HKSAR v. KI CHUN PONG

CACC 73/2018

[2018] HKCA 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 73 OF 2018

(ON APPEAL FROM HCCC NO 412 OF 2017)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The applicant faced a single charge that, between an unknown day in December 2016 and 10February 2017, both days being inclusive, he had conspired in Hong Kong, together with a person known as “Lam Chai”, to manufacture a dangerous drug, namely Ketamine, contrary to sections 6(1)(a), (2) and 39 of Dangerous Drugs Ordinance, Cap 134.

2.  On 6 November 2017, the applicant pleaded guilty to the charge at committal proceedings before the Eastern Magistrates’ Court.

3.  On 26 February 2018, he confirmed his guilty plea at the High Court before D’Almada Remedios J (“the judge”) and was formally convicted.  Following mitigation by counsel, he was sentenced on the same day to a term of 13 years and 4 months’ imprisonment.

4.  On 20 December 2018, having heard submissions from the parties, we granted leave to appeal and allowed the appeal, substituting for the sentence of 13 years and 4 months’ imprisonment, a sentence of 10 years’ imprisonment.  These are the reasons for our decision.

The facts

5.  In the evening of 10 February 2017, the police executed a search warrant on domestic premises at North Tong Yan San Tsuen, Yuen Long.  The applicant was found in the bedroom of the premises, whilst two others were found in the living room.

6.  Upon a search of the premises, the police found and seized the following items in the bedroom:

(i) 5 plastic bags containing a total of 4,667 grammes of a solid;

(ii) a plastic bag containing 616 grammes of a solid containing 109 grammes of Ketamine narcotic;

(iii) an electronic scale containing 0.07 gramme of a solid containing both Cocaine and Ketamine;

(iv) 26 empty re‑sealable plastic bags.

7.  The applicant was found in physical possession of the door keys to the premises; HK$9,120 in cash; and one mobile telephone.

8.  Having been arrested and cautioned, the applicant said the Ketamine belonged to him and Lam Chai, and that he was responsible to “farr” the Ketamine, which meant that he would mix the Ketamine into what he described as “fake” Ketamine so as to increase their profit.  The notion of “fake” Ketamine is somewhat of a misnomer: it meant adulterated or diluted Ketamine rather than a synthetic substitute.

9.  The landlord of the premises subsequently confirmed that the premises had been rented to someone named Ip Mun Lam since 26 April 2016.

10.  Later, in his first video recorded interview under caution, the applicant made, inter alia, the following admissions:

(1) he and Lam Chai, who was Ip Mun Lam, had started living together in the premises about 2 or 3 months prior to his arrest;

(2) 1 or 2 months before his arrest, Lam Chai had told him that he would be bringing some Ketamine back home, and asked the applicant if he would mix it so as to make “fake” Ketamine, for which he would be rewarded.  He agreed to do so;

(3) accordingly, upon Lam Chai’s instructions, he had adulterated Ketamine on 3 or 4 occasions;

(4) on the first occasion, he had been given 3 to 4 bags of Ketamine, each containing 600 to 800 grammes of Ketamine.  The applicant took 200 grammes of Ketamine out from each of the bags and replaced it with 200 grammes of salt or monosodium glutamate (“MSG”) in each bag.  By doing so, he created an extra bag of Ketamine so as to improve their profit.  Lam Chai was present throughout this process;

(5) Lam Chai then delivered the Ketamine to customers.  Following that first occasion, Lam Chai paid the applicant HK$7,000 in cash;

(6) 2 weeks later, the applicant assisted Lam Chai in a similar way and was given HK$4,000 in cash;

(7) 1 week after that, he assisted Lam Chai for the third time in a similar way and was given HK$7,500 in cash;

(8) the bags of solid seized from the premises, which did not contain any dangerous drugs, were ingredients used to adulterate the Ketamine and consisted of salt or MSG;

(9) the bag of solid containing Ketamine had been returned to them by a customer;

(10) Lam Chai was responsible for getting the adulterating ingredients;

(11) the electronic scale was used for adulterating and weighing the Ketamine.

11.  In a second video recorded interview under caution, during which the police asked the applicant about certain Whatsapp messages and voicemails exchanged between himself and Lam Chai between 9 and 15 December 2016, the applicant admitted that he and Lam Chai were both trafficking in Ketamine together, although he was mainly responsible for adulterating and packing the Ketamine, and taking orders from customers; whilst Lam Chai was mainly responsible for delivering the adulterated Ketamine and sometimes getting the adulterating ingredients from Yuen Long.

12.  As in February 2017, the retail value of 109 grammes of Ketamine narcotic was HK$132,440.

Mitigation

Applicant’s background

13.  The applicant was 22 years old at the time of his sentence.  He had been educated up to Form 3 level and was a casual delivery worker earning about HK$8,000 per month.  He had one previous conviction for assault occasioning actual bodily harm in 2014, for which he had been placed on probation.

14.  It was submitted on his behalf that the method of manufacturing was “primitive” and its scale relatively small.

Reasons for sentence

15.  The judge did not agree with the submission that this was a small scale manufacturing operation, but did accept that the manufacturing process was a simple one.

16.  She referred to the following passage from the judgment in R v Cheung Wai Kwong & Another[1]:

“It is clear that for the offence of manufacturing of dangerous drugs, the quantity of drugs found is of course relevant but this is not the only factor to be taken into consideration. In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.”[2]

She was of the view that, although the manufacturing method was basic, the scale of the operation must have been very large.  She noted, in particular, that 4,667 grammes of solid, whether salt or MSG, were found in the premises, which if used to adulterate the Ketamine narcotic must have contemplated a large quantity of Ketamine mixture for retailing purposes.  On the first occasion, the applicant had mixed 3 to 4 bags of Ketamine containing 600 to 800 grammes.  If one were to take 3 bags and assume an average of 700 grammes of Ketamine, then there were a total of 2,100 grammes of Ketamine involved on the first occasion.

17.  Applying the guidelines in HKSAR v Sin Chung Kin[3], as later confirmed in HKSAR v Chow Yau Ching[4], the judge considered that trafficking alone in approximately 2,100 grammes of Ketamine would merit a starting point of 18 years’ imprisonment.  Since manufacturing dangerous drugs was a more serious offence than trafficking in dangerous drugs, the judge considered that she should enhance the starting point by 2 years, taking the appropriate sentence after trial to 20 years’ imprisonment.

18.  From this notional sentence after trial, the judge gave a full one‑third discount for the applicant’s early plea of guilty and reduced the sentence to 13 years and 4 months’ imprisonment.

Grounds of appeal against sentence

19.  Mr Bernard Yuen, on behalf of the applicant, makes three points on appeal.  First, it is submitted that the judge erroneously treated the 2,100 grammes as Ketamine narcotic, when according to the applicant’s admissions he must have been referring to Ketamine narcotic mixed with the adulterating solid.  The one bag of Ketamine mixture that was seized was analysed to be 616 grammes of a solid containing 109 grammes of Ketamine, which represented a 17.7% Ketamine purity.  Therefore, applying the same purity ratio to the notional 2,100 grammes of mixure or solid produced on the first occasion would yield 371.7 grammes of Ketamine narcotic.

20.  Secondly, Mr Yuen argued that this operation was not of the scale envisaged by the judge and was a very basic one, which simply involved further adulterating Ketamine with salt or MSG for the purposes of trafficking.

21.  Thirdly, he argued that the applicant should have been given some consideration for the fact that but for the applicant’s admissions, the prosecution would have known nothing about the scale and method of the conspiracy and operation.

Respondent’s submissions

22.  Ms Chan Sze Yan, for the respondent, conceded at the outset of the appeal that when the applicant referred to the 600 to 800 grammes manufactured on the first occasion, he must have been referring to the resultant mixture not the Ketamine narcotic used.  Accordingly, the judge was in error (or, perhaps, led into error) in assuming that the 2,100 grammes manufactured on the first occasion was Ketamine narcotic justifying an application of the guidelines in Sin Chung Kin.  However, she submitted that, although a simple, rudimentary method of manufacturing was involved, it was still a large scale operation, as evidenced by the 4,667 grammes of solid prepared for the process of adulterating the Ketamine.  Moreover, the enterprise had gone on for a significant time and would have continued but for the intervention of the police.  As for the applicant’s role, he was heavily involved in the conspiracy both as a manufacturer but also as a trafficker of the resulting mixture.

Discussion

23.  In HKSAR v Tsang Ka Wing[5], having referred to its earlier decision in HKSAR v Chan Kam Loi[6], this Court said that:

“… where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Those facts, and the inferences and assumptions from which they derive, will vary from case to case. We would add that, unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence”.

24.  The evidence from which the inferences and assumptions could be derived in the present case were the bag of Ketamine mixture and the large quantity of solids seized at the premises, together with the applicant’s admissions as to his role in the conspiracy.  From that evidence, it could be established that there were three separate occasions when the applicant had adulterated Ketamine, for which he had been paid HK$7,000, HK$4,000 and HK$7,500 respectively.  However, one of the bags of adulterated Ketamine had been returned by a customer and was subsequently found to contain 109 grammes of Ketamin narcotic, representing a purity level of 17.7%.  If one assumes that the manufacturing conducted by the applicant involved a dilution process resulting in this sort of purity level, then the quantity of Ketamine involved on the first occasion of manufacturing would have been 371.7 grammes of Ketamine in 2,100 grammes of mixture.

25.  Ms Chan has realistically and responsibly conceded that the judge should have worked on a figure of 371.7 grammes rather than 2,100 grammes of Ketamine narcotic in respect of the first incident of manufacturing, but points out that there were two more occasions of manufacturing over a roughly two‑month period.  If one assumes a lesser quantity of Ketamine narcotic was involved on the second occasion, when the applicant was paid HK$4,000, but a greater quantity was involved on the third occasion, when the applicant was paid HK$7,500, then one can assume that the overall quantity of Ketamine narcotic must have been in the region of 1,000 grammes.  Indeed, the presence of 4,667 grammes of salt or MSG suggests that a considerably greater volume of manufacturing was anticipated by the conspirators.

26.  If we refer back to the factors cited in Cheung Wai Kwong & Another above[7], it is also clear that the applicant’s role, whilst being rewarded for his part in the enterprise, went beyond the process of manufacturing.  Whilst the applicant was mainly responsible for the manufacturing, whilst Lam Chai was mainly responsible for trafficking to customers, he admitted in his second video recorded interview that he also participated in trafficking.

27.  In our judgment, the appropriate sentence after trial, on the particular facts of the present case, should have been 15 years’ imprisonment.  We arrive at that figure by reference to the guidelines for trafficking in Ketamine set out in Secretary for Justice v Hii Siew Cheng[8], namely 14 years’ imprisonment in respect of 1,000 grammes of Ketamine narcotic.  We then increase that starting point for the fact that this is a case of manufacturing, which generally requires a greater sentence than for trafficking.  However, we temper what might otherwise have been the increase by acknowledging the rudimentary nature of the manufacturing process and the fact that but for the applicant’s admissions, it would have been difficult to establish its level and extent.

28.  From that notional sentence after trial, we would give the applicant a full one‑third discount for his early plea, and reduce the sentence to 10 years’ imprisonment.  Accordingly, the applicant’s sentence will be reduced from 13 years and 4 months’ imprisonment to 10 years’ imprisonment.

Post‑script

29.  Before leaving this case, we wish to point out that the problem that arose in this appeal would not have arisen if the Summary of Facts drafted for the committal proceedings, which served as the basis of the sentence by the judge in the High Court, had distinguished between Ketamine narcotic and Ketamine mixture; or if either prosecuting counsel (who was not Ms Chan) or defence counsel (who was not Mr Yuen) had properly clarified the matter with the court at the time of sentence.  It is trite law that judges must sentence in cases of trafficking in a dangerous drug according to the quantity of the particular narcotic.  However, in common parlance, defendants, police officers, counsel and judges often refer to a dangerous drug in its adulterated, mixed form as Ketamine, or “Ice”, or Heroin, or whatever it may be.  This can lead to confusion when it comes to determining what exactly is the quantity on which the sentence is to be based in cases of manufacturing or conspiracy, where the precise quantity of narcotic may be unknown.  We note that a similar problem had, in fact, arisen in Tsang Ka Wing[9].

30.  To be fair to the judge in the present case, she was faced with a statement in the Summary of Facts, which read “On the first occasion, the defendant had with him 3‑4 bags of Ketamine, each containing 600‑800 grammes of Ketamine”.  During mitigation, the judge queried what this meant and received an ambiguous answer from defence counsel that it was indeed a large amount of Ketamine “… but, on the other hand, the defendant’s role is in mixing it”.  That begged the question whether the applicant was mixing 600 to 800 grammes of Ketamine narcotic, or 600 to 800 grammes of a mixture containing Ketamine narcotic.  As Ms Chan realistically concedes, having looked at the full context of the video recorded interview, which was not before the judge, it must have meant the latter.

31.  With respect, neither defence nor prosecuting counsel at the trial below gave the judge the assistance she required on sentence and she was effectively led into error by the way the Summary of Facts was drafted and the case was handled in the court below.  It has been left to this Court to unravel the true factual basis of the plea, which we were able to do, with Mr Yuen’s submissions and Ms Chan’s entirely proper concession, so as to do justice to the case against the applicant.

32.  As we have indicated, and for the above reasons, the applicant’s sentence is reduced to 10 years’ imprisonment.

[1] R v Cheung Wai Kwong & Another [1997] HKLRD 344, at 348F-G.

[2] Reasons for Sentence: Appeal Bundle, pp. 7S-8D.

[3] HKSAR v Sin Chung Kin [2013] 1 HKLRD 627.

[4] HKSAR v Chow Yau Ching [2014] 2 HKLRD 639.

[5] HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, at paragraph 33.

[6] HKSAR v Chan Kam Loi (unrep., CACC 410/2012, [2014] HKEC 176.

[7] At paragraph 16.

[8] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[9] HKSAR v Tsang Ka Wing, at paragraph 38.