal cannabis preparations analysed fell into the range of 0.8% to 2.5%, giving an average of 1.73%. This percentage is, however, only a rough approximation given the method of analysis used for herbal cannabis. He said that cannabis resin seizures submitted for analysis between January 1993 and April 1995 yielded a percentage THC concentration which ranged from 0.26% to 18.37% with an average of 6.65%. The THC content in cannabis resin was, therefore, 3.84 times stronger than in herbal cannabis. He said that cannabis oil, which is rarely encountered in Hong Kong, was reported to have a concentration range of 10 to 30%. He stated that 500 grammes of cannabis resin would make up to 2,500 cigarettes and that 500 grammes of herbal cannabis would make the same number but that the cannabis resin cigarettes would be approximately 4 times more concentrated in THC content than the herbal cannabis cigarettes.

17. Mr. Chan Pik-keung, a statistician with the Narcotics Division of the Government Secretariat, stated that the percentage of drug abusers reported to abuse cannabis ranged from 3.4% to 5.8% in the past five years and that cannabis after heroin was the second most popular drug of abuse. He stated that the proportion of persons under 21 years reported to abuse cannabis had been high but was declining. It had gone down from 31.6% in 1990 in a steady decline to 18.5% in 1994.

18. We are not persuaded by the material placed before us that trafficking in cannabis presents such a major problem that the tariff in Chan Chi-man must be wholly recast. We do, however, given that 500 grammes of either herbal cannabis or cannabis resin will produce 2,500 cigarettes, consider that a judge's sentencing discretion in the lower bands is inappropriately inhibited by it. We are satisfied that bands (a), (b) and (c) should be deleted and replaced by a single band as follows:

"Under 2,000 grammes - up to 16 months"

We do not consider any change should be made to bands (d), (e), (f) and (g).

19. It is clear from the evidence before us that the concentrations referred to in Chan Chi-man are no longer correct. We are satisfied that a sentencing court must now bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis and that cannabis oil has an average also about four times high than the average in cannabis resin. Taking this into account a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should, as we have already indicated, be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin. Should offenders be discovered with cannabis oil and we think an increase of at least that length would be warranted. These observations are not meant to fetter the judges' discretion particularly in the first band. Tariffs, as we have said in the past, are not a straight jacket. A judge must bear the tariff in mind when sentencing but must, in the outcome, arrive at a sentence which gives proper weight to the facts of the case before him. For example, selling cannabis in any form to children might well warrant a sentence well in excess of that suggested by the guidelines.

20. We recast the guidelines as follows:

"The suggested tariff for possession of cannabis resin for the purpose of unlawful trafficking is:

(a)	Under 2,000 grammes - Up to 16 months
(b)	Over 2,000 grammes - 16 to 24 months
(c)	Over 3,000 grammes - 24 to 36 months
(d)	Over 6,000 grammes - 36 to 48 months
(e)	Over 9,000 grammes - 4 years upwards"