HKSAR v. WONG NGON CHING

CACC 393/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 393 OF 2015

(ON APPEAL FROM DCCC NO. 627 OF 2015)

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J U D G M E N T
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Introduction

1.  The applicant faced three charges of unlawfully trafficking in dangerous drugs, involving a total of 254.6 grammes of a powder containing 164.31 grammes of ketamine and 0.33 gramme of a solid containing 0.14 gramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty to the charge on 5 November 2015 before HH Judge A Kwok, and was sentenced to a total of 64 months’ imprisonment (or 5 years and 4 months’ imprisonment).

2.  On 17 November 2015, the applicant filed a Notice of application for leave to appeal against his sentence.

The facts

3.  The applicant agreed to the following facts.  On 21 April 2015, a police officer acting as a decoy telephoned the applicant, who offered to sell dangerous drugs to the officer.  Later on the same day, the applicant sold 2 packets containing a total of 26 grammes of a powder containing 22.5 grammes of ketamine to the officer at Fu Shin Estate, Tai Po, for HK$2,800.  This constituted the first charge.

4.  The same officer then telephoned the applicant on 27 April 2015; and the applicant again offered to sell him dangerous drugs. Later on the same day, the applicant sold one packet containing 11.4 grammes of a powder containing 6.51 grammes of ketamine and 2 packets containing 0.33 gramme of a solid containing 0.14 gramme of cocaine to the officer again at Fu Shin Estate, Tai Po.  The applicant was paid HK$2,300.  This constituted the second charge.

5.  On 3 May 2015, the same sequence of events occurred between the officer and the applicant, also at Fu Shin Estate, Tai Po.  On this occasion, the applicant sold one packet containing 23.8 grammes of a powder containing 20.6 grammes of ketamine to the officer, for HK$2,800.  After this transaction, the officer revealed his identity, the applicant attempted to flee but was subdued by officers at the scene.

6.  A search of the applicant’s sling bag found a metal box with 6 packets of a total of 22.4 grammes of a powder containing 13.7 grammes of ketamine; 1 plastic bag containing 171 grammes of a powder containing 101 grammes of ketamine; 1 electronic scale; 2 bundles of re-sealable plastic bags; and 2 mobile telephones.

7.  The estimated street value of the ketamine was HK$30,552, and that of the cocaine was HK$378.

Mitigation

8.  In mitigation, it was submitted that the applicant had suffered injury at work as a courier, causing him to cease working, which led to his taking ketamine.  It was also submitted that the three charges should be considered together and, bearing in mind the principle of totality, at least a partially concurrent sentence should be imposed.

Reasons for Sentence

9.  In sentencing, the judge noted that trafficking in dangerous drugs was a very serious offence, and family circumstances could play little or no part in mitigation.  The quantity of the drugs was the most significant factor to be considered.

10.  Taking each charge separately, the judge adopted:

(a) in respect of Charge 1, a starting point of 45 months’ imprisonment for the 22.5 grammes of ketamine narcotic;

(b) in respect of Charge 2, a starting point of 42 months’ imprisonment for the 6.51 grammes of ketamine narcotic.  Taking into account the principles set out in HKSAR v Cho Hoi Kit [2012] 5 HKLRD 323 and HKSAR v Chan Yuk Leong [2014] 2 HKLRD where two different types of dangerous drugs were present, the judge increased the starting point by 3 months for the 0.14 gramme of cocaine.  Thus, an overall starting point of 45 months’ imprisonment was similarly adopted for Charge 2; and

(c) in respect of Charge 3, a starting point of 69 months’ imprisonment for the 135.3 grammes of ketamine narcotic.

11.  The judge allowed a full one-third discount for the applicant’s guilty plea, resulting in 30 months each in respect of Charges 1 and 2, and 46 months for Charge 3.  In respect of Charges 1 and 2, the judge ordered 9 months of each charge to be served consecutively with each other, making a total of 18 months’ imprisonment, the remaining part of the sentences on the first two charges to run concurrently.  He then ordered the 18 months’ imprisonment on the first two charges to run consecutively to the sentence of 46 months’ on Charge 3, making an overall sentence of 64 months’ imprisonment.

Grounds of appeal against sentence

12.  In his grounds of appeal against sentence, the applicant did not identify any specific ground of appeal, merely stating that the sentence was excessive.  However, before me this morning, he submits that since he was given a sentence of 64 months’ imprisonment following a full one-third discount, the overall starting point working backwards would have been 96 months’ imprisonment, which is above the sentencing jurisdiction of the District Court, namely 84 months’ (or 7 years’) imprisonment.

The respondent’s submissions

13.  Ms Chan Sze-yan, for the respondent, submits in relation to the jurisdictional issue that District Court judges are entitled to consider starting points above the 7-year jurisdictional limit on sentencing, provided the eventual sentence after plea is within their jurisdiction and represents a meaningful discount bearing in mind their jurisdictional limit.  She cites HKSAR v Li Yan [1998] 4 HKC 12, at 15A-D, in support of her position.

14.  As for the individual sentences concerned, Ms Chan submits that the starting points for Charges 1 and 3 both fell below the range of sentences for the quantities concerned set out in Secretary for Justice v Hii Siew Cheng [2008] 2 HKC 323.  In fact, she suggests the starting point in respect of Charge 3 (namely 69 months’ or 5 years and 9 months’ imprisonment) fell well below the starting point within the relevant guideline, when viewed on a strictly arithmetical basis.

15.  She also argues that the enhancement of 3 months for the cocaine component in Charge 2 was appropriate, given that trafficking in two different kinds of dangerous drugs was an aggravating factor; and cocaine was a more potent drug. The overall starting point of 45 months’ imprisonment on Charge 2 was also within the range laid down in Hii Siew Cheng.

16.  Further, the partially consecutive sentence was proper where there were a number of transactions involved, in accordance with the decision of HKSAR v Pau King Kong [2013] 3 HKLRD 676.  Thus, the overall sentence of 64 months’ imprisonment was appropriate and could not be said to be manifestly excessive and/or wrong in principle.

Consideration

17.  So far as the jurisdictional point is concerned, I agree with Ms Chan’s distillation of the principle in Li Yan.  The Court there posed this question, at 14H-I:

“The first question for this court is whether in those circumstances where an appropriate sentence after discount is seven years or more, policy and justice require a further one-third discount from the seven years maximum, or whether, some lesser discount is appropriate.”

The Court answered the question as follows, at 15A-D:

“The cases cited above demonstrate – and it is self-evident – that justice requires a further meaningful discount should be given from the maximum of seven years after plea in those cases which would attract seven years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

But, neither policy nor justice require that a one-third discount for a plea should be given from the maximum of seven years regardless of the proper starting point.  In cases where the appropriate starting point to be imposed after discount is seven years or more, a meaningful discount from seven years should be given in order to give some benefit for the plea.  The same applies if the appropriate sentence is so near seven years that the discount is not meaningful.  As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered.”

18.  In this case the sentence after plea was 64 months’ (or 5 years and 4 months’) imprisonment. In my judgment, that cannot be said to represent a meaningless discount in respect of guilty pleas entered in the District Court, if the overall starting point should properly have been 96 months’ (or 8 years’) imprisonment.

19.  Turning to the individual sentences, the starting point in respect of the ketamine component in Charge 2 (namely 42 months for 6.51 grammes of ketamine) was, on the face of it, somewhat disproportionate to the starting point for the ketamine in Charge 1 (namely 45 months for 22.5 grammes of ketamine).  However, as Ms Chan points out, this may be explained by the fact that the starting point in respect of Charge 1 was lower than it should have been under the relevant guideline band in Hii Siew Cheng.  Viewed on a strictly arithmetical basis, the starting point in respect of 22.5 grammes of ketamine under those guidelines should have been about 55 months’ imprisonment.

20.  Ms Chan is also correct that the starting point in respect of Charge 3, viewed again on a strictly arithmetical basis, should have been about 84 months’ imprisonment, whereas the judge adopted a rather lower starting point of 69 months’ imprisonment for 135.3 grammes of ketamine.

21.  However, these departures from the guidelines in no way assist the applicant, for the simple reason that on both Charge 1 and Charge 3, the starting points were lower than they could and should have been according to the applicable guidelines.

22.  In respect of Charge 2, the adoption of 42 months’ imprisonment as a starting point for the ketamine component was arithmetically in line with the relevant guidelines.  The judge was also entitled to increase that starting point because of the relatively small quantity of cocaine in which the applicant was also trafficking, on the basis that the applicant was trafficking in two types of dangerous drug and thereby catering to a wider market: see HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011), at para 11.  However, I do not think the judge would have been entitled to increase the sentence because the combination of the two drugs was more dangerous when taken together than when taken separately, as he seemed to suggest[1]. As the Court in HKSAR v Chan Yuk Leong (unrep., CACC 318/2013) said, at para 25, while there is expert evidence accepted by the courts concerning the greater harm posed by ketamine when taken in conjunction with methamphetamine hydrochloride (commonly known as “Ice”), there is no such evidence concerning the combined effects of ketamine and cocaine.

23.  Nevertheless, the Court of Appeal is concerned with the overall sentence in cases of drug trafficking involving more than one charge or more than one drug.  The question is whether there is a reasonably arguable ground of appeal that the ultimate sentence of 64 months’ imprisonment in respect of all of the 3 charges concerned is manifestly excessive or wrong in principle, however the judge has gone about sentencing for the individual charges.

24.  In my judgment, I do not think there is a reasonably arguable ground of appeal against sentence in this case.  The starting points in respect of Charges 1 and 3 were lower than they could or should have been, while the starting point in respect of Charge 2 was unimpeachable.  The decision to make the individual sentences on Charge 1 and 2 partly concurrent and partly consecutive but consecutive to the sentence on Charge 3 is also not open to complaint and was entirely appropriate.  These were three separate offences committed on three different days.  Finally, I can see nothing wrong with the ultimate sentence duly discounted by one-third for plea in respect of all of the criminality concerned.

Conclusion

25.  The application for leave to appeal against sentence must therefore be refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal and the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Appeal Bundle, p 15, para 24