HKSAR v. IP YUET HO

CACC 455/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 455 OF 2007 

(ON APPEAL FROM HCCC No. 167 of 2007)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  On 26^th June 2008, we allowed the applicant’s appeal and reduced his sentence by 4 months. We indicated that we would hand down our written reasons in due course and this we now do.

The Facts

2.  On 1 December 2006, the applicant, Ip Yuet-ho was intercepted by police officers outside Room 2 Man Wai Building 5/F in Yaumatei (“the premises”) as he was trying to enter it with a set of keys. The applicant was taken into the premises and Lo Chun-tung (“Lo”) was found playing TV games at the sitting room.

3.  The applicant and Lo were both searched. The applicant had, in a small plastic bag inside his shoulder bag, 0.4 gram of a solid containing o.31 gram of cocaine, but nothing suspicious was found from Lo.

4.  Later, Lam Fung-yee (“Lam”) also entered the premises with keys, claiming to be visiting the applicant. Lam was found to be carrying three plastic bags of 1.4 gram of a crystalline solid containing 1.39 gram of “ice”.

5.  A search of the premises produced a large number of manufacturing and packaging paraphernalia with traces of cocaine, including:

1. two plastic boxes containing 28 small bags of 11.7 grams of a solid containing 9.12 grams of cocaine and  14.53 grams of solid containing 11.11 grams of cocaine on a metal stand next to the room door;

2. two packets of 3.06 grams f a crystalline solid containing 3.04 grams of “ice” and one paper box of 1 gram of a solid containing 0.61 gram of cocaine on a foldable table next to the bed; and

3. one plastic bag containing a brown paper bag containing two plastic bags with 46.68 grams of a solid containing 29.86 grams of cocaine; and a tenancy agreement in the applicant’s name in the cabinet of the bed.

6.  The total quantity of cocaine seized from the premises is 73.91 grams of a solid containing 50.7 grams of cocaine, and 3.06 grams of a solid containing 3.04 grams of “ice”. The cocaine was worth $66,445 and the “ice” was worth $1,147.

7.  The applicant admitted that the dangerous drug found inside the premises belonged to him. He further told the police that he rented the premises in October 2006 after “Ah Wai” promised to supply him with cocaine and to reward him for selling the cocaine to others.

8.  The applicant further admitted that he was responsible for breaking the cocaine into power form and then would mix it with water and soda powder before putting the mixture into tubes to heat up. The mixture, after cooling, would be broken into lumps and then put into plastic bags.

9.  The aforesaid incident led to an indictment consisting of 5 charges against the applicant, Lo and Lam. The 1^st charge of manufacturing a dangerous drug and the 2^nd charge of trafficking in a dangerous drug were joint charges against the applicant, Lo and Lam and they related to the dangerous drugs found inside the premises.

10.  The 3^rd charge of possession of a dangerous drug against the applicant related to the cocaine found in his shoulder bag. The 4^th and 5^th charges were separately directed at Lam and Lo respectively.

11.  The applicant pleaded guilty to the 1^st, 2^nd and 3^rd charges before Deputy High Court Judge Geiser.

The Sentence

12.  For the 1^st and 2^nd charges, the judge sentenced the applicant to 8 years and 8 months’ imprisonment, and 6 years’ imprisonment respectively to run concurrently.

13.  For the 3^rd charge, the judge sentenced the applicant to 4 months’ imprisonment to run consecutively to the sentences on the 1^st and 2^nd charges. The total sentence on the applicant is 9 years’ imprisonment.

14.  The applicant sought leave to appeal against sentence and Mr Frederic Whitehouse represented him.

The Grounds

15.  Mr Whitehouse submitted that the starting point of 13 years adopted by the judge for the 1^st charge was manifestly excessive even though it was one suggested by defence counsel to the judge. He said 11 years should be adopted instead.

16.  Mr Whitehouse further submitted that the sentence on the 3^rd charge should be wholly concurrent.

17.  Mr Whitehouse emphasized that in manufacturing cases, the quantity of drugs is only one factor to be taken into consideration and the other perhaps more important factor is the scale of the operation. Mr Whitehouse submitted that the present case is a low-scale operation, comparable to HKSAR v Wong Ping-kay (CACC 495/2001), which attracted a starting point of 10 years.

18.  Mr Whitehouse asserted, in his written argument, “provided that the quantity of drug is not large, the precise amount, in manufacturing cases, is hardly relevant, because the consideration must always be the scale of operation.”

19.  Mr Whitehouse further asserted that the amount of the drugs, the subject matter of the 3^rd charge, is small and could have been included in the 2^nd charge and it would not have made any difference to the sentence. In the circumstances, Mr Whitehouse suggested that it was wrong in principle to impose a consecutive sentence on the 3^rd charge.

Discussion

20.  Dangerous drugs related offences are serious offences and a fortiori if the offence is one of manufacturing dangerous drugs because, unlike a drug trafficking offence when the quantity of dangerous drugs involved is static, the quantity of dangerous drugs seized in a manufacturing case only represents those that has, so far, been manufactured, and has not been disposed of.

21.  Roberts CJ observes in R v Wong Chun-ping and Others [1984] HKLR 247 at p 257:

“The quantity of drugs found on the premises where manufacturing is taking place, or has taken place, is of some value in indicating the scale of the manufacturing operation. And we suggest that a person convicted of manufacturing should normally receive a longer sentence than he would have done if convicted of unlawful possession, for the purpose of trafficking of the amount of DD found on the premises. However, the serious aspect of manufacturing is that the process of distribution and trafficking in DD depends upon a refining process being undertaken between the grower and the consumer.

It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place.

For instance, it may well happen that a quantity of 100 grammes of a mixture containing salts of esters of morphine is present in premises where manufacturing is found to have taken place. The Chan Chi-ming [1979] HKLR 491 tariff would have suggested a sentence of 3 to 5 years which would be wholly inadequate for the offence of manufacturing.

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of DD.”

22.  In Wong Ping-kay [2002] 3 HKLRD 161, the defendant mixed heroin and caffeine with a blender and then put the mixture in straw containers for sale. The total quantity of heroin seized was 14.88 grams with a retail value of just over $10,000. Under the Lau Tak-ming [1990] 2 HKLR 370 tariff, trafficking in 14.88 grams of heroin would attract a starting point of just over 5 years, yet the Court of Appeal adopted a starting point of 10 years on the basis that it was comparatively a small scale manufacturing operation.

23.  The present case involves 50.7 grams of cocaine and 3 grams of “ice” with a retail value of over $60,000. The quantity of the drugs and their mixed nature made it a more serious case that Wong Ping-kay (supra).

24.  The quantity of drugs involved is certainly a relevant factor, albeit not the only one in the sentence of drug manufacturing cases (see the judgment of P Chan J (as he then was) in R v Cheung Wai-kwong [1997] 3 HKC 496).

25.  The quantity of drugs involved in the present case, not an insignificant quantity and if we may add, indicates that it was a larger operation than what was involved in Wong Ping-kay (supra).

26.  The summary of facts admitted by the applicant suggests that he rented the premises in October 2006 for the purpose of manufacturing dangerous drugs and a reasonable inference is that by the time of his arrest, he had been doing it for almost two months. The applicant also admitted that there was a large number of manufacturing and packaging paraphernalia in the premises.

27.  The judge was perfectly entitled, on those facts, to conclude: “In the present case, the scale of the operation, whilst not large, does appear to be rather larger than the Wong (Ping- kay) case”.

28.  In any event, the process of manufacturing cocaine, as described by the applicant, is a simple process and does not require a large quantity of sophisticated equipment. The pictures taken of the premises indicate that the applicant had employed not less than three burners, a few test tubes and a large number of plastic containers and bags in his manufacturing process.

29.  Mr Whitehouse’s submission that the present case was a “low-scale operation” may not be entirely correct.

30.  On the facts of the case, we were not persuaded that the 13-year starting point for the 1^st charge, adopted by the judge, was manifestly excessive.

31.  The applicant carried a small quantity of cocaine (0.31 gram) in his shoulder bag when he returned to the premises in which another larger quantity of cocaine (50.7 grams) was found. The applicant was sentenced to 6 years’ imprisonment for trafficking in that larger quantity of cocaine and a small amount of “ice”.

32.  If the small quantity of cocaine found in the applicant’s shoulder bag, possibly for his own consumption, were to be included in the larger quantity found inside the premises to form the subject matter of a drug trafficking charge, it was unlikely that the sentence for the drug trafficking charge would be different.

33.  Mr David Leung, for the respondent, had responsibly conceded that a consecutive term of 4 months’ imprisonment for the applicant’s possession of the 0.31 gram of cocaine could not be supported and we agree.

34.  If this amount had been part of the cocaine in the trafficking charge, it would have made no difference to the sentence. It could not be right, in our opinion, that because the applicant was going to consume this quantity himself he should now find himself faced with a longer sentence than he would have received if all the cocaine was to be trafficked by him.

35.  As a matter of principle, this was an aspect of the application on which leave must be granted. Treating the hearing as the appeal, we quashed the order that the 4-month sentence on the 3^rd charge should be served consecutively and, in its place, we ordered that this sentence was to be served concurrently to the sentences on the 1^st and 2^nd charges. The sentences imposed by the judge will otherwise stand.

36.  The appeal succeeded to the extent that the applicant’s total sentence was reduced from 9 years to 8 years and 8 months’ imprisonment.