HKSAR v. POON KAM WING

CACC 505/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 505 OF 2011

(ON APPEAL FROM HCCC 370 OF 2011)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.  The applicant seeks to appeal against two sentences of 7 years and 4 months’ imprisonment imposed upon him on 9 November 2011 by Barnes J, following his committal to the Court of First Instance for sentence after he had pleaded guilty in Tsuen Wan Magistracy on 7 October 2011 to two charges of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (‘the Ordinance’).

THE CHARGES

2.  The two charges alleged that the applicant had unlawfully trafficked in dangerous drugs on 27 April 2011.  By charge 1 it was alleged that he had done so in the Kwai Shing West Estate Carpark, Kwai Chung in 46.66 grams of a solid containing 40.52 grams of cocaine.  By charge 2, it was alleged that he had unlawfully trafficked in different amounts of several different dangerous drugs at Room 1313, Block 6, Kwai Shing West Estate, Kwai Chung, namely 47.5 grams of cocaine hydrochloride, 2.13 grams of cocaine and 5.51 grams of ketamine.  Originally, the factual basis for charge 2 had been reflected in a charge of manufacturing a dangerous drug, contrary to section 6(1)(a) and (2) of the Ordinance.  However, on 21 July 2011 that charge had been withdrawn and replaced with a charge of unlawful trafficking in a dangerous drug or dangerous drugs.

THE FACTS

3.  The applicant accepted that he had been intercepted by police officers in the mid-afternoon of 27 April 2011 outside the Kwai Shing West Estate Carpark.  Two plastic bags containing the cocaine the subject of charge 1 were found in his trouser pocket.  Having been arrested and cautioned the applicant admitted that the dangerous drugs were his.

4.  Having gained entry to the premises at Room 1313, Block 6 of Kwai Shing West Estate, police officers found paraphernalia used in packaging of dangerous drugs, namely an electronic scale and multiple empty plastic bags together with other plastic bags in which were contained dangerous drugs.  Having been arrested and cautioned, the applicant asserted that the dangerous drugs in the flat were entirely his.

5.  In the kitchen, was found a wok, a beaker and a milk bottle containing a brown liquid.  In response to yet another arrest and the administering of the words of caution the applicant said:

“ Ah Sir, the dangerous drugs I brought back was cocaine which was raw. It needed to be cooked for sale so I cooked it here in the flat.”

6.  The dangerous drugs found in the premises at Room 1313 were those stipulated in the Particulars of Offence of charge 2.  Also found in those premises were quantities of caffeine, sodium bicarbonate and calcium sulphate.  It was the opinion of a government chemist, accepted by the applicant, that sodium bicarbonate and cocaine hydrochloride were materials from which crack cocaine could be manufactured.  In fact, crack cocaine was found in both a beaker and one of the plastic bags found on the premises.  Similarly, it was the opinion of the government chemist, accepted by the applicant, that having regard to all the findings of dangerous drugs on various paraphernalia that those findings were consistent with the manufacture of crack cocaine having taken place in the premises.

7.  In a video record of interview the applicant admitted that the dangerous drugs and equipment found in the premises belonged to him and that he had cooked the cocaine using that equipment.

REASONS FOR SENTENCE

8.  In her reasons for sentence, the judge noted that the applicant had four previous convictions for possession of dangerous drugs.

9.  The judge said that she treated cocaine and cocaine hydrochloride as the same drug for purposes of sentencing.  On that basis she said that the total quantity was 90.15 grams, which was in the band of 50 to 200 grams which attracted a sentence in the range of 8 to 12 years’ imprisonment.  The 7.59 grams of ketamine she said fell in the band of one to 10 grams of ketamine, for which the sentence was in the range of 2 to 4 years’ imprisonment.  She accepted that unlawfully trafficking in ketamine was relatively less serious than in cocaine.  Also, she accepted that part of the ketamine was for the applicant’s own consumption.

Starting point

10.  In identifying a starting point for sentence of 11 years’ imprisonment, the judge said that she took into account all the circumstances of the case

“ ... including the aggravating factor of ‘altering’ cocaine hydrochloride into crack cocaine and the defendant’s own background”.

Discount

11.  For his pleas of guilty, the judge gave the applicant a discount of one third from the sentence taken as the starting point.  Accordingly, she imposed sentences of 7 years and 4 months’ imprisonment on each of the charges, which she ordered to be served concurrently.

GROUNDS OF APPEAL AGAINST SENTENCE

12.  In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Phillip Ross submitted that the judge erred in increasing the starting point taken for sentence having regard to the fact that the applicant was manufacturing dangerous drugs.  He was not charged with that offence.  He pointed out that at the outset that was one of the charges laid against the applicant.  However, that charge had been withdrawn and the applicant had pleaded guilty to two charges of unlawfully trafficking in a dangerous drug, on which basis he had been committed to the Court of First Instance for sentence.

13.  Mr Phillip Ross relied on a number of authorities in support of the proposition that it was wrong to sentence a defendant on the basis that he was guilty of an offence for which he had not been charged.  Those authorities included the judgment of the majority of the High Court of Australia in the Queen v De Simoni (1981) 147 CLR 383 at 389; the judgment of the Court of Appeal of the Supreme Court of Victoria in R v Newman [1997] 1 VR 146 at 150 in which De Simoni was followed; and R v Chadderton (1980) 2 Cr App R (S) 272.

14.  By his second ground of appeal, Mr Phillip Ross contended that in arriving at a starting point for sentence of 11 years’ imprisonment the judge had stipulated a sentence that was greater than if all of the dangerous drugs in which the applicant unlawfully trafficked had been cocaine, rather than some of it being 5.5 grams of ketamine.

A CONSIDERATION OF THE SUBMISSIONS

15.  Approaching the issue of sentence on a ‘combined’ approach, as the judge did, the more serious dangerous drug was clearly cocaine.  No doubt, that is what led her to identify 90.15 grams as being the relevant weight for consideration of where in the band of sentence, 8 to 12 years, the applicant fell.  She made it clear that not only did she regard unlawfully trafficking in ketamine as less serious than unlawfully trafficking in cocaine but also she had regard to the fact that part of the ketamine was for the applicant’s own consumption.

16.  We accept that taking that approach to stipulating the starting point and taking an arithmetic application of the guidelines for sentence would produce a sentence of about nine years’ imprisonment.

17.  As noted earlier, in stipulating the starting point taken for sentence the judge said that she had regard to two particular matters, namely the altering of the cocaine hydrochloride into crack cocaine and the applicant’s own background.  As to the latter, although the applicant had twice been sentenced to be detained in a Drug Addiction Treatment Centre he had not been convicted of unlawfully trafficking in a dangerous drug or sentenced to a term of imprisonment before. Clearly, the applicant’s background did not call for an enhanced starting point for sentence by way of deterrence.

18.  In those circumstances, it appears that in stipulating a starting point for sentence of 11 years’ imprisonment, significantly more than the arithmetic application of the guideline, the judge had particular regard to the applicant’s conduct in altering the cocaine hydrochloride into crack cocaine.

19.  There is no dispute that the offence of manufacturing dangerous drugs is more serious than that of unlawfully trafficking in dangerous drugs (see the judgments of this court in R v Cheung Wai Kwong [1997] 3 HKC 496 at 501 A-B citing an earlier judgment of the court in R v Wong Chun Ping [1984] HKLR 247 at 257 with approval and HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 at paragraphs 14 and 15).  Of course, relevant factors in the offence of manufacturing dangerous drugs are the scale of the operation, and the capacity of the equipment.  They are relevant to a consideration of whether the manufacturing facility had been or is likely to have been used to produce substantial quantities of dangerous drugs.  Having regard to those factors in Kan, Yeung JA, as he was then, said

“ Therefore, the offence of drug manufacturing is the most serious of all drug-related offences.”

20.  In De Simoni the High Court of Australia was concerned with the construction of statutory provisions in the Western Australian Criminal Code, in particular as to sentences in circumstances of aggravation in the commission of an offence.  However, in the judgment of the majority, delivered by Gibbs CJ, the history of the common law was traced (page 389-391).  That analysis of the common law supported the proposition that it was wrong for a court to take into account factors of aggravation which would have warranted a conviction for a more serious offence.

21.  In Chadderton the Court of Appeal of England and Wales were seized with an appeal from a sentence of three years’ imprisonment that had been imposed on the appellant after he pleaded guilty to possessing a firearm, being a person previously convicted of crime, contrary to section 21(1) of the Firearms Act 1968.  Having received evidence and having determined that the appellant possessed a firearm in order to take revenge on a person who had attacked him, the judge took the view that the appellant ought to have been charged under section 18 of the Act, for which a sentence of 14 years’ imprisonment was the maximum rather than the sentence of three years’ imprisonment under section 21(1).  In sentencing the appellant to the maximum sentence the judge expressed regret that was the maximum sentencing power available to him.  Wien J in the judgment of the court, in allowing the appeal and reducing the sentence to 18 months’ imprisonment, said (page 273):

“ This Court takes the view that to sentence a man on the basis of an offence with which he is not charged is wrong, …..…..”

22.  Similar sentiments were expressed by the Court of Appeal of England and Wales in two other cases to which we drew counsel’s attention, namely, in R v Lawrence [1983] 5 Cr. App. R. (S.) 220 and also the case of R v O’Prey [1999] 2 Cr. App. R. (S.) 83.

23.  It is puzzling, given the tenor of the Summary of Facts, that the prosecution in this case withdrew the charge of manufacturing replacing it with one of unlawfully trafficking.  The charge of manufacturing was consistent with not only the applicant’s admission that he had made crack cocaine but also with the expert evidence.  Material from which crack cocaine could be made was found in the premises.  Mr Man explained in argument that the manufacturing charge in this instant case was withdrawn because of a prosecutorial decision related to the “scale of the operation”.  If that is so, the decision is not consistent with the decision taken by the prosecution in Kan.

24.  Nevertheless, the prosecution did withdraw the charge of manufacturing and replaced it with one of unlawfully trafficking.  It was to that charge, together with charge 1 that the applicant pleaded guilty and was committed for sentence.  Accordingly he fell to be sentenced for those charges and not the more serious charge of manufacturing that was made out by the Summary of Facts.

25.  With respect to the judge, in our judgment she fell into error in taking into account, for purposes of stipulating the starting point taken for sentence, the fact that the applicant had manufactured crack cocaine in the premises.  That she was misled in doing so is perhaps to be explained by the tenor of the Summary of Facts.  However, in our judgment she erred in taking an overall starting point of 11 years’ imprisonment.  The appropriate starting point for sentence was 9 years’ imprisonment, to which the one third discount is to be applied.

Conclusion

26.  In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentences of 7 years and 4 months’ imprisonment imposed in respect of each charge.  In their place we impose sentences of 6 years’ imprisonment for each charge.  The order that they are to be served concurrently is not disturbed.  Accordingly, the total sentence now impose upon the applicant is 6 years’ imprisonment.