HKSAR v. LEUNG KA HO

CACC304/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 304OF 2007

(ON APPEAL FROM DCCC 650 OF 2007)

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REASONS  FOR  JUDGMENT

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

1. T he applicant (D2) was among 10 defendants facing charges before Deputy District Judge Ada Yim.  He pleaded guilty to four counts of trafficking in a dangerous drug (Charge 9, Charge 10, Charge 15 and Charge 20), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2. The judge sentenced him to a total of 22 months’ imprisonment as follows :

(1)     Charge 9 — six months;

(2)     Charge 10 — six months, two months to run concurrently with Charge 9;

(3)     Charge 15 — six months; and

(4)     Charge 20 — six months.

6 months on Charge 9, 4 months on Charge 10, 6 months on Charge 15 and 6 months on Charge 20 to run consecutive to each other.

3. The applicant applied for leave to appeal against sentence.  At the conclusion of the hearing we granted leave to appeal, treated the application as the appeal proper and allowed the appeal to the extent that the total sentence was reduced from 22 months to 18 months.  We now give our reasons.

The facts

4. The admitted facts can be shortly stated.  The applicant and the other defendants were arrested as a result of an undercover operation by the police, with three policemen (PW1, PW2 and PW3) posing as customers at a disco.  The defendants (including the applicant) were involved in the sale of dangerous drugs to the undercover policemen on different occasions.

5. As far as the applicant was concerned, he sold ketamine to PW2 on three occasions and to PW1 on one occasion.  On 21 March 2007, the applicant acted in concert with D1 and sold a packet of ketamine (0.16 grammes) to PW2 (Charge 9).  An hour later the applicant alone sold another packet of ketamine (0.22 grammes) to PW2 (Charge 10).  Then on 29 March 2007, the applicant sold yet another packet of ketamine (0.22 grammes) to PW2 (Charge 20).  On 24 March 2007, the applicant sold a packet of ketamine (0.26 grammes) to PW1 (Charge 15).

Reasons for sentence

6. In sentencing the applicant, the judge referred to the case of HKSAR v. Leung Chun Fung, CACC373 of 2002 and adopted the same tariff for ecstasy (i.e. Lee Tak-kwan [1998] 2 HKLRD 46) in dealing with the sentence for trafficking ketamine.  Having considered the quantity involved, and the authorities of HKSAR v. Lau Chi Chung, HCMA295/2002 and HKSAR v. Wong Kwok Hung, CACC225/2002, the judge considered the appropriate starting point for each charge being 6 months.  She then considered the applicant’s previous convictions (three for trafficking in a dangerous drug and two for possession of dangerous drug) and increased the starting point to 9 months as the applicant was a “repeated offender”.  The judge then gave the applicant the usual 1/3 discount and passed a sentence of 6 months each for the four charges.  After considering totality, the judge ordered partly concurrent and partly consecutive sentence to achieve the end result of 22 months.

Grounds of appeal

7. The sole ground of appeal advanced by Mr David Boyton, counsel for the applicant, was that the total sentence of 22 months was manifestly excessive.  Mr Boyton has no quarrel with either the original 6-month starting point or the increased 9-month starting point imposed by the Deputy Judge.

8. Mr Boyton placed heavy reliance on the total amount of dangerous drugs involved in the four charges (0.86 grammes of ketmaine).  He referred to the authority of Lee Tak Kwan adapted for the sentencing of ketamine trafficker : for the trafficking of up to 25 grammes the sentence is entirely within the discretion of the judge, for the trafficking of 25 to 400 grammes the sentence is one between two to four years.  Mr Boyton submitted that a sentence of 22 months was equivalent to a starting point of 33 months, which would have placed the sentence in the 25 to 400 grammes tariff band.  Mr Boyton submitted such a sentence is prima facie manifestly excessive.

9. Mr Boyton referred to HKSAR v. Yip PikKwai [1999] 3 HKLRD 42 and submitted that the normal practice is to sentence a defendant on the total quantity of dangerous drug rather than on individual smaller quantities.  He also prayed in aid the judgment of the Court of Appeal in HKSAR v. Yu Wang Tim, CACC191/2002, where Stock JA said (page 3, para. 8) :

“What the judge should have done when looking at totality was to look at the total quantity of the drugs.  That would have provided him with an overall starting point of …”

10. Mr Boyton also submitted that the judge erred in principle by imposing wholly consecutive sentences on three of the four charges.  Alternative, the judge erred in only reducing two months of the 24 months sentence to reflect totality.  The judge did not appear to have taken into account the applicant sold the dangerous drug at the same location and mainly to the same undercover policeman, Mr Boyton submitted.

11. Bearing in mind the criminality involved Mr Boyton submitted that an overall starting point of two years would have been proper in all the circumstances.

Respondent’s response

12. Mr Tam Sze Lok for the respondent submitted the approach to sentencing a defendant who sold drugs to an undercover agent on a number of occasions should be that adopted in the case of HKSAR v. Lai YauFat, CACC278/2000.  Mr Tam submitted the first step is to fix a starting point to each charge, having regard to the tariff and any aggravating factors; the second is to decide on an overall sentence, bearing in mind the combined weight of the narcotic contents, the pleas and totality; and finally, to order the sentences to run concurrently and/or consecutively to achieve the overall sentence.

13. Mr Tam particularly pointed out that the total narcotic contents in Lai Yau Fat was 0.31 grammes, which, according to the tariff set down in Lau Tak Ming [1990] 2 HKLR 370 called for a sentence of two to five years (for trafficking up to 10 grammes).  The Court of Appeal did not consider the trial judge’s adoption of a three-year starting point for each of the four charges to be in error, though the Court of Appeal was of the view that the overall sentence of 4 years 3 months imposed was too heavy and substituted it with one of 3½ years. 

Discussion

14. So far there is no sentencing guidelines for ketamine and the courts have been adopting the ecstasy sentencing guidelines in Lee Tak Kwan in sentencing ketamine trafficker (see HKSAR v. Chu Ching Tak, HCCC164 of 2001, HKSAR v. Chan Wai Keung, Danny, HCCC267/2001 and HKSAR v. Mok Yiu Kau [2007] 4 HKC 586).

15. No issue has been taken in relation to the adoption of a nine-month starting point for each of the four offences.  The only issue is on totality.

16. Indeed, according to Lee Tak Kwan, the sentence for trafficking up to 25 grammes of ecstasy was entirely within the discretion of the trial judge, while the trafficking between 25 to 400 grammes the sentence was between two to four years.

17. The total quantity of ketamine involved (0.86 grammes) is certainly way below the 25-gramme threshold.  However, the combined weight is only one consideration to be borne in mind when sentence was being considered (see Lai Yau Fat).

18. The facts of Yip Pik Kwai and Yu Wang Tim are quite different from the present case.  In Yip Pik Kwai, the defendant was intercepted by the police upon complaint made by a resident, different parcels of dangerous drugs (ice and heroin) were found inside a bag carried by the defendant.  Yu Wang Tim concerned a classic stop-and-search situation. A certain quantity of drugs was found on the defendant’s person.  Search of the defendant’s place of abode immediately upon arrest yielded another quantity of dangerous drug.  In our view, when considering what the Court of Appeal has said in those two cases, one must bear in mind the circumstances of the offences.

19. Here, the facts are quite different.  The applicant sold ketmaine to the undercover police on four different occasions, albeit the first two occasions were on the same date and to the same undercover policeman.  On the first occasion the applicant was acting in concert with another person when he sold the ketamine to the undercover police (Charge 9), an hour later he sold another packet of ketamine to the same officer.  Bearing in mind all the circumstances, the sentence imposed for Charge 10 should be made partly concurrent with Charge 9.  Charge 15 and Charge 20 were totally separate offences —— though committed in the same disco and to the same officer on one occasion, ordering these two sentences to run consecutively to those imposed for Charge 9 and Charge 10, at least in principle, is justified.

20. However, when one considers the totality principle, bearing in mind the circumstances of all the offences; the total weight involved; and the applicant’s previous record, we are of the view that a total sentence of 22 months was manifestly excessive.  A total sentence of 18 months would properly reflect the criminality involved.

21. To achieve this result, we set aside the sentences imposed and substitute the following :

(1)     Charge 9 – six months;

(2)     Charge 10 – six months; 

(3)     Charge 15 – six months; and

(4)     Charge 20 – six months.

Sentences of Charges 9 and 10 to run concurrently, all other sentences to run consecutively, making a total of 18 months.