HKSAR v. CHENG LING LING

CACC 66/2018

[2019] HKCA 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2018

(ON APPEAL FROM HCCC NO 289 OF 2017)

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The appellant, with the leave of the Court, appealed her sentence of 6 years and 8 months’ imprisonment which was imposed on her by Andrew Chan J, following her plea of guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, (the Ordinance) (Counts 1 and 3), and two counts of doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Ordinance (Counts 2 and 4).

2.  The sole ground of appeal was whether the judge, when sentencing the appellant on Counts 2 and 4, properly took into account the fact that the actual substance was not the drug she believed it to be, and would have caused little, if any, harm to anyone.

3.  At the hearing of the appeal we allowed the appeal and reduced the appellant’s sentence from 6 years and 8 months’ imprisonment to 5 years and 10 months’ imprisonment.  We said that we would hand down our reasons in due course and this we now do.

The admitted facts

4.  The facts outlined to the judge and admitted on behalf of the appellant[1] were that on 17 October 2016, police officers intercepted the appellant, who was in the company of a male person, outside a shopping centre at Tai Wai, Shatin.  The police officers searched the grey bag that the appellant was carrying and found 7 packets containing a total of 82.2 grammes of a solid containing 24.1 grammes of ketamine (Count 1) and 6 packets containing a total of 81.5 grammes of a powder containing Phenacetin, a Part 1 Poison (Count 2).  They also found in her possession two mobile telephones and cash of $1,395.10.  The male was also searched but nothing suspicious was found on him.  The police officers arrested the appellant and after she had been cautioned she said, “For the K Chai in that small grey recycle bag, I carried it for someone only.”

5.  The police officers then conducted a search of the appellant’s residence where they found one packet containing a total of 224 grammes of a powder containing 62.4 grammes of ketamine and 24 packets inside 2 packets containing 18.27 grammes of a solid containing 13.14 grammes of cocaine (Count 3), and one packet of a substance containing 481 grammes of a powder and 57 packets of a substance containing 153.2 grammes of a powder containing Phenacetin, a Part 1 Poison, amounting to a total quantity of 634.2 grammes (Count 4).  Also found in her residence were two electronic scales and one packet of resealable plastic bags.  After being cautioned, she said, “Ah Sir, that pile of stuff is dangerous drug too.  I also helped others carry it outside to someone only.”

6.  In a subsequent video recorded interview, the appellant was asked to comment on the items that had been seized.  When shown the 13 packets seized from her (Counts 1 and 2), she said they were all ketamine which she recognised because she consumed it when she was young.  When shown the other items found at her residence, she said the two packets were cocaine (Count 3) and all other packets were ketamine (Count 4).  She explained that in the evening on 16 October 2016, she received all the drugs from an unknown male.  She was instructed to package the drugs, and in order to do so she purchased two electronic scales.  After packaging the drugs, she was to pass them to another person on 17 October 2016 for which she would receive $1,000 for every 1000 grammes of drugs. 

The reasons for sentence

7.  The judge in his reasons for sentence[2] outlined the mitigation presented on behalf of the appellant.  She was at the time of sentence 34 years old and a single parent with an 8-year-old son.  She was on welfare benefits and as a result of financial difficulties, she agreed to package the drugs for another person.  It was submitted that she needed the money for her son’s extracurricular activities, and it was out of greed and stupidity that she committed the present offences.

8.  The judge applied the sentencing guidelines for trafficking in ketamine as laid out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLR 1. The relevant starting points on conviction after trial for 10 to 50 grammes corresponds to 4 to 6 years’ imprisonment; and 50 to 300 grammes corresponds to 6 to 9 years’ imprisonment.

9.  In respect of Count 1, which consisted of 82.2 grammes of a solid containing 24.1 grammes of ketamine narcotic, the judge adopted a starting point of 54 months’ imprisonment which he reduced by one third for the appellant’s plea of guilty to 36 months’ imprisonment.  It should be noted that on an arithmetic calculation of the sentencing guidelines for this quantity of ketamine narcotic the starting point would be 56 months’ imprisonment.

10.  In respect of Count 2, the judge noted that the appellant had trafficked in 81.5 grammes of a substance which she believed to be ketamine and for the purpose of sentencing treated her the same as he did on Count 1 because the total quantity of substance in the two counts was about the same. He imposed a sentence of 36 months’ imprisonment after her plea. 

11.  In respect of Count 3, the judge adopted a starting point of 72 months’ imprisonment for 62.4 grammes of ketamine narcotic which he enhanced by 1 year to 84 months’ imprisonment for the 13.4 grammes of cocaine narcotic.  He then reduced the starting point of 84 months’ imprisonment by one third for the appellant’s guilty plea to 56 months’ imprisonment. 

12.  In respect of Count 4, the judge noted that the appellant had trafficked in a total of 634 grammes of a substance which she believed to be ketamine.  In order to determine a nominal quantity of ketamine narcotic, he adopted the ketamine to substance ratio in Count 1 of 24 grammes to 82 grammes (0.29 or 29%).  He applied this ratio to the total quantity of the substance of 634 grammes to calculate a nominal narcotic content of ketamine narcotic of 185 grammes.  According to the sentencing guidelines for this quantity of ketamine narcotic, he adopted a starting point of 90 months’ imprisonment which he reduced by one third for the appellant’s guilty plea to 60 months’ imprisonment.

13.  The judge then took a global view of the case and noted that the drugs involved consisted of 295 grammes of ketamine or its equivalent, and 13.14 grammes of cocaine.  He ordered that 6 months of Count 1, 6 months of Count 2, and 8 months of Count 3 run consecutively to each other and to the sentence of 60 months on Count 4, making a total sentence of 80 months’ imprisonment.

The issue

14.  As is apparent, the judge was faced with a rather complicated case to sentence.  He had to deal with multiple offences involving a batch of drugs, as well as substances believed to be drugs. 

15.  In respect of Counts 2 and 4, the appellant was sentenced for trafficking in quantities of a substance she believed was ketamine but which turned out to be in Count 2, a powder containing Phenacetin, a Part 1 Poison, and in Count 4, a substance that was a combination of a powder that did not contain either a dangerous drug or a Part 1 Poison, and a powder containing Phenacetin. 

16.  The issue engaged in this appeal was whether the judge should have given a reduction to the sentence for the fact that the substances in question would cause little, if any, harm to anyone, even though the appellant believed the substances to be ketamine.

The offence provision

17.  It is important to note that under the Ordinance, the offence of Doing an act for the purpose of trafficking in a substance he believed to be a dangerous drug, contrary to section 4(1)(c) and (3), carries the same maximum penalty for the offence of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3).  So far as material, section 4 reads:

“(1) Save under and in accordance with this Ordinance or a licence granted by the Director hereunder, no person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong—

(a) traffic in a dangerous drug;

(b) offer to traffic in a dangerous drug or in a substance he believes to be a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug or in a substance he believes to be a dangerous drug.

(2) …

(3) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable—

(a) on conviction on indictment, to a fine of $5,000,000 and to imprisonment for life; and

(b) on summary conviction, to a fine of $500,000 and to imprisonment for 3 years.

(4) …”

18.  There is the alternative offence under the Ordinance of Trafficking in a purported dangerous drug, contrary to section 4A.  This offence carries a maximum penalty of a fine of $500,000 and imprisonment for 7 years.  So far as material, section 4A reads:

“(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong—

(a) traffic in any substance represented or held out by him to be a dangerous drug but which is not in fact a dangerous drug;

(b) offer to traffic in any substance represented or held out by him to be a dangerous drug but which is not in fact a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in any substance represented or held out by him to be a dangerous drug but which is not in fact a dangerous drug.

(2) …

(3) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable—

(a) on conviction on indictment, to a fine of $500,000 and to imprisonment for 7 years; and

(b) on summary conviction, to a fine of $100,000 and to imprisonment for 1 year.

(4) …”

19.  The distinction between these two offences was addressed by the Court of Appeal in HKSAR v Li Oi Yee [2012] 1 HKLRD 276.[3]  The Court noted that section 4(1)(c) was added at the same time as section 4A was introduced, and endorsed the view expressed in R v Lee Wing Chun [1982] HKC 653 that the amending legislation made it clear that the legislature was drawing a distinction between the case of a person who believes that he is actually selling a dangerous drug but the substance in fact is of a different nature, and the case of a person who knows what he is purporting to sell as a dangerous drug is nothing of the kind.

20.  In the present case, the appellant was charged in respect of Counts 2 and 4 under section 4(1)(c) of Doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug.

The “no harm” factor

21.  We found the case of Li Oi Yee of particular assistance in addressing the issue of the “no harm” factor.  Even though in that case, the appellant was convicted of the offence of Attempting to traffic in a dangerous drug, the Court in any event had to address how the appellant should be sentenced for a dangerous drug that she believed she was attempting to traffic when it turned out not to be a drug at all. 

22.  The first question that was addressed by the Court was the degree of criminality involved in such a case.  Stock VP, (as he then was), who gave the judgment of the Court, explained that the mental element under the offence was exactly the same as the mental element had the substance turned out to be a dangerous drug, and by reason of this mental element, there was a substantial degree of criminality.

“8. … where the offender believes, albeit mistakenly, the substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reason of this mens rea a substantial degree of criminality: R v Patel (1995) 16 Cr App R (S) 267, 272. Whilst part of the sentence in any dangerous drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the sentencing aim in dangerous drugs cases is that of deterrence. It is the aim of the courts firmly to dissuade erstwhile traffickers from engaging in this trade and it sits ill in the mouth of the offender who believes erroneously that he is trafficking in dangerous drugs to suggest that he should by reason of happenstance be immune from that deterrent policy.”

23.  When considering how to sentence an offender who is under the mistaken belief that he or she is trafficking in a dangerous drug, Stock VP adopted the line of reasoning of the English Court of Appeal in the following cases. 

24.  In R v Afzal and Arshad [1992] 13 Cr App R (S) 145, the appellants thought they were importing heroin of average saleable purity but it turned out that it was so dilute as to be unsaleable.  The Court noted that a person who believes he is importing heroin of average strength is clearly more culpable than a person who believes he is importing heroin which is almost unsaleable.  The Court held that the problem should be approached by looking at what the offender had in fact done and also at what he thought he was doing, namely taking into account the actus reus, and its consequences, as well as his mens rea.  Accordingly, sentences of 12 and 8 years’ imprisonment were reduced to 8 and 5 years’ imprisonment respectively. 

25.  In R v Szmyt [2010] Cr App R (S) 69, 468, a sentence of 6 years’ imprisonment for attempting to import ecstasy was reduced to 4½ years’ imprisonment where the tablets imported were found not to contain any ecstasy at all.  It was held that the court must presume that the offender believed that he was trafficking a dangerous drug of “a typical or usual strength”, and although the moral culpability remained the same, the sentence should reflect the fact that the substance contained no dangerous drug. 

26.  With these sentencing principles and approach in mind, Stock VP went on to conclude:

“12. … the Court should indeed look at the sentence which otherwise would be imposed for trafficking in the drugs which the offender believed she possessed, for her moral culpability remains the same, but the Court should at the same time accord a reduction in recognition of the fact that the actus reus brings with it, as matters transpired, no harm to an ultimate consumer.”

27.  In the recent decision of HKSAR v Yeung Hoi-ting, CACC 154/2016, 14 June 2019, unreported, this Court addressed the issue of the mistaken belief of an offender as to the nature and quantity of the drugs involved.  The Court made the following pertinent comments:

“64. … that where a genuine mistaken belief has been established, this will only be a factor that goes to a reduction in what otherwise would be the appropriate sentence, for the drugs in which he actually trafficked. The amount of reduction for the mistaken belief will, inevitably, be fact sensitive and will depend very much upon the significance of the difference between what the defendant actually imported, in terms of both the nature and quantity of the drugs, and what the defendant believed he was importing. The greater the difference, the greater will be the discount but, and this does need to be emphasised, there is a limit on the amount of the discount that can be awarded. The amount of the discount must not be such that it diminishes the gravity of the offence or undermines the deterrent effect of the sentence.”

28.  In summary, a sentencing court should therefore look at the sentence which would have been imposed for trafficking in the drugs the defendant believed he or she possessed, and accord a reduction in recognition of the fact that the physical element of the offence brought with it little, or no harm. 

The submissions of the parties

29.  The submissions of the parties acknowledged the principles as stated in Li Oi Yee,and from an analysis of past cases involving the “no harm” factor, they variously suggested a range of percentage discounts that should be given in an appropriate case.  The appellant submitted that the range of discount should be 40% to 50%, while the respondent submitted that the range should be 20% or less.

30.  We point out that none of the cases mentioned suggest a percentage discount, and we do not endorse this approach because the discount that should be given for the “no harm” factor will very much depend upon the particular facts and circumstances of the case.

The original sentence

31.  In relation to Counts 2 and 4, the judge had to address two factors.  First, the typical or usual strength of the dangerous drug that the appellant believed she was trafficking.  Secondly, the actual nature of the substance and whether any reduction to the sentence should be afforded to the appellant if it was shown that the substance brought with it no harm.  The judge had dealt with the first factor but appears not to have dealt with the second.

32.  The judge applied the same sentence on Count 1 (82.2 grammes of a solid containing 24.4 grammes of ketamine) on Count 2 (81.5 grammes of a powder) because the amount of substances were the same.[4]  He acknowledged in the course of submissions that he would apply the same purity of the substance of 29% in Count 1 to Count 4 when determining the narcotic content.[5]  In other words, the judge determined a nominal quantity of ketamine narcotic in Counts 2 and 4 by reducing the total quantity of the substances to 29%.  The basis for doing so was because the appellant would have believed that she was trafficking in drugs with a narcotic content similar to the drugs in Count 1.  This was consistent with the reasoning in Szmyt where the court should presume that the offender believed that he was trafficking a dangerous drug of “a typical or usual strength”. 

33.  The judge, however, did not allow for the “no harm” factor, bearing in mind the actual nature of the substances involved.

The revised sentence

34.  No issue was taken by the appellant in relation to the sentences passed by the judge on Counts 1 and 3 of 3 years’ imprisonment and 4 years and 8 months’ imprisonment respectively.  It was only in respect of Counts 2 and 4 that we had to determine an appropriate adjustment for the “no harm” element.  When considering these two counts, we bore in mind that in Count 2, the substance contained Phenacetin, a Part 1 Poison, whereas in Count 4, a quarter of the substance was Phenacetin and the rest was a placebo.  Phenacetin is a pain relieving and fever reducing drug.

35.  In respect of Count 2, the quantity of the substance that the appellant believed was ketamine, or contained ketamine, was 81.5 grammes.  Applying the ketamine to substance ratio in Count 1 of 24 grammes to 82 grammes (29%), as the judge did in Count 4, the quantity of narcotic would be 23 grammes which would attract, according to the sentencing guidelines, a starting point of 4 years and 7 months’ imprisonment.  After a one third reduction to the starting point for the appellant’s guilty plea, the resultant sentence is 3 years’ imprisonment. Taking into account the fact that the substance contained Phenacetin, we would further reduce the sentence for the “no harm” element to 2 years and 4 months’ imprisonment. 

36.  In respect of Count 4, the quantity of the substance that the appellant believed was ketamine, or contained ketamine, was 634 grammes, but based on the judge’s ketamine to substance ratio of 29%, the quantity of narcotic would be 184 grammes which would attract, according to the sentencing guidelines, a starting point of 7 years and 7 months’ imprisonment.  After a one third reduction to the starting point for the appellant’s guilty plea, the resultant sentence is 5 years’ imprisonment. Taking into account the fact that the substance consisted of 153.2 grammes of a powder containing Phenacetin, while the rest was a placebo, we would further reduce the sentence to 4 years’ imprisonment.

37.  The end result was that the appellant received a sentence of 3 years’ imprisonment on Count 1, 2 years and 4 months’ imprisonment on Count 2, 4 years and 8 months’ imprisonment on Count 3 and 4 years’ imprisonment on Count 4.  After taking into account the totality of the sentences, we would order that 5 months of the sentence on Count 1, 3 months of the sentence on Count 2, and 6 months on the sentence on Count 4 run consecutively to each other and to the sentence of 4 years and 8 months’ imprisonment on Count 3, making a total sentence of 5 years and 10 months’ imprisonment.

Conclusion

38.  The appeal of the appellant was allowed to the extent stated and accordingly the sentence of 6 years and 8 months’ imprisonment was quashed and a sentence of 5 years and 10 months’ imprisonment was substituted.

[1] Appeal Bundle, 5 to 8.

[2] Appeal Bundle, 9 to 11.

[3] At paragraphs 12 to 17.

[4] Appeal Bundle, 51Q-T.

[5] Appeal Bundle, 54B to 55B.