HKSAR v. TANG TSZ YAN AND ANOTHER

CACC325/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 325 OF 2010

(ON APPEAL FROM DCCC 747 OF 2010)

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BETWEEN

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JUDGMENT

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

1.  The applicants seek leave to appeal the sentences imposed on them on 31 August 2010 by Deputy District Judge Chainrai, following their pleas of guilty to various charges of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

THE FACTS

2.  The 1^st applicant pleaded guilty to 6 charges of unlawfully trafficking in a dangerous drug and the 2^nd applicant to 5 such charges.  In the case of the 1^st applicant, the offences occurred on and between 28 November 2009 and 4 February 2010.  In the case of the 2^nd applicant, the offences occurred on and between 28 November 2009 and 24 March 2010.  The first offence was committed jointly by the two applicants.  On each occasion the respective applicants sold a particular dangerous drug for a money payment to a young man acting as an agent of the police.  Each of the offences involved the sale of a single dangerous drug, sometimes methamphetamine hydrochloride or ‘ice’ and on other occasions ketamine. 

The role of the 1^st applicant

3.  The young man to whom the dangerous drugs were sold had enrolled in November 2009 as a Form IV student at a secondary school in Tuen Mun, at which the 1^st applicant was a student in the same year.  The 1^st applicant initiated each of the transactions that are the subject of the six unlawful trafficking charges with which she was convicted.  At the outset in late November 2009 (Charge 1) she introduced the 2^nd applicant, describing her as her godmother, as having ‘ice’.  Both applicants were involved in the sale of ice to the police agent on the first occasion.  On two subsequent occasions, namely in December 2009 and January 2010, further sales of ‘ice’ by the 1^st applicant alone occurred.  All three transactions were of relatively small quantities of ‘ice’, namely 0.08 gramme of a crystalline solid (not ‘ice’ itself, but a crystalline solid) containing an unmeasureable quantity of ‘ice’, and 0.24 and 0.68 grammes respectively.  The monies paid for the purchases were $400, $600 and $1,100 respectively. 

4.  Again at the initiative of the 1^st applicant two quantities of ketamine were bought by the police agent from the 1^st applicant on 12 and 25 January 2011 (Charges 4 and 6).  They were 4.25 and 2.49 grammes of ketamine, for which the 1^st applicant received $800 and $820 respectively.  On 4 February 2010, the 1^st applicant arranged the delivery of 1.5 grammes of ketamine to the police agent by another trafficker, the 3^rd defendant in the lower court (Charge 8).  

The role of the 2^nd applicant

5.  Having been involved in the first sale of ‘ice’ to the police agent, at the instigation of the 1^st applicant, the 2^nd applicant sold four further quantities of ‘ice’ to him in the two-month period from 21 January 2010 (Charges 5, 7, 9 and 10).  On the second occasion (Charge 5) contact between the 2^nd applicant and the police agent was again at the instigation of the 1^st applicant. However, on the subsequent three occasions contact between the 2^nd applicant and the police agent was initiated by the 2^nd applicant. 

THE SENTENCES

The 1^st applicant

6.  The sentences of imprisonment imposed on the 1^st applicant were :

Charge 1 :	(0.08 gramme of crystalline solid containing an unmeasured quantity of ‘ice’)	2 years
Charge 2 :	(0.24 gramme of ‘ice’)	2 years
Charge 3 :	(0.68 gramme of ‘ice’)	2 years
Charge 4 :	(4.25 grammes of ketamine)	2 years
Charge 6 :	(2.49 grammes of ketamine)	1 year and 8 months
Charge 8 :	(1.5 grammes of ketamine)	1 year and 4 months

The sentences imposed in respect of Charges 1 to 4 were ordered to be served concurrently, as were the sentences imposed in respect of Charges 6 and 8. However, the sentences imposed in respect of Charges 6 and 8 were ordered to be served consecutively to those imposed in respect of Charges 1 to 4. Accordingly, the total sentence of imprisonment imposed on the 1^st applicant was 3 years and 8 months.

The 2^nd applicant

7.  The sentences of imprisonment imposed on the 2^nd applicant for the five charges of unlawfully trafficking in ‘ice’ were :

Charge 1 :	(0.08 gramme of crystalline solid containing an unmeasured quantity of ‘ice’)	2 years
Charge 5	(0.09 gramme of ‘ice’)	2 years and 6 months
Charge 7	(1.37 grammes of ‘ice’)	2 years and 8 months
Charge 9	(2.13 grammes)	3 years
Charge 10	(0.72 gramme)	2 years and 4 months

The sentences of imprisonment imposed in respect of Charges 1, 5, 7 and 10 were ordered to be served concurrently. However, 1 year of the sentence imposed in respect of Charge 9 was ordered to be served consecutively to the other sentences of imprisonment. Accordingly, the 2^nd applicant was sentenced to a total of 3 years and 8 months’ imprisonment.

THE REASONS FOR SENTENCE

8.  In imposing sentence on the applicants, the judge adverted to the guidelines set out in the judgments of this court in the Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125, and the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for ketamine.  In particular, she observed that the supply of dangerous drugs to a school student was “extremely serious”. 

1^st applicant

9.  Of the 1^st applicant, the judge noted that the total unlawful trafficking involved 1 gramme of ‘ice’ and 8.2 grammes of ketamine. Having noted that the 1^st applicant was 17 years of age at the time of the commission of the offences, the judge that noted she had approached the police agent, a fellow student at school, to invite him to buy dangerous drugs, put him in contact with the 2^nd applicant to obtain those drugs and then on several subsequent occasions effected sale and delivery of drugs to him.  Notwithstanding the fact that the report obtained by the judge prior to sentence stated that the 1^st applicant was suitable for detention in a Training Centre the judge determined that the “interests of the community” required that she be made the subject of sentences of imprisonment. 

10.  For Charges 1 to 4, the judge stated that she took a starting point of 3 years’ imprisonment.  For Charges 6 and 8, the judge took starting points of 2½ years and 2 years’ imprisonment respectively.  The sentences of imprisonment imposed on the 1^st applicant were reduced from those taken for the starting points, in consequence of the 1^st applicant’s pleas of guilty. 

11.  Finally, having regard to a consideration of the totality of sentence, the judge determined that, notwithstanding her finding that the offences were all “separate and distinct offences, warranting consecutive sentences”, that it was appropriate to order only the sentences imposed in respect of Charges 6 and 8 to be served consecutively to the sentences imposed in respect of Charges 1 to 4. 

2^nd applicant

12.  The judge noted that the 2^nd applicant was a 32-year-old mother of a 14-year-old daughter who herself was a Form IV student.  Having divorced the father of her daughter she had remarried, but was separated from her second husband.  She had been in receipt of psychiatric treatment since 2003 and was using medication prescribed for depression.  She and her daughter survived on child support payments from her first husband and welfare payments.  She was the godmother of the 1^st applicant’s younger sister. 

13.  The 2^nd applicant has three convictions for offences of theft, for which she had been made the subject of probation orders.  As the judge observed, she committed the offence the subject of Charge 1 whilst on bail pending the imposition of the third probation order.  The judge determined that immediate custodial sentences were inevitable. 

GROUNDS OF APPEAL AGAINST SENTENCE

1^st applicant

14.  Ms Jane Ho submits that the sentences imposed on the 1^st applicant in respect of Charges 4 and 6 for offences of unlawfully trafficking in 4.25 and 2.49 grammes of ketamine were manifestly excessive in that they were greater than the application of an arithmetic analysis of the guidelines articulated in Hii Siew Cheng.  The starting point for sentence that the judge had identified in respect of Charges 4 and 6, namely 3 years’ and 2½ years’ imprisonment respectively, ought to have been, so she said, 32.7 months and about 28 months respectively.  The appropriate sentence ought to have been arrived at by applying a discount of one third to those starting points for sentence. 

15.  Secondly, it is submitted that the total sentence of imprisonment imposed on the 1^st applicant, namely 3 years and 8 months, was manifestly excessive.  The judge did not articulate her reasons for determining, having regard to the principle of totality, that it was appropriate that the sentences imposed on Charges 6 and 8, be ordered to run consecutively to those imposed in respect of Charges 1 to 4.  Further, the judge did not advert to the total quantity of the two different drugs involved in the six charges, namely about 1 gramme of ice and 8.24 grammes of ketamine.  In argument Ms Ho conceded that there was such a reference by the judge to the total quantity. Ms Ho submitted that if the “combined approach” was taken as the basis for sentence the judge should have had regard to the total quantity of ketamine only, having regard to the insignificant proportion and quantity of ‘ice’ unlawfully trafficked.  Then the appropriate starting point would be about 44 months’ imprisonment (see HKSAR v Yip Wai Yin [2004] 3 HKC 367 and HKSAR v Ho Chak Ming, unreported CACC316/2009, 4 June 2010).  Alternatively, if regard was had to the quantity of the more serious drug, namely ‘ice’, she contended that it would not be appropriate to apply an upward adjustment in respect of the ketamine and the appropriate starting point would be of the order of 40 months’ imprisonment. 

2^nd applicant

16.  It was submitted on behalf of the 2^nd applicant that both the starting points taken for sentence and the sentences imposed upon her in respect of Charges 5, 7, 9 and 10 were manifestly excessive, having regard to the application of an arithmetic analysis of the guidelines articulated in Ching Kwok Hung. 

17.  Secondly, in common with her approach to determining the overall sentence to be imposed on the 1^st applicant, the judge had given no reasons to explain the imposition of a total sentence of 3 years and 8 months’ imprisonment on the 2^nd applicant.  Further, the judge did not advert to the total quantity of ‘ice’ in which the 2^nd applicant had unlawfully trafficked, namely 5.21 grammes.  Again Ms Ho conceded an argument in court that the judge had made such a reference in her Reasons for Sentence.  She contended the starting point for unlawfully trafficking in that amount of ‘ice’ ought to have been about 5 years and 1 month’s imprisonment.  Accordingly, so she submitted, the total sentence of imprisonment that ought to have been imposed upon the 2^nd applicant was 40.7 months. 

A CONSIDERATION OF THE SUBMISSIONS

18.  We readily accept the submission made on behalf of the respondent by Ms Jasmine Ching that approaching the determination of the appropriate sentence on a ‘combined’ or ‘cocktail’ of drugs basis is wholly inappropriate to the circumstances of the applicants.  The judge was not dealing with offences committed on one occasion only.  Rather, she was dealing with multiple offences of unlawful trafficking in a dangerous drug committed over a period of months. 

19.  As this court has said on numerous occasions the guidelines for sentencing in cases of unlawful trafficking in a dangerous drug are not “strait-jackets”.  Aggravating features of the commission of the offence are highly relevant.  Here, of particular relevance is the fact that the unlawful trafficking in a dangerous drug was by way of sales to a Form IV student.  Further, the applicants persisted in that conduct over a number of months, committing multiple offences.  On the other hand, it is important that the appropriate sentence is imposed for each separate offence. 

20.  It is to be noted that the judge took the same starting point, namely 3 years’ imprisonment, for each of Charges 1 to 3, namely of unlawfully trafficking in ‘ice’.  The quantities of ‘ice’ the subject of those charges was relatively small.  In fact, the amount of ‘ice’ unlawfully trafficked in Charge 1 was minute, being unmeasureable.  As this court observed in HKSAR v Yeung Kam Chun (unreported CACC427/2004, 8 March 2005) in respect of unlawfully trafficking in smaller amounts of ‘ice’ the guidelines set out in Ching Kwok Hung do not oblige a judge to take a starting point for sentence of 3 years’ imprisonment noting (paragraph 18) :

“… it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”

Citing those observations with approval, in HKSAR v Lee Yin Yu this court determined that a starting point of 2 years’ imprisonment, rather than 3 years’ imprisonment, was appropriate for a single act of unlawful trafficking in 0.51 grammes of ‘ice’, even where the purchaser was a 16-year-old.

21.  In all the circumstances, we are satisfied that the appropriate starting point to be taken for sentence in respect of Charges 1 to 3 is 2 years’ imprisonment. 

22.  In determining the appropriate sentences to be imposed upon the 1^st applicant in respect of her unlawful trafficking in ketamine (Charges 4, 6 and 8) the factors of aggravation relevant to that consideration were not only the 1^st applicant’s persistence in unlawfully trafficking in dangerous drugs but also the fact that she initiated the sale of a different dangerous drug to the police agent and did so in significant quantities to a Form IV student.  In the result, we are satisfied that in all the circumstances the individual sentences imposed in respect of those charges are not manifestly excessive. 

23.  Apart from observing that the six offences committed by the 1^st applicant were all “separate and distinct offences warranting consecutive sentences” the judge did not explain how she reached her determination in respect of totality. Relevant in that regard, was her decision to order that the sentences of imprisonment imposed in respect of the three offences of trafficking in ‘ice’ and one offence of trafficking in ketamine be served concurrently but that the two other sentences imposed in respect of unlawful trafficking in ketamine be ordered to be served consecutively to the sentences imposed in respect of Charges 1 to 4.  

24.  In our judgment, in the circumstances of this case, it is appropriate to mark the unlawful trafficking in the two separate and different dangerous drugs as drawing concurrent sentences in respect of each different dangerous drug.  We are satisfied that the judge was correct to determine that the sentences imposed in respect of Charges 6 and 8 be ordered to be served consecutively albeit, for the reasons expressed earlier, that they are to be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 3 only. 

25.  For the reasons given earlier, given the unmeasurable quantity of ‘ice’ involved in the unlawful trafficking we are satisfied that the starting point taken for sentence in respect of the 2^nd applicant in respect of Charge 1 was incorrect and that a starting point of 2 years’ imprisonment was appropriate. 

26.  Clearly, the judge was correct to observe that unlawful trafficking in dangerous drugs by way of supply to school students is “extremely serious”.  The culpability of the 2^nd applicant, even having particular regard to her personal circumstances, was clearly all the greater given that she was a mature woman of 32 years of age unlawfully trafficking in dangerous drugs to Form IV school students.  Those factors, taken together with the fact that the 2^nd applicant persisted in unlawful trafficking and initiated contact with the police agent on the occasions the subject of three charges are all factors of aggravation in the commission of the offences.  In result, we are satisfied that neither the individual or total sentences imposed upon the 2^nd applicant are manifestly excessive. 

CONCLUSION

1^st applicant

27.  In the result, we allow the 1^st applicant’s application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentences of 2 years’ imprisonment imposed in respect of Charges 1 to 3 and, in their place, impose sentences of 16 months’ imprisonment in respect of each of those charges.  Those sentences are to be served concurrently.  We make no order in respect of the quantum of sentence imposed upon the 1^st applicant in respect of Charges 4, 6 and 8.  However, we quash the order that the sentence imposed in respect of Charge 4 be served concurrently with those imposed in respect of Charges 1 to 3 and order that the sentences imposed in respect of Charges 4, 6 and 8 be served concurrently.  We order that the sentences imposed in respect of Charges 6 and 8 be served consecutively with the sentences imposed in respect of Charges 1 to 3.  Accordingly, in the result the total sentence imposed upon the 1^st applicant is 3 years’ imprisonment. 

2^nd applicant

28.  We allow the 2^nd applicant’s application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentence imposed in respect of Charge 1 and impose in its place a sentence of 16 months’ imprisonment.  All other orders remain.  Accordingly, the total sentence of imprisonment imposed upon the 2^nd applicant remains the same, namely 3 years and 8 months.