HKSAR v. CHEUNG KWOK LEUNG LOWENCE

CACC 539/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 539 OF 2002

(ON APPEAL FROM HCCC 193/2002)

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J U D G M E N T

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Beeson J (giving the judgment of the Court) :

1. The Applicant pleaded guilty in the Court of First Instance to two charges of Trafficking in Dangerous Drugs and was sentenced, by Mr Justice Nguyen, to a total of 56 months' imprisonment.

2. The sentence comprised 24 months on the first count and 40 months on the second count; 16 months of the sentence on the first count was ordered to run consecutively to the sentence on the second count. The Applicant seeks leave to appeal against those sentences.

Facts

3. The facts to which the Applicant pleaded, showed that police found drugs on the Applicant's person (Charge 1) and after searching his home (Charge 2) on the same day. The drugs relevant to Charge 1 were 100 tablets of mixed methamphetamine and Ketamine. Analysis by the Government Chemist established a total narcotic content of 3.34 grammes methamphetamine and 6.62 grammes of Ketamine.

4. The drugs found at the flat were analysed by the Government Chemist and their nature and quantity were as follows:

(A) 31.5 grammes of Ketamine in a mixture of 52.27 grammes

(B) 95 tablets, each containing a mixture of methylenedioxymethamphetamine and methamphetamine, with a total narcotic quantity of each substance as follows:

(i) 9.51 grammes methylenedioxymethamphetamine (Ecstasy)

(ii) 0.74 grammes of methamphetamine (Ice)

(C) 23 tablets, each containing a mixture of methamphetamine, ketamine and diazepam, with the following narcotic totals:

(i) 0.7 grammes methamphetamine

(ii) 0.2 grammes ketamine

(iii) 0.55 grammes diazepam

(D) 170 tablets and 2 tablet fragments, each containing a mixture of methamphetamine and ketamine, with the following narcotic totals:

(i) 5.78 grammes methamphetamine

(ii) 11.59 grammes ketamine

(E) 5 tablets containing a narcotic total of:

(i) 0.2 grammes nimetazepam

Calculation of Sentence

5. The judge heard lengthy submissions on sentence from the Applicant's counsel, (who also appeared on this application) and was referred to a number of authorities.

6. For Charge 1, the judge sentenced on the Ice component, following the tariff guidelines in Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125. He took a starting point of 3 years and reduced it to 2 years, giving a full one third discount for the Applicant's guilty plea.

7. For Charge 2 he sentenced on the basis of the combined narcotic content, 7.22 grammes, of the Ice component of A, B, C and D. He took 5 years as the starting point and reduced it to 40 months for the plea of guilty. He considered totality and ordered 16 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2. In sentencing he did not take into account the nature, or the narcotic quantity, of the other substances listed in Charge 2.

8. At the time the Applicant was sentenced he was serving sentences totalling 18 months' imprisonment, imposed in the District Court for 2 offences of Trafficking in Dangerous Drugs, committed 4 months after his arrest for these offences and while he was on police bail. The judge ordered the sentences in the instant case to be consecutive to the sentences imposed by the District Court.

9. He considered the present offences were distinct and separate from those offences, albeit of the same type, noted the date of commission and that they were committed while the Applicant was on bail. The judge when sentencing in the instant case referred to the Applicant's being on court bail - the Respondent advised us that, correctly, the Appellant was on police bail at the time. This difference in the nature of bail would not, in our view, have altered the judge's sentence.

Grounds of Application for Leave to Appeal

10. The Applicant's basic ground of appeal is that the total sentence of 4 years 8 months is manifestly excessive and wrong in principle. The perfected grounds of appeal are summarised as follows:

(1) The judge did not apply the proper tariff because he erred in adopting the guideline for the most serious drug of the group of substances, rather than sentencing on the basis of the most significant quantity. The judge failed to consider the overall narcotic content of the drugs as a batch when assessing the starting point for sentence and failed to adopt the tariff for the major ingredient in each count.

(2) The judge erred in not ordering concurrent sentences for Charges 1 and 2, given the close proximity in time and place of those offences.

(3) The judge failed to adopt an overall starting point; failed to consider the total quantity of the drugs before fixing the starting point and adopted a manifestly excessive starting point.

(4) The judge failed to consider the totality principle as applied to the sentences:

(a) passed for Charge 1 and Charge 2 and

(b) erred in ordering that they be consecutive to those passed in the District Court, without considering whether the aggregate sentence of 6 years 2 months was too long.

Applicant's Argument on Appeal

11. The Applicant's counsel enlarged on the perfected grounds which followed the tenor of submissions made to the sentencing judge. Counsel did not seek to dispute the current authorities or tariff guidelines, but argued that the increase in the use of tablets which combined more than one dangerous drug, (a "cocktail" of drugs), called for a new sentencing approach.

12. Counsel submitted, although without being able to support her submission with actual figures or cases, that the new approach she advocated was already in practice in the sentencing courts and should be ratified by this court.

13. Counsel's chief submission is reproduced:

"When there was more than one constituent in the dangerous drugs, the appropriate tariff guidelines to be followed must be determined by the actual composition of the drug. The largest constituent in the drug must be considered to be the major constituent and others be regarded as the mixture constituent. Tariffs for the major constituent should be applied. Within the suggested bands, the court is entitled to make adjustment taking into account the types of mixture, i.e. other constituents, found in the drug."

14. Examples of how this would apply in the instant case were suggested:

(A) solely Ketamine powder, so Ketamine guidelines apply.

(B) MDMA (Ecstasy) guidelines used, with possible adjustment for the Ice component.

(C) Ketamine guideline to be used.

(D) Although Ice was the major component, this parcel should be disregarded in sentencing as it was insignificant in the context of the total quantity of drugs.

(E) to be disregarded.

15. The procedure advocated was that where there was a combination of substances e.g. ketamine powder and Ice and/or a combination of dangerous drugs in tablet form e.g. Ice, Ecstasy and Ketamine, the sentencing court should assess the percentages of narcotic and fix a global starting point on the basis of the largest quantity by weight of dangerous drug, then adjust the sentence arrived at to take lesser quantities into account.

16. Smaller quantities of more potent drugs should be ignored, or subsumed into the total of the most weighty constituent. What might be considered negligible quantities of dangerous drug, as for example the 0.02 grammes of nimetazepam in Charge 2, could be ignored altogether.

17. Counsel for the Applicant submitted that as the greatest constituent part of the dangerous drugs in Charges 1 and 2 was Ketamine, it was that tariff which should govern the starting point. Thereafter there should be a minor upward adjustment, based on the percentages of other narcotic quantities, if considered "significant" quantities.

18. Counsel for the Applicant conceded that if the suggested method was followed to its logical extremes, an offender trafficking in, say, 3000 grammes of Cannabis Resin and a quantity of 10 grammes of Ice, would be sentenced on the Cannabis tariff, with an adjustment of the sentence upwards to take account of the Ice component. This would mean a starting point of 24 months, according to the tariff in Attorney General v. Tuen Shui-ming [1995] 2 HKCLR 129, rather than a starting point of around 7 years according to R v. Ching Kwok-hung [1991] 2 HKLR 125.

19. Counsel did not give examples of how, as a matter of practice, such upward adjustments were to be assessed. When pressed by the court to suggest an appropriate adjustment for the narcotic quantities of the items A, B and C in Charge 2, counsel suggested 18 months be added to the Ketamine starting point of between 2 and 4 years. A lighter sentence would result from adopting that method than would result from a starting point based on the total quantity of Ice in Charges 1 and 2.

Respondent's Argument

20. The Respondent's stance, overall, was that the sentences were reached by an erroneous route but are correct nevertheless, and should not be disturbed.

21. The Respondent conceded Ground 2 of the application agreeing that the sentences for the two charges should have been concurrent. This approach was approved by the Court of Appeal in both HKSAR v. Wong To [2001] 4 HKC 499 and HKSAR v. Chow Yu Chi CACC No. 359 of 2000. (unreported)

22. Similarly, the Respondent agreed with the Applicant that the narcotic quantities for the 2 seizures should have been added together to fix a proper starting point for sentence. In HKSAR v. Chan Pui-chi [1999] 2 HKLRD 830 the Court of Appeal made it clear that,

"the overall narcotic content should be taken into account in order to avoid the unfair result of consecutive sentencing on another count"
per Stuart-Moore VP at 832E

23. The Respondent strongly contested the Applicant's contention that the largest, by which was meant the weightiest, constituent substance, of a "cocktail" of drugs should be the basis for fixing the starting point of a sentence. The Respondent relied on current authorities which stated that sentences for a group of different types of drug should be proportionate to the narcotic content of the drugs.

24. On that basis, the Respondent submitted, the total Ice content, 0.57 grammes, should govern the starting point for these offences. The starting point would be at the lowest end of the range of 7-10 years, based on the guideline in Ching Kwok-hung.

25. By adopting 7 years as the global starting point for the 2 charges and reducing it by one third for a guilty plea, a sentence of 56 months would result. That period was achieved by the judge with separate and partly consecutive sentences.

26. The Respondent, in answering Ground 5, submitted that the judge correctly treated the District Court offences as distinct and separate, particularly as they were committed during the bail period and had properly ordered the two sets of sentence to be consecutive.

Sentencing Consideration

27. The current authorities on sentencing for different parcels of drugs, were decided before the proliferation of designer drugs in the form of tablets containing 2 or 3 separate drug components. In earlier cases where analysis by the Government Chemist showed both narcotic quantity and a 'mixture', the components of the mixture were additives, such as caffeine, used to adulterate the narcotic for the purpose of sale and/or safer ingestion.

28. Now drugs in tablet form commonly comprise two or more dangerous drugs. Examples are seen in item C where the tablets are composed of Ice and Ketamine and item D where the tablets are composed of Ice, Ketamine and Diazepam.

29. The use of drugs in combined form must be addressed by the courts when sentencing. It is simplistic to sentence based on the weightiest component rather than the most serious one, particularly as the purpose of such combination is often to potentiate the effects of the more serious or harmful drug.

30. The question of the effects of combined drugs has been considered in a HCCC 238/2001 HKSAR v. Lan Chung-wai where the court heard evidence from 2 experts on the effects of combinations of dangerous drugs. The court heard the expert evidence of Professor Brian Tomlinson, a Professor in Clinical Pharmacology at the Chinese University of Hong Kong, who stated in a report available to the court, that the effects of the mixture of methamphetamine and ketamine in tablet form would be similar to the effects of the two drugs used separately.

31. In the same report Professor Tomlinson commented:

"... data on the addictiveness of mixtures of these drugs in tablet form are not available so it might be assumed that the addictiveness of the mixture would be similar to that of the most-addictive component."

32. Another expert Dr Chen Char-nie, a specialist in psychiatry with clinical experience in treating drug addiction, gave evidence in the same case about the effect on users of combinations of dangerous drugs, in particular methamphetamine, Ketamine and MDMA (Ecstasy). The judge concluded from Dr Chen's report,

"... that the combination of methamphetamine and ketamine is far more dangerous than either one taken alone."

It is possible to have a doubling effect of euphoria, increased autonomic functions, and hallucinations ... the combination of methamphetamine and ketamine puts the abusers more at risk for physical and psychological harms than either one taken alone."

33. A further factor to be considered is the policy on which the severe sentencing regimen for dangerous drug offences is based. Recent comment on this policy is found in HKSAR v. Wong Suet-hau [2002] 1 HKLRD 69:

"It is the very act of supply, or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked" per Stuart-Moore VP 83J-84A
(emphasis supplied)

34. Counsel in her submissions about 'mixture' appeared to suggest that a sentencing court should treat the mixture components as if they were innocuous additives, rather than acknowledging that the narcotic content of all dangerous drugs in "cocktail" or combination drugs needs to be considered and taken into account in sentencing.

35. Consequent on such consideration the sentencer must deal as best he or she can with the overall narcotic quantity of dangerous drugs, taking the more serious drugs as setting the range for the total and adjusting the sentence upwards for significant quantities of other drugs.

Judgment

Ground 1 and Ground 3

36. The judge was correct in basing his sentence on the narcotic quantity of the most serious drug in the group of dangerous drugs, which was the Ice. However he should have sentenced on the total narcotic quantity for both charges.

37. We have considered the submissions that drug sentencing should be based on the weightiest constituent of any mixture. On the basis of current sentencing authorities such an approach is incorrect and could lead to absurd sentencing results. Requiring the sentencer to take the weightiest narcotic component and adjust the final sentence to take into account significant, but less weighty quantities, of more serious dangerous drugs making up the cocktail, would render nugatory the current sentencing guidelines. We reject this submission.

38. We acknowledge however that it can be a difficult and complex task to sentence offenders who traffick in, or possess quantities of, a number of different drugs. In a case such as the present one the starting point should be based on the total narcotic content of the most serious drug, or drugs where the tariff guidelines are co-equal.

39. The sentencer should examine the nature and quantity of other dangerous drugs in the combination and, where warranted, make an upward adjustment of, say, 4-18 months from the starting point. Whether any such adjustment is warranted will depend on whether other narcotic quantities are sizeable, whether the other drugs come within the same, or lesser tariffs, or whether any adjustment would be pointless, given the starting point adopted or the relevant range of sentence.

40. Where other drugs are in the group, but the quantities are very small, or where their addition to, or inclusion with, other items would not make any difference to the total sentence, the sentencer can, properly, ignore them when computing sentence.

Ground 2

41. The Respondent conceded that on the authority of Wong To (supra) and Chow Yu Chi (supra) the judge could have, and should have, made the two sentences run concurrently, given the proximity of the two offences in time and place. We agree that is the correct approach.

Ground 4

42. On this ground the judge allegedly failed to consider totality in two situations. First, it was said he did not consider the totality principle when sentencing on Charge 1 and Charge 2.

43. This ground has not been made out. The judge took totality into account by making the sentence on Charge 2 run partly consecutively to that on Charge 1. However, as we have indicated, the proper course would have been for the judge to impose sentences from a global starting point and order them to run concurrently.

44. The second alleged failure to consider the totality principle was that the judge ordered the sentences passed in the District Court and the sentences for these offences to run consecutively. In our view this submission is incorrect. The judge was well aware of the total sentence for the District Court case as well as the date on, and the circumstances under, which the offences were committed. He explicitly referred to them when delivering sentence.

45. The judge did have a duty to consider totality but, having done so, was not under any automatic obligation to adjust either set of sentences. After consideration he decided, as he was entitled to do, that the two sets of sentences should be consecutive.

46. We have looked at the totality of sentence for both cases. In our view the total term of 6 years 4 months about which the Applicant complains is not a day too long, given the District Court charges related to repeat offences committed while the Applicant was on bail awaiting trial. There is no merit in this ground.

47. In summation, we agree with the Respondent's submission that the final term of the sentence is correct, although incorrectly assessed. A global starting point based on the Ice component of the two charges should be 7 years imprisonment. A full one third discount is given for the plea of guilty and the final sentence is 4 years 8 months imprisonment. (Although we consider that there could have been an upward adjustment of that sentence to take account of the Ketamine component, we will abide by the judge's view in not doing so.)

48. Accordingly, Applicant is sentenced to 4 years 8 months' imprisonment on each of Charges 1 and 2, those sentences to be concurrent. We confirm the judge's order that these sentences run consecutively to the sentence Applicant is serving for the offences in DCCJ 764/2002.

49. This application for leave to appeal otherwise is refused.