HKSAR v. AMNUAYCHOKE NOPPORN

CACC 441/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 441 OF 2001

(ON APPEAL FROM DCCC 759 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 25 September 2000, the Applicant pleaded guilty in the District Court before Deputy Judge Browne to a charge alleging that the Applicant had trafficked on 5 April 2000 in a mixture containing 15.19 grammes of heroin hydrochloride and 200 tablets containing approximately 3.8 grammes of midazolam maleate. He was sentenced to four years' imprisonment against which he seeks, almost eleven months out of time, leave to appeal.

2. We can say immediately that while there was no good reason which had been provided for the Applicant's lateness in applying for leave, we are disposed, in the exercise of our discretion, to entertain this application on its merits. The facts for these purposes are immaterial.

3. When the judge heard mitigation, he understandably concluded that the "only real mitigation" was the Applicant's plea of guilty. The judge then took five and a half years' imprisonment as an appropriate starting point for the quantity of heroin in this case. So far, in the sentencing process, no criticism could be or, indeed, has been made. The difficulty which Mr Surman, on the Applicant's behalf, has raised is that the judge went on to say:

"You were also found in possession of 200 tablets of midazolam maleate. In my view, the appropriate sentence for that, in addition to the 51/2 years, would be one of 6 months' imprisonment.

So the appropriate starting point in my view would be 6 years' imprisonment. I propose to give you full credit for your guilty plea and the sentence will therefore be reduced to one of 4 years' imprisonment." (Appeal bundle pp. 7-8)

4. Mr Surman, who was not called upon to elaborate upon his grounds of appeal which were generally most articulately set out, submitted that the additional period of six months for the midazolam maleate, which was added to the starting point for the heroin, offended the principle, as he expressed it, that the "sentences imposed in respect of two different types of dangerous drugs ought, following HKSAR v Yip Pik-kwai [1999] 3 HKLRD 42 to have been made concurrent with one another rather than consecutive".

5. In this particular regard, this analysis was perhaps, albeit inadvertently, just a little misleading. Two separate amounts of drugs which have been found at the same time in one location or at different locations in circumstances which are closely linked in time, whether of the same kind or consisting of different types need to be looked at together for the purposes of achieving a just overall sentence. This, of course, may or may not result in a defendant receiving a longer sentence than would have been imposed for a single amount when separate parcels of dangerous drugs have been found. This will depend on the weight and type of each parcel.

6. In Yip Pik-kwai (above), the appellant pleaded guilty to a count of trafficking in mixtures containing 20.45 grammes of 'ice' and 12.05 grammes of heroin hydrochloride. These were not discrete offences. They were different kinds of drugs in one count of the indictment, being trafficked at the same time in separate parcels. However, using the tariff guidelines, the sentencing judge in that case had adopted starting points of seven years for the 'ice' and five years for the heroin before giving effect to these consecutively, to arrive at a combined starting point of twelve years. The judge then reduced this overall term by a third to take into account the plea. Allowing the appeal and reducing the eight-year sentence to six years' imprisonment, the Court of Appeal held that in cases where "separate parcels" of dangerous drugs are found:

"it is normally the practice to sentence a defendant on the total quantity ..... rather than on the individual smaller quantities." (Emphasis added)

7. The court went on to observe that there was no reason why there should be a different approach just because the drugs in question were of a different nature. In this light, the court considered that:

"....if the dangerous drugs had either all been heroin or all been 'ice', the total sentence for the trafficking offence should have been (after trial) somewhere in the region of 9 years' imprisonment."

8. It can readily be seen that this approach involves a starting point for sentence being arrived at by taking into account the whole of the narcotic weight of the drugs, whether they are the same kind of drugs in separate parcels or different types of drugs. Therefore, when the two quantities are looked at, the smaller quantity of dangerous drugs and sometimes also, as in the case we are presently considering, the less significant kind of drug may or may not add to the length of the starting point at which the sentencer is seeking to arrive by an attempt to combine the two types and quantities of drugs together to achieve a just overall sentence.

9. This exercise was illustrated in HKSAR v Wong Kam-wo [2001] 2 HKC 647 to which Mr Surman (who did not appear in the court below) also referred in his written argument. In that case, which was very similar to the instant case, the drugs being trafficked were mixtures containing approximately 12 grammes of heroin hydrochloride and almost 2 grammes of midazolam maleate. The sentencing judge took starting points for each of the drugs, but because they were drugs "of a very different nature and their progression up the scale of the proper sentences" varied considerably, and notwithstanding the observations in Yip Pik-kwai about which the judge in that case had been made aware, he chose to give wholly consecutive effect to each of the starting points he had taken.

10. Leaving aside the other considerations in that appeal, this court concluded that if the approach taken by the judge in Wong Kam-wo had been right:

"it would mean that where the drugs were of a similar kind and far more serious (than midazolam), such as the heroin and 'ice' in Yip Pik-kwai, a defendant would receive an appropriate sentence to take into account the totality of the drugs in question and yet, as here, where they were not similar, an additional sentence would be appropriate, regardless of the amount involved.

We are satisfied this cannot be right. Trafficking in midazolam is far less serious than trafficking in heroin. If the quantity of midazolam had, for argument's sake, been a further quantity of heroin weighing about 2 grammes, it is most unlikely that the sentence would have been affected. In our opinion, it was inappropriate, therefore, for the Appellant to have received any additional sentence merely because midazolam was a drug of a different nature to heroin. In this sense, the judge erred in principle by having added to the Appellant's sentence."

11. The present case was, of course, heard before the decision in Wong Kam-wo, and we observe also that the judgment in Yip Pik-kwai (above) was not brought to the judge's attention.

12. The question we have had to ask ourselves, in the light of the judgments to which we have referred, is whether the amount of midazolam maleate being trafficked should have materially altered the sentence imposed on the Applicant for trafficking in this amount of heroin. The narcotic content of the midazolam was just under 4 grammes. We consider that if this had been a further quantity of the much more harmful drug, heroin, as opposed to midazolam, this would not have made more than a marginal difference, if indeed any difference at all, to the starting point the judge had correctly taken for the heroin in question. For this reason, therefore, we do not think that any further term of imprisonment, by way of enhancement of the starting point taken for the heroin, should have been incurred. With the greatest respect to the judge, who had plainly given careful thought to the sentence he imposed, we consider that in this regard there was an error of principle.

13. Accordingly, we shall grant leave out of time and, treating the hearing as the appeal, we shall allow the appeal. Adopting the judge's starting point for the heroin alone of five and a half years, and giving the usual discount of one third, we reduce the sentence in this case from four years' imprisonment to three years and eight months.