HKSAR v. SO WING ON

CACC 296/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 296 OF 2012

(ON APPEAL FROM HCCC 304/2005)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung CJHC (giving the reasons for judgment of the court):

The facts

1.  This was an application for leave to appeal against sentence out of time.  On 2 February 2006, the applicant was convicted on his own plea of the offence of trafficking in a dangerous drug, namely 25.06 kg of powder containing 21.31 kg of ketamine before Deputy High Court Judge Maggie Poon (as she then was). After hearing mitigation on the same day, the judge, adopting a starting point of 21 years’ imprisonment and giving the applicant the full one‑third discount for his plea of guilty, sentenced him to 14 years’ imprisonment.

2.  The facts were uncomplicated.  The applicant was seen by police officers to have entered a building.  He was stopped when he came out of a unit.  The police used keys found on his person to open the door to the unit and gained entry.  A total of 26 re‑sealable plastic bags of dangerous drugs were found amongst other paraphernalia of packaging, such as electronic scales and a large quantity of re‑sealable plastic bags.  The applicant admitted that he picked up those drugs earlier on and repacked them.  He also admitted that he would deliver those drugs on instructions as he had been promised $2,000 as reward for each successful delivery of 1 kg of the drugs.  The estimated retail value of the dangerous drugs was $5.8 million, and the applicant admitted that he had been aware of the approximate amount of the drugs.

3.  The applicant had three previous convictions, one in respect of robbery and the other two for possession of dangerous drugs.

4.  In mitigation, the court heard that the applicant was then aged 37, and he was originally a delivery worker.  However, he suffered injury to his back and waist and was unable to work.  He was therefore on comprehensive social assistance. He ran into debts and was “in the hands of credit card debt collectors”.  He had a long term girlfriend and planned to get married and it was in those circumstances that he was lured into committing the offence.

5.  In choosing a starting point of 21 years of imprisonment for sentencing the applicant, the judge referred to a number of cases involving ecstasy tablets: HKSAR v Suen Yung Yung, CACC 509/2001, 1 August 2003; HKSAR v Tso Kin Chi, HCCC 410/2000, 5 November 2002; HKSAR v Leung Ka Yin, CACC 145/2005, 1 September 2005.  The judge specifically noted the amount of ketamine involved in the present case. She observed that whilst there was no evidence of importation or manufacturing, which would be aggravating features, it was more than a possession and safekeeping case.  By his own admission, the applicant was prepared to deliver the drugs on instructions.  The paraphernalia inside the flat was consistent with packaging work going on in the unit.  The applicant was, the judge observed, more than a mere participant.  He played a pivotal role and was a forerunner in the nefarious trade of drug trafficking.

6.  Having so taken into account the nature of the offence, the kind of drugs involved and the sentencing authorities and tariff, the judge, as mentioned, adopted a starting point of 21 years, and after giving the applicant the full one‑third discount for his guilty plea, she sentenced the applicant to 14 years’ imprisonment.

The arguments

7.  In this application for leave out of time to appeal his sentence, the applicant referred to two cases where the amounts involved were larger, but the starting points adopted were similar to or the same as the one chosen by the judge in the present case.

8.  The applicant relied on HKSAR v Yeung Kwok‑ming, CACC 224/2007, 31 March 2009.  In that case, the two defendants pleaded guilty to and were convicted of one charge of trafficking in 42.69 kg of ketamine (the first charge).  They were each sentenced to 14 years’ imprisonment.  In other words, a starting point of 21 years was adopted in each case.

9.  The applicant argued that that case, which involved almost double the amount of ketamine, showed that the starting point chosen by the judge in the present case was too high and unreasonable.

10.  The applicant also relied on HKSAR v Wong Kam Chuen (黃錦銓), CACC 75/2012, 6 July 2012.  In that case, the defendant was charged with trafficking in 49.32 kg of powder containing 39.73 kg of ketamine.  He pleaded guilty to the charge.  The sentencing judge took into account the fact that the drugs were found whilst the defendant was driving a container truck across the border into the Mainland.  The judge took that as an aggravating feature and adopted 22 years as the starting point for sentencing.  The defendant was therefore given 14 years and 8 months’ imprisonment, after receiving the one‑third discount.  The Court of Appeal dismissed the application for leave to appeal against sentence out of time.

11.  The applicant argued that as compared with the present case, Wong Kam Chuen was a much more serious one in terms of the amount of ketamine involved and of the aggravating feature present in that case.  Yet, the judge below adopted 21 years, that is, just one year lower than the starting point of 22 years adopted by the sentencing court in Wong Kam Chuen.

Our views

12.  We note that the applicant has provided no reasons for his delay in applying for leave to appeal against sentence, save that Wong Kam Chuen was not decided until last year.

13.  The primary question remains whether in the applicant’s case the sentence was or was not manifestly excessive or wrong in principle.  That goes to both granting an extension of time and giving leave to appeal.

14.  Turning to the merits of the intended appeal, we note that the applicant was sentenced before this court (differently constituted) set new guidelines for ketamine and ecstasy (on 6 June 2008): Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  According to those guidelines, ketamine and ecstasy are not to be distinguished when it comes to sentencing guidelines for traffickers.  Under the guidelines, for over 1 kg of ketamine or ecstasy, the sentence should be 14 years upwards. In the latest case of HKSAR v Sin Chung Kin (單松健) [2013] 1 HKLRD 622; [2013] 1 HKLRD 627 (English translation), this court (differently constituted) stated that the appropriate starting points for trafficking in 2 kg and 3 kg of ketamine should be no less than imprisonment for 18 years and 20 years respectively.  Where more than 3 kg of ketamine is involved, the starting point may exceed 20 years, although the increase in sentence should not be proportional to the increase in drug quantity, and it would be for the sentencing court to pass such a sentence as is appropriate in the circumstances of the particular case.  In Sin Chung Kin, the ketamine involved was 5.12 kg and the starting point of 22 years adopted by the trial judge was not considered to be manifestly excessive.

15.  All this of course does not apply to the applicant’s case, which was pre‑Hii Siew Cheng. Before Hii Siew Cheng, HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 laid down sentencing guidelines for trafficking in ecstasy.  For ecstasy up to 25 g, sentencing was entirely within the discretion of the sentencer; for over 25 to 400 g – 2 to 4 years; for 400 to 800 g – 4 to 8 years; and for over 800 g – 8 years and upwards.

16.  As the judge below rightly recognised, these sentencing guidelines for ecstasy had been applied to ketamine.  And as mentioned, the judge referred to three cases concerning trafficking in ecstasy when considering the appropriate starting point for the present case.  There is no challenge to her reference to those three cases.  Nor is there any suggestion that the respective starting points adopted in those three cases were anything but correct.

17.  Much in the same vein was HKSAR v Yung Ka Kin, CACC 240/2007, 9 January 2008.  There the applicant pleaded guilty to three counts of trafficking in a total of 12.54 kg of ketamine and 2.46 kg of cannabis.  This court (differently constituted) was of the view that the sentencing approach should be to follow the (then) prevailing guidelines laid down for ecstasy in Lee Tak Kwan and the proper starting point for trafficking in 12.54 kg of ketamine was 19 years’ imprisonment.

18.  As for the two cases now relied on by the applicant, in our view, neither case set any precedent or constituted any further guidelines on sentencing.  Each case must be considered on its own facts.  In the present case, as the judge noted, the applicant’s active and pivotal role called for a higher sentence, that is, the applicant’s fingerprints and palm print were found on the packaging paraphernalia; the applicant was a forerunner in the drug trafficking and would deliver the drugs on instructions.  The judge was perfectly entitled to take into account the role and criminality of the applicant in the present case.

19.  On the facts of the present case, we do not consider the  starting point of 21 years to be manifestly excessive. 

Disposition

20.  For these reasons, we saw no merit in this application for leave to appeal against sentence out of time.  It was dismissed accordingly.