HKSAR v.TO CHU KONG

CACC 350/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 350 OF 2013

(ON APPEAL FROM DCCC NO. 570 OF 2013)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the reasons for judgment of the court):

1.  The applicant was convicted on his own plea of a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced by HH Judge Dufton in the District Court to 4 years’ imprisonment, from which sentence he now appeals. On 24 January 2013, we allowed the application for leave to appeal and allowed the appeal. We said we would hand down our reasons in due course. This we now do.

The prosecution case

2.  The facts which the applicant accepted were that on 14 March 2013, a police party conducted an anti-narcotics operation at the applicant’s address in Kwai Chung.  There they found one packet of ketamine (comprising 2.88 grammes of a solid containing 2.43 grammes of ketamine), one packet of cocaine (comprising 7.51 grammes of a solid containing 5.34 grammes of cocaine) and one packet of what is commonly known as ‘ice’ (comprising 3.95 grammes of a crystalline solid containing 3.82 grammes of methamphetamine hydrochloride).  Inside the drawer of a coffee table were found a set of electronic scales and two piles of re-sealable plastic bags.

3.  Upon his arrest and caution, the applicant said that he was unemployed and lived alone at the address.  He claimed to have bought the drugs earlier that day, paying HK$500 for the ketamine, HK$5,000 for the cocaine and HK$4,000 for the ‘ice’.  He said he was a drug addict and had already consumed some of the ketamine.  Having weighed the drugs, he was intending to put them into the re-sealable plastic bags for re-sale.

The reasons for sentence

4.  In sentencing, the judge accepted that the ketamine component of this mix of drugs “may have been for (the applicant’s) own consumption”.  It should be noted, in view of what we later have to say, that his acceptance extended to all of the ketamine, not just some of it. The applicant was at the time of sentence 25 years of age and had been to DATC twice for possession of drugs; in 2010 and 2012.

5.  The judge noted that there were three different kinds of drugs in the charge.  If he were to adopt the ‘individual’ approach to sentencing, the starting points for trafficking in the ketamine would have been 2 years and 6 months’ imprisonment; the cocaine, 3 years and 6 months’ imprisonment; and the ‘ice’, 4 years’ imprisonment.  He reasoned that if the three starting points were simply added together, they would result in an overall starting point of 10 years’ imprisonment which would clearly be excessive since, if the total narcotic elements of all three drugs for sentencing purposes were added together (ie 11.59 grammes) and assumed to be the most serious of the drugs, namely ‘ice’, the starting point “would be no more than 7 years and 3 months’ imprisonment”.

6.  Accordingly, he considered that the ‘combined’ approach to sentencing was more appropriate, bearing in mind that the most potent drug was ‘ice’, while the largest quantity was cocaine.  Mindful also that there were three different kinds of dangerous drugs, he adopted a starting point of 6 years and 6 months’ imprisonment.  He reduced that starting point by 6 months, given his acceptance that the applicant may have possessed the ketamine for his own consumption.  Giving the applicant full credit for his plea of guilty, he reduced the resulting sentence of 6 years’ imprisonment to one of 4 years’ imprisonment.

The applicant’s grounds of appeal

7.  Mr Fung, on behalf of the applicant, argues that the starting point adopted by the judge was manifestly excessive.  He submitted that if the judge was prepared to accept, as he did, that the whole of the ketamine component may have been for the applicant’s own consumption, then it was inappropriate to include the quantity of ketamine in any assessment of what the starting point should have been for trafficking in all three drugs.  If one removed the ketamine component, since it was accepted that the drug may not have been possessed for trafficking purposes, then the total quantity of narcotic for sentencing purposes of the other two drugs would have been 9.16 grammes; which, assuming they were both ‘ice’, would have led to a sentence of no more than 7 years’ imprisonment under the guidelines in Attorney General v Ching Kwok Hung [1991] 2 HKCLR 69.  Even if all three dangerous drugs had been for trafficking, Mr Fung argued that their combined weight for sentencing purposes, had it all been ‘ice’, would still not have yielded of a sentence higher than 7 years’ imprisonment. However, it was not all ‘ice’ and the judge accepted for the purpose of sentencing that one of the drugs was not for trafficking: yet, he still adopted a starting point of 6 years and 6 months’ imprisonment.

8.  Mr Fung has also taken us to a number of authorities where other sentences, in cases where a mixture or cocktail of drugs were concerned, were said to be less than the sentence in this case.

Consideration

9.  We did not find the cases relied upon by Mr Fung particularly helpful.  All cases are different and the weights of the individual drugs in a mixture found in a particular case will inevitably vary.  Accordingly, the factors affecting the starting point and the sentencing discretion will necessarily be different.

10.  However, we accepted the thrust of Mr Fung’s argument that if the narcotic element for sentencing purposes of the two dangerous drugs in which the applicant was found to be trafficking (namely, the cocaine and ‘ice’) were added together (ie 9.16 grammes) and both assumed to be the more serious drug ‘ice’, the sentence would not have been more than 7 years’ imprisonment.  Even if the weight of the ketamine narcotic were also included and assumed to be ‘ice’ for trafficking purposes, we thought that the starting point would still have been about 7 years’ imprisonment.  The problem in the present appeal is that, having accepted for sentencing purposes that the ketamine was not for trafficking, it could hardly then be included by the judge in any assessment of the overall starting point for trafficking.

11.  It is true that the judge was concerned by the fact that there were three different types of dangerous drugs and that there was a ‘latent risk’ factor in the applicant’s possession of the ketamine.  He also acknowledged in the sentence he passed that he should give some reduction for the fact that the ketamine may have been for the applicant’s own possession.  Nevertheless, the judge clearly made use of the ketamine, the whole of which he was prepared to accept may have been for the applicant’s own consumption, so as to arrive at a starting point for trafficking.  Put simply, he used a drug which he accepted the applicant had for his own possession to factor into his assessment of a starting point for trafficking.

12.  Had the sentence been approached on the basis that all three drugs were for trafficking but only some of the ketamine was for the applicant’s own consumption, the approach which the judge took would have been unexceptional and in line with authority: see HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.  However, by finding that all of the ketamine (a specific drug in an identifiable quantity) may have been for the applicant’s consumption, but then using that drug to establish a starting point for trafficking in all three drugs, the judge’s approach was in our view flawed.  In those circumstances, we considered that the sentencing exercise had miscarried and that we should approach the question of sentence afresh.

13.  In view of the favourable finding as to the ketamine component, we have asked ourselves what would have been the starting point on a ‘combined’ approach for the two quantities of dangerous drugs in which the applicant was found to be trafficking (namely, the cocaine and ‘ice’).  We accepted counsel’s submission that the starting point, according to that approach, would have been about 5 years’ imprisonment.  However, the applicant was also found in possession of a not insignificant quantity of ketamine which, as we have said, the judge accepted may have been for his own consumption.  Accordingly, whilst bearing in mind the principle of totality, we considered that we should add 6 months for the possession of the ketamine, given the circumstances and risk of dissemination to which the judge referred.  That brought the sentence to 5 years and 6 months’ imprisonment.  Applying the full one third discount to the sentence for the applicant’s plea, the resultant sentence became 3 years and 8 months’ imprisonment.

Conclusion

14.  Accordingly, we allowed the application for leave to appeal against sentence.  Treating the hearing of the application as the hearing of the appeal, we allowed the appeal and ordered that the sentence be reduced from 4 years’ imprisonment to 3 years and 8 months’ imprisonment.

15.  We should add that the problem which has emerged in this case would not have happened if the defence had made clear at the time of arraignment that the applicant was pleading guilty to trafficking in the cocaine and ‘ice’, but guilty to simple possession only of the whole of the ketamine. The prosecution would then have had to decide whether to accept the plea on that basis and, if it did not, the defence would have had to decide whether to ask for the issue to be determined.