HKSAR v. LUNG TSZ KIT

CACC 252/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 252 OF 2008

(ON APPEAL FROM dccc 517 of 2008)

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 J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.  On 3 April 2008, the applicant – Lung Tsz-kit, was intercepted by a party of police officers outside Wah Mei Store, Hung Min Court in Yuen Long. A police officer found from his shoulder bag a plastic bag containing 495.59 grammes of a powder containing 401.63 grammes of ketamine.

2.  On 21 July 2008, the applicant appeared before Deputy Judge A Yuen in the District Court and pleaded guilty to the charge of trafficking in the ketamine powder. He was sentenced to 4 years’ imprisonment.

3.  The judge, in his reasons for sentence, commented that “the sentencing guideline for trafficking in 401. 63 grammes of ketamine should be well beyond 6 years”. Nevertheless the judge adopted a starting of 6 years and, after reducing the starting point by one-third on account of the guilty plea, sentenced the applicant to 4 years’ imprisonment.

4.  Represented by Mr Kevin Chan, the applicant seeks leave to appeal against sentence. Mr Derek Lai for the respondent, quite fairly does not oppose the application and we will just briefly state our reasons for allowing the application and reducing the sentence.

5.  Prior to June 2008, the Court of Appeal had not laid down sentencing guidelines for the offence of trafficking in ketamine. Generally, the court treated, for the purpose of sentence, ketamine in the same category as “ecstacy”, which attracted the following tariffs for sentence as laid down in HKSAR v Lee Tak Kwan [1998] 2 HKC 371:

“(i) Up to 25g	：	entirely within the discretion of the sentencer
(ii) Over 25g to 400g	：	2 to 4 years
(iii) 400 to 800g	：	4 to 8 years
(iv) Over 800g	：	8 years or upwards.”

6.  The sentencing guidelines in Lee Tak-kwan (supra) were considered out of date, having regard to more recent medical knowledge about ketamine and about its prevalence in Hong Kong.

7.  The Secretary for Justice, in SJ v Hii Siew Cheng CAAR 7/2006 and SJ v Wong Yat San CAAR 126/2007, applied to the Court of Appeal for new sentencing guidelines for the offences of trafficking in ketamine and ecstacy.

8.  The Court of Appeal, in a judgment handed down on 6 June 2008 after the hearing concluded about eight months earlier on 17 October 2007, laid down new sentencing guidelines for trafficking in ketamine and ecstacy, namely:

“(1)	up to 1 gramme	within the sentencer’s discretion;
(2)	over 1 gramme to 10 grammes	2 to 4 years’ imprisonment;
(3)	10 to 50 grammes	4 to 6 years’ imprisonment;
(4)	50 to 300 grammes	6 to 9 years’ imprisonment;
(5)	300 to 600 grammes	9 to 12 years’ imprisonment
(6)	600 to 1000 grammes	12 to 14 years’ imprisonment
(7)	Over 1000 grammes	14 years upwards.”

9.  When the judge commented that “the new guideline for trafficking in 401.63 grammes of ketamine should be well beyond 6 years”, he was clearly referring to the new tariffs for sentence as laid down in Hii Siew Cheng and Wong Yat San (supra).

10.  The applicant committed the offence on 3 April 2008, before the new tariffs for sentence applied. When giving judgment on 6 June 2008, the Court of Appeal, in paragraph 100 of its judgment, expressly stated:

“The new guidelines do not have retrospective effect so that the tariff bands for trafficking in ketamine and ecstasy will only apply to offences committed after this judgment has been given.”

11.  The judge should have applied the guidelines in Lee Tak Kwan (supra) and not the new guidelines, and to that extent, the judge erred.

12.  The proper starting point for trafficking in 401.63 grammes of ketamine under Lee Tak Kwan (supra)is 4 years’ imprisonment, which should be further reduced by one-third to 2 years and 8 months on account of the applicant’s guilty plea.

13.  We therefore grant leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allow the appeal and reduce his sentence from 4 years to 2 years and 8 months.