HKSAR v. CHAN HO WAI

CACC129/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 129 OF 2008

(ON APPEAL FROM DCCC 1002 OF 2007)

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J U D G M E N T

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

1. The applicant was convicted on his own plea before Deputy District Judge Dufton of an offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He was sentenced to three years and eight months’ imprisonment and now seeks leave to appeal that sentence. 

2. The applicant had been arrested on 10 September 2007 at the Lok Ma Chau control point after entering Hong Kong from the mainland.  Three bags containing 427.12 grammes of ketamine and one bag containing 0.75 grammes of cocaine were found bound to his right leg with adhesive tape.  The applicant admitted that he had agreed to bring the drugs into Hong Kong for reward. 

3. Mr Boyton, for the applicant, advances one ground of appeal.  It is to the effect that the judge’s approach was wrong in principle and resulted in a manifestly excessive sentence. 

4. Where a sentence is imposed for trafficking in a mixture or “cocktail” comprising different dangerous drugs charged as a single offence a court may proceed in one of two ways.  Firstly, it may proceed by what has been called the “combined” approach where the most serious drug provides the starting point of sentence, which can then be adjusted upwards to take into account the quantity of the less serious drug, though sometimes no upward adjustment will be required as the less serious drug will be present in insignificant quantities which, for the purpose of sentence, can be properly ignored : see generally HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42, HKSAR v. Wong Kam Wo [2001] 2 HKLRD 290, HKSAR v. Cheng Kwok Leung [2003] 3 HKLRD 542 and HKSAR v. Yip Wai Yin (unreported), CACC80/2003. 

5. This approach, as a matter of practicality, begs the question which drug is to be regarded as the more serious and thus be the basis of the court’s starting point for sentence.  In our view, that question is determined not by any principle of law but rather by a common sense approach.  It may well be that a drug of lesser potency than another, or others, contained in the mixture is present in such quantity that the sentence imposed will primarily reflect the defendant’s possession of, or dealings with, that drug so that it provides the basis for the starting point of sentence.  On the other hand, two or more drugs contained in the mixture may be present in similar quantities, but the potency of one is far greater than that of the others so that it sensibly provides the basis for the starting point for sentence. 

6. The second approach to sentence where the court is dealing with a mixture of drugs has been called the “individual” approach where each drug component in a mixture receives individual consideration as to its starting point for sentence, those then being combined into an overall starting point prior to any further discount : see HKSAR v. Lai Kwok Hung (unreported), CACC564/2002 and HKSAR v. Cheng Yat Ming (unreported), CACC455/2006 .  Whichever of the two approaches is adopted by a sentencing court will depend upon the circumstances of the particular case, though whatever approach is adopted will be very much a matter for the discretion of the court. 

7. As a rule of practice the less differentiation between the sentencing brackets for the different drugs involved in the offence then the more appropriate the “combined” approach would likely be. 

8. If, on the other hand, the drugs were quite disparate in quantity and potency, as in the present case, then a court may well prefer to proceed by way of the “individual” approach.  The important consideration at the end of the day regardless of what approach is adopted is the totality of the overall starting point. 

9. In sentencing in the present case, the judge said :

“6.      Mr Ng submits on behalf of the defendant that I should adopt the combined approach to sentence and pass only a nominal sentence for the cocaine.  Had the drug for example been midazolam or cannabis this may have been the correct approach.  Cocaine however is a hard drug and attracts much higher sentences.  Whilst the quantity of cocaine in comparison to the ketamine is very small the defendant knew full well that he was bringing to Hong Kong both ketamine and cocaine. 

7.    I am satisfied the proper approach to sentence is to adopt the ‘individual’ approach (see HKSAR v CHENG Yat-ming CACC455/2006).  Which ever approach is adopted the court must give proper regard to totality.  Taking into account that the defendant knew he was bringing to Hong Kong both ketamine and cocaine I am satisfied an overall starting point of 5 years and 6 months imprisonment is appropriate.”

10. Mr Boyton argues that the “combined” approach was preferable.  However in the circumstances of the present case, where separate packets of drugs of widely disparate natures and quantity were the subject of one charged offence, the judge cannot be criticized for adopting the “individual” approach to sentence. 

11. The judge adopted a starting point for the three packets of ketamine possessed by the applicant of four years’ imprisonment based on the practice as to sentencing in respect of ketamine as it applied at the time of the offence : see HKSAR v. Mok Yiu Kau (unreported), CACC256/2006.  He adopted a starting point of two years’ imprisonment for the applicant’s possession of the cocaine in the fourth packet and then took an overall starting point of five years six months’ imprisonment. 

12. No complaint is made by Mr Boyton in respect of the individual starting points taken by the judge.  His argument, reduced to its essentials, is that the overall starting point taken was too high, particularly in view of the small amount of cocaine involved in the offence.  That amount however, while small in relation to the amount of ketamine, was not insignificant and the judge properly regarded it as warranting an individual contribution to the starting point of sentence. 

13. We do not agree with Mr Boyton that the overall starting point was manifestly excessive.  Effectively the judge added both individual starting points together arriving at a term of six years’ imprisonment and then reduced that by six months so as to result in an overall starting point of five years six months’ imprisonment, which was then discounted to three years eight months’ imprisonment to reflect the applicant’s plea. 

14. The overall starting point adopted by the judge though perhaps high cannot be regarded as manifestly excessive having regard to the quantity and nature of drugs involved in the offence, and the application is dismissed.