XTRNX HKSAR v. YUNG SAI HO

[English translation]
HCMA 837/2001

IN THE HIGH COURT OF

THE HONGKONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL JURISDICTION

APPEAL AGAINST SENTENCE

CASE No. HCMA 837 of 2001

(On appeal from NKCC 3984 of 2001)

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Judgement

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1. Appellant was accused of four counts of trafficking in dangerous drugs. In these charges it was alleged that the appellant had, on four different dates, at the same discotheque called "1015", trafficked in dangerous drugs including methamphetamine (Ice) and ketamine (K-jai). Appellant pleaded guilty to all charges and was sentenced to imprisonment for 31 months in total. Now the appellant appeals against the sentence.

The Facts

2. It was alleged in the facts of the case that, on 5 June 2001, the appellant approached a police constable and introduced himself. He asked the police constable if he wanted some dangerous drugs. Later, the police constable purchased some dangerous drugs from the appellant and paid $200 for the drugs.

3. On 9 June 2001 at the same location, appellant approached the police constable and asked him 'if the dangerous drugs sold to him were of good quality and if he wanted some dangerous drugs again'. The police constable paid the appellant $200 to purchase dangerous drugs from him again.

4. On 16 June 2001 at the same location, the appellant approached the police constable again, asking him if he wished to try another kind of dangerous drug, and said it was available at $80 a tablet, the police constable paid the appellant $160 to purchase dangerous drugs.

5. Lastly, on 20 June 2001, the appellant asked the police constable if he wanted the dangerous drugs sold to him on the last occasion again, the police constable indicated he wanted two tablets. The appellant tried to persuade him that if he wished to get one more packet of it, he would only have to pay $200. So the police constable paid the appellant $200 for the dangerous drugs. Obviously the appellant was an active trafficker in this discotheque.

The Sentence

6. Having taken into consideration the damage done by dangerous drugs to our society, the magistrate properly held the view that a deterrent sentence must be imposed. He also took into consideration that the appellant was trafficking dangerous drugs in a discotheque where young people were his target customers. What he did constituted a serious problem to our society.

7. The Magistrate pointed out that the appellant had trafficked in two types of dangerous drugs (i.e. ketamine, or, in Chinese colloquial, "K-jai", and methamphetamine, or, in Chinese colloquial, "Ice"). The magistrate took into consideration that since it was generally accepted "K-jai" is less toxic than "Ice", a lower sentence would be imposed for "K-jai" and the sentence would be included in the sentence for "Ice". Hence the magistrate applied the sentencing guideline for "Ice" in Ching Kwok-hung (transliteration) to reach a decision on sentencing. According to the guideline in Ching Kwok hung, for trafficking a quantity of "Ice" up to 12 grams, the starting point should be 3 to 7 years.

8. The Magistrate took two years as the starting point for each charge and gave one-third discount for his plea of guilty. Accordingly, the appellant was sentenced to 16 months' imprisonment for each charge. The Magistrate further took into account the principle of totality of sentence, and ordered the first sentence of 16 months to run consecutively with 5 months of each of the other sentences but concurrently with the remaining term making a total sentence of 31 months.

Grounds of Appeal

9. Counsel Mr. Suen for the appellant complained that the total sentence of 31 months was manifestly excessive, and the Magistrate did not give sufficient or realistic consideration to the totality principle. He also pointed out that the Magistrate made an error in principle because he did not determine the sentence in accordance with the quantity of dangerous drugs involved. Furthermore, the two years' starting point he took for a single charge was manifestly heavy as that was the upper limit of his jurisdiction.

10. Counsel Mr. SUEN pointed out that what the appellant trafficked were "K-jai" tablets mixed with a small quantity of "Ice". Hence, "Ice" was not the principal ingredient. The Magistrate should not have taken Ching Kwok-hung as the guideline for sentencing, but should apply the guidelines for "Ecstasy" in LEE Tak-kwan to reach a decision, because the toxicity of "K-jai" is supposed to be more or less the same as that of "Ecstasy".

11. Counsel Mr Liu said in his submission that the sentence imposed by the Magistrate was correct because he adopted the guidelines for "Ice" and "Ice" was an ingredient contained in the dangerous drugs involved in this case. Though the quantity of "Ice" was small in the composition, it was not wrong for the magistrate to take 24 months as the starting point. He also suggested that I should in this case reserve for the consideration of the court of appeal pursuant to S118 (1d) of the Magistrates Ordinance, Cap 227, the point that for sentencing an offender of trafficking in "K-jai", whether the court should apply the guideline for "Ecstasy" or the guideline for "Ice" as laid down by the Court of Appeal.

12. I take the view that it may be about time for the Court of Appeal to consider giving guidelines for trafficking in and possessing "K-jai", but I do not think this is an appropriate case to do so. The dangerous drugs involved in this case are the same as the dangerous drugs involved in Luk Ho Fat. In this case, there were a total of 1,775 tablets containing 280.33 grams of "Ice", 185.73 grams of "K-jai" and 3.23 grams of "Diazepam".

13. The magistrate also accepted Dr. Chan's conclusion (that when a dangerous drug is a mixture "cocktail"), the harm done to those who abuse it will be increased significantly, and the effect on them will be doubled. During the appeal hearing of this case, with the consent of the counsel for the appellant, the respondent submitted a report on "K-jai" by Dr. Chan on 14 December 2001. Dr. Chan's latest view remains the same as his past view:

"Ketamine appears to be less dangerous than ice but similar to, if not more dangerous than MDMA. However, there is a possibility that ketamine might become more dangerous than MDMA..."

14. Dr. Chan's conclusion in essence is, "K-jai" is less dangerous than "Ice", but is nearly as dangerous as, if not more dangerous than, "Ecstasy". Hence, I am of the view that up to now there is no sufficient evidence to show "K-jai" is nearly as dangerous as "Ice". But I agree with what Jackson J stated in HKSAR v. Luk Ho Fat, HKCC 209 of 2001 that (when the dangerous drug is a mixture "cocktail"), much more harm will be done to those who abuse it and the effect so produced is doubled accordingly. Therefore in determining the sentence the court must take this into consideration instead of purely relying on the quantity of the dangerous drugs.

15. In HKSAR v Yau Wai Hong, HKCAC 80 of 2001, the Court of Appeal pointed out: "We were not in the end persuaded by Mr. Chik's other argument that all or most of the sentences should have been ordered to run concurrently by simple virtue of their having been interconnected. The applicant's persuasive and the eventually aggressive sales technique, involving repeated attempts to supply such illicit items, was plainly deserving of a higher sentence than he would have received for a single offence."

16. I adopt the foregoing observation made by the Court of Appeal. I also agree with what the magistrate pointed out in his Statement of Findings that for the interest of our society the court is duty bound to fiercely combat such evil acts done by the appellant on four separate occasions in a short span of two weeks. I am of the view that the magistrate rightly adopted a higher starting point to reflect not only the weight of dangerous drugs involved but also the gravity of the role played by the appellant in this case.

17. The appellant is aged 21. He has two previous convictions. This is the first time he committed drug related offences and also the first time he was sentenced to jail.

18. I have taken into consideration the facts of this case and the personal circumstances of the appellant. I am of the view that the total sentence for this case should be 24 months and the starting point for each charge should be 18 months. Furthermore, the appellant is entitled to a reduction of one third of this sentence on his plea of guilty. Hence, the appellant is sentenced to 12 months' imprisonment on each charge. After taking into consideration the totality principle, I am of the view that the 12 months' imprisonment for the first charge shall run consecutively with 4 months of each of the other sentences but shall run concurrently with the remaining sentences. Accordingly, the total sentence is altered to 24 months' imprisonment.

19. I find that the sentence of 31 months' imprisonment imposed by the magistrate is manifestly excessive. Hence the appellant's appeal is allowed. The original sentence is set aside. The appellant is sentenced to 12 months' imprisonment for each charge, and the 12 months' imprisonment for the first charge shall run consecutively with 4 months of each of the other sentences, but concurrently with the remaining sentences, i.e. the total sentence is 24 months' imprisonment.