HKSAR v. CHUNG PING KUN

CACC 85/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 85 OF 2014

(On Appeal From High Court Criminal Case No. 530 of 2013)

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BETWEEN

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Hon Cheung JA (giving Judgment of the Court) :

1.  The applicant pleaded guilty in the Magistrates Court of the offence of trafficking in dangerous drugs, namely, 230 grammes of methamphetamine hydrochloride (‘Ice’). He was committed to the High Court for sentencing. Toh J sentenced him to imprisonment for 9 years and 4 months. The Judge adopted a starting point of 13 years’ imprisonment, enhanced it by one more year to reflect the international element of trafficking making a total of 14 years’ imprisonment. It was then reduced by one third because of the plea. The applicant now applies for leave to appeal against sentence. The only issue raised by his counsel, Mr Ross is the length of the enhancement.

2.  The drugs were brought back by the applicant from the Mainland to Hong Kong.  He was stopped at the Lok Ma Chau Control Point and the drugs were found inside his underwear.  The drugs were worth about $161,000.  The applicant is aged 64 and admitted that he brought back the drugs for a reward of $2,000.  He has 15 convictions, seven of which are drugs offences.  One of these drug offences was trafficking of which he was sentenced to 5 years and 4 months’ imprisonment in 2007.

3.  The starting point of 13 years for 230 grammes of Ice is within the range stipulated in Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125, namely 10-14 years for trafficking in 70-300 grammes of Ice.

4.  In HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 42, this Court held that if there is an international element in the trafficking there should be an enhancement of at least 2 years for drugs above 1,000 grammes.  For drugs less than this amount, the enhancement is at the discretion of the Court, see, for example, HKSAR v. Dewi Kartika Sari Binti Musli (CACC 101/2012 at paragraph 5).  Although both of these cases are concerned with heroin, the courts have applied this approach to other types of drugs, namely, cocaine and Ice.

5.  Mr Ross submitted that given that the sentence for Ice is less severe than heroin and cocaine and given the level of enhancement in the following decided cases, the one year enhancement in the present case is too high.

Amount of Narcotic Trafficked	Enhancement for International Element	Sentence before Enhancement	Case
(1)2.96 kgs of cocaine	2 years	25 years	HKSAR v Lau Chun Sing CACC 233/2010
(2)1634 grammes of cocaine	2 years	23 years	HKSAR v Farias CACC 368/2009
(3)1500 grammes of ice	2 years	21 years	HKSAR v Chan Po Wah CACC 179/2012
(4)958.39 grammes of heroin	2 years	21 years	HKSAR v Riziki Riziki Hamduni CACC 326/2009
(5)861 grammes of heroin	2 years	21 years	HKSAR v Abdallah CACC 494/2012
(6)710 grammes of heroin	1 year	21 years	HKSAR v Koshuma Godfrey Gadiel CACC 342/2009
(7)680 grammes of cocaine	1 year	20½ years	HKSAR v Cielo CACC 97/2013
(8)390 grammes of heroin, 250 grammes of monoacetyl morphine hydrochloride	6 months	20 years	HKSAR v Kessy Upendo Ernest CACC 448/2011
(9)313.13 grammes of heroin, 77.19 grammes of monoacetyl morphine hydrochloride	6 months	14 years 10 months	HKSAR v Rungrueang Chutikan CACC 430/2011
(10)300 grammes of heroin	1 year	13½ years	HKSAR v Abdalla CACC 6/2012
(11)116.52 grammes of ice	6 months	10 years 9 months	HKSAR v Chan Wai Ming, William CACC 53/2013
(12)107.49 grammes of cocaine	6 months	9½ years	HKSAR v Saavedra CACC 424/2011
(13)74.81 grammes of heroin	1½ years	8½ years	HKSAR v Chu Kwok Chu  CACC 371/2012
(14)97.16 grammes of methamphetamine hydrochloride	6 months	10½ years	HKSAR v Kwong Chun-hung CACC 273/2013

6.  Ms Fung, counsel for the respondent, submitted that since the applicant is a persistent offender, there should be enhancement as an additional deterrence. Further she submitted that unless it can be shown that the discretion was wrongly exercised, this Court should not disturb the one year enhancement.  She submitted that based solely on a mathematical approach, the amount of Ice in the present case should attract a sentence of 12 years and 9 months’ imprisonment.

7.  Sentencing is an art.  A pure mathematical approach, even for trafficking in drugs where tariffs are provided for, will ignore other relevant considerations.  No doubt the applicant is a persistent offender and enhancement as an additional deterrence is a recognized principle.  However, at the same time, the applicant is already 64 years of age.  He has been in and out of prison since his mid 30’s.  With a heavy sentence like the present one, it is no exaggeration to say that there is a possibility that he may spend the rest of his life in prison.  In our view the Judge had probably taken all these into account when she imposed a starting point of 13 years’ imprisonment.  We see no reason to enhance it further.

8.  In exercising the discretion, one major consideration is the amount of drugs.  From the table of case referred to by Mr Ross, one can see that the level of enhancement in proportion to the quantity of drugs has not been consistent. The most probable reason is that judges were not presented with data or sufficient data of enhancement for them to make a considered decision.  We note in HKSAR v Chan Wai Ming, William CACV 53/2013 and HKSAR v Kwong Chun Hung CACC 273/2013 the enhancement for 116.52 and 97.16 grammes of Ice respectively was six months.  In the most recent decision of this Court on this topic, in HKSAR v Mothosola Malefetsane Edy,CACC 50/2013, (Decision 13 June 2014) 220 grammes of heroin attracted an enhancement of six months on appeal (the original enhancement was two years).  This Court had also considered, among other cases, HKSAR v Rubiano Restrepo Jose Ignacio (CACC 487/2012, unreported 8 May 2013) where a six-month enhancement was adopted for 380 grammes of cocaine.

9.  As a broad guideline for drugs of this kind below 1,000 grammes we will suggest the level of enhancement as follows :

10.  In the present case had the Judge been informed of the range of enhancement in recent cases, we have no doubt that she would have adopted an enhancement of less than one year to reflect the amount of drugs involved.  A one year enhancement is manifestly excessive.  Consistent with the level adopted by this Court in the most recent case, we consider a 6-month enhancement to be appropriate in the present case for the international element.

11.  Accordingly the application is allowed.  We will treat the application as the appeal proper, quashed the original sentence and substitute it with a sentence of 9 years’ imprisonment [(13 years + 6 months) X ⅔].