HKSAR v. NG TAK HUNG

HCMA 1074/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1074 OF 1999

(ON APPEAL FROM WSC 6335 OF 1999)

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JUDGMENT

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1. The appellant was convicted after trial by Mr LAM Wai-kuen, a magistrate at the Western Magistracy, of unlawfully trafficking in a dangerous drug, namely, 12 plastic bags containing a total of 254.83 grammes of cannabis. The cannabis was herbal cannabis, as distinguished from cannabis resin. The appellant admitted possession of the dangerous drug but disputed that he trafficked in it. At the conclusion of the trial, after finding him guilty of trafficking, the Magistrate passed a sentence of 18 months' imprisonment on him. It is against the sentence that the appellant now appeals.

2. The trial was conducted in Cantonese, but counsel for both parties before me agreed to have the appeal argued in English, because a number of relevant authorities in English were to be cited in some detail.

3. The facts relevant to sentence as found by the Magistrate are that the appellant was intercepted at the ground floor of his residence by police officers who brought him back to his residence for a search. From his person, two bags of cannabis were found. Ten other bags of cannabis were found inside his room. In one of the bags, there were 36 resealable plastic bags of the same size of 4 inches by 5 inches, and four smaller resealable plastic bags of about 1 inch in length. In his cautioned statement which the Magistrate ruled to have been voluntarily made by him to the police, the appellant admitted that he bought 15 bags of cannabis for $5,000, for the purpose of consuming them personally and also for sale to his friends at the price of $800 a bag. He had already sold three bags to his friends, and was in the course of taking the two bags found on him to sell to a friend, but this time at a total of $800 for the two bags.

4. The Magistrate considered three cases on sentence, namely AG v CHAN Chi-man [1987] HKLR 221, The Queen v LARM Tat-ming, Crim App No 427 of 1992 (19 February 1993, unreported) and AG v TUEN Shui-ming and Another [1995] 2 HKCLR 129. He came to the conclusion that the appropriate sentence was 18 months' imprisonment which he imposed on the appellant.

5. Counsel's arguments on the appropriateness of the sentence revolved around the said three authorities and AG v Dil Bahadur Gurung [1995] 1 HKCLR 237. Whether the sentence is manifestly excessive depends on the review of these authorities, which were all decisions of the Court of Appeal.

6. CHAN Chi-man that was decided at the end of 1986, involving possession of methaqualone for the purpose of unlawful trafficking, was the first case by which the Court of Appeal set a sentencing tariff for possession of cannabis resin for the purpose of unlawful trafficking after reviewing a number of authorities on the subject. The tariff was on the basis of conviction after a plea of not guilty (see p 227I of the report). The bands of tariff relevant for consideration in respect of the present case were those for the smallest quantities, namely,

(a) under 500 grammes - as the court thought fit;

(b) over 500 grammes - 4-8 months; and

(c) over 1,000 grammes - 8-16 months.

7. It is also relevant to consider what the Court said regarding the three forms of cannabis, at pp. 224I to 225A of the report, as follows:

"So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil.

The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol.

The concentration of tetrahydrocannabinol in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin, tetrahydrocannabinol concentration is about 15%. In cannabis oil, it is 60%.

It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly."

8. The next case in time was LARM Tat-ming, decided in February 1993. The applicant there was convicted on his own plea of trafficking in 826.2 grammes of herbal cannabis. He was involved in selling the cannabis to undercover police officers. The Court of Appeal expressed that on the basis of CHAN Chi-man, if the dangerous drug was cannabis resin, the starting point sentence would be somewhere in the region of 8 months of imprisonment. However, the Court said at pp. 4-5 of the judgment:

"... But Chan Chi Man did not go on to consider direct trafficking by persons who were in the business of trafficking. Further, there does not appear to have been any evidence presented to the court in 1987 of the incidence of cannabis usage or of cannabis trafficking. We found ourselves in some difficulty because we consider the tariffs set out in Chan Chi Man to be ludicrously low when applied to those who traffick. We are expressly not considering mere possession of the drug.

In granting leave and allowing the appeal as we did, we bore in mind the 'business of trafficking' aspect of this case which we thought should be reflected in any sentence to be imposed, whatever the tariffs might be, and it was for that reason that we arrived at the quantum of 12 months imprisonment.

We thought the court to be in urgent need of assistance for the purpose of generally revising the tariff sentences set out in Chan Chi Man for cannabis. That would obviously be for another occasion. ..."

9. In Gurung that was decided over 14 months after LARM Tat-ming, where the respondent pleaded guilty to possessing 29,496.72 grammes of a resinous substance containing 2,140.49 grammes of tetrahydrocannabinol ("THC"), he was sentenced by the trial judge to three and a half years' imprisonment. Upon the Attorney General's application for review, the Court of Appeal refused to interfere with the sentence. In the judgment, the Court referred to the case of R v Nguyen Mahn-hung, Crim App No 314 of 1992 (unreported), where the applicant had pleaded guilty to trafficking in 40,318.7 grammes of herbal cannabis, he was sentenced to 5 years' imprisonment and the sentence was not disturbed on appeal.

10. Regarding the tariffs in CHAN Chi-man, the Court explained that they appeared "ludicrously low when applied to those who traffick" because it was thought that CHAN Chi-man was not considering direct trafficking by persons who were in the business of trafficking.

11. The most recent authority is TUEN Shui-ming, decided in June 1995, where both respondents pleaded guilty to unlawful trafficking in 51,230.45 grammes of cannabis resin containing 1,174 grammes of THC and they were each sentenced to imprisonment for two years, after the trial judge adopted a starting point of three and a half years of imprisonment. The Attorney General applied to review the sentence and requested the Court of Appeal to recast the tariffs set by CHAN Chi-man. The Court opined that a starting point of seven years would have been appropriate and that could properly have been varied to six years given the very low concentration of the THC. Regarding the request to recast the CHAN Chi-man tariffs, the Court at p. 135(17)-(44) of the report said:

"We are not persuaded by the material placed before us that trafficking in cannabis presents such a major problem that the tariff in Chan Chi-man must be wholly recast. We do, however, given that 500 grammes of either herbal cannabis or cannabis resin will produce 2,500 cigarettes, consider that a judge's sentencing discretion in the lower bands is inappropriately inhibited by it. We are satisfied that bands (a), (b) and (c) should be deleted and replaced by a single band as follows:

'Under 2,000 grammes - up to 16 months'

We do not consider any change should be made to bands (d), (e), (f) and (g).

It is clear from the evidence before us that the concentrations referred to in Chan Chi-man are no longer correct. We are satisfied that a sentencing court must now bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis and that cannabis oil has an average also about four times higher than the average in cannabis resin. Taking this into account a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should, as we have already indicated, be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin. ... These observations are not meant to fetter the judges' discretion particularly in the first band. Tariffs, as we have said in the past, are not a straight jacket. A judge must bear the tariff in mind when sentencing but must, in the outcome, arrive at a sentence which gives proper weight to the facts of the case before him. For example, selling cannabis in any form to children might well warrant a sentence well in excess of that suggested by the guidelines."

12. Bearing in mind the CHAN Chi-man tariff as revised by TUEN Shui-ming, and the other authorities cited above, the following are the most relevant facts and law for consideration regarding the appropriate sentence for the appellant:

(a) The appellant trafficked in 254.83 grammes of herbal cannabis.

(b) The quantity of herbal cannabis was the total weight of the 12 bags of cannabis that he was found to possess.

(c) He had bought a total of 15 bags for $5,000 for self-consumption and also for sale when he needed money.

(d) He had already sold three bags at $800 each and but for the police interception was in the course of selling two bags at the total of $800 to his friend.

(e) He possessed 40 resealable plastic bags to facilitate his future sale.

(f) The altered tariff that for possession for the purpose of trafficking a quantity below 2,000 grammes of cannabis resin, the sentence should be up to 16 months of imprisonment (CHAN Chi-man as revised by TUEN Shui-ming).

(g) An offender in the business of trafficking in cannabis should be dealt with more seriously than one in possession for the purpose of trafficking (LARM Tat-ming).

(h) The average concentration of THC in cannabis resin is four times that in herbal cannabis (TUEN Shui-ming).

(i) The cannabis trafficked in this case could be made into 1,250 cigarettes (based on 2,500 cigarettes from 500 grammes mentioned in TUEN Shui-ming).

(j) The applicant in LARM Tat-ming was given a sentence of 12 months' imprisonment by the Court of Appeal for trafficking in 826.2 grammes of herbal cannabis to which he pleaded guilty.

13. While the Magistrate was correct not to regard the tariffs set by CHAN Chi-man as revised by TUEN Shui-ming or the other authorities as a strait jacket, he did not appear to have fully taken into account the matters listed above when imposing the sentence of 18 months on the appellant. Indeed, he had taken into consideration other matters which were not borne out by any evidence before him. He said the harm that could be done by the cannabis in which the appellant was convicted of trafficking would be no less than a small packet of heroin, but the profits that could be derived from the cannabis would far exceed a small quantity of heroin. He also expressed the view that those who bought heroin for consumption were already too addicted, whereas those who bought cannabis for consumption would be ignorant young people who were curious. Cannabis would therefore open the door to drug abuse by these young people. He considered that trafficking in 250 grammes of herbal cannabis was not less culpable than trafficking in a small quantity of heroin, and the latter would normally attract a sentence of 18 months' imprisonment after trial. He then passed the same sentence on the appellant.

14. There was no evidence before the Magistrate as to the harm that cannabis would do to the drug abuser. Nor was there any material to prove that selling cannabis to young people would introduce them to abuse harder dangerous drugs. There was simply no basis for the Magistrate to have entered into a comparison between the harm that could be done by cannabis and that by heroin. It is in this respects that I am of the view that the Magistrate had erred.

15. Moreover, although the tariffs set by the Court of Appeal are not to be treated as a strait jacket of the Magistrate's discretion in sentencing, it is important that the sentencing courts do follow the general direction of such tariffs, for otherwise there would be inconsistent treatment of offenders of the same or same kind of offence, generating uncertainty and grievance about inequality. Despite the reference to three of the relevant authorities, the Magistrate did not seem to follow them, but went on to consider the seriousness of the appellant's offence and compared it with trafficking in a small quantity of heroin.

16. Since the sentence was based on error, I will have to decide on the proper sentence to be meted out for the appellant. I share the view of the Magistrate and Mr Ma for the respondent that trafficking in a dangerous drug, whatever it may be, is serious. However, considering all the circumstances of this case, following the tariffs set by CHAN Chi-man as revised by TUEN Shui-ming, and using the sentence in LARM Tat-ming as a guideline, I am of the view that the appropriate sentence should be one of nine months' imprisonment, and that the sentence of 18 months' imprisonment is manifestly excessive. I therefore allow the appeal and set aside the sentence imposed by the Magistrate, and substitute therefor one of imprisonment for nine months.