HKSAR v. LAU KWOK CHUN AND ANOTHER

CACC 303/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 303 OF 2001

(ON APPEAL FROM DCCC 610 OF 2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. The two Applicants in this case, Lau Kwok Chun, the 1st Applicant and Law Po Keung, the 2nd Applicant, appeared before His Honour Judge Wright in the District Court on 10 August 2001 when the 1st Applicant pleaded guilty to 3 charges of trafficking in dangerous drugs and 1 charge of possession of a dangerous drug and the 2nd Applicant pleaded guilty to 3 charges of trafficking in dangerous drugs.

2. The charges the two Applicants pleaded guilty to; the quantity of narcotic content involved in them and the sentences they received on each charge are as follows.

3. First Applicant; Charge 3, trafficking in dangerous drugs with a narcotic content of 0.04 gms of heroin - 24 months imprisonment. Charge 5, trafficking in dangerous drugs with a narcotic content of 0.03 gms of heroin - 24 months imprisonment, 12 months of which is to be served consecutively to the sentence passed in respect of Charge 3. Charge 6, trafficking in dangerous drugs namely 3 tablets containing a total weight of 52 mgs, of midazolam - 8 months imprisonment, 6 months of which is to be served consecutively to the sentence passed in respect of Charge 3. Charge 7, the possession of dangerous drugs charge, where the drugs were 40 tablets containing a total weight of 0.76 mgs of midazolam - 6 months imprisonment, 3 months of which is to be served consecutively to the sentence passed in respect of Charge 3. In total she was sentenced to serve 45 months imprisonment, which is 3 years 9 months.

4. Second Applicant; Charge 1, trafficking in dangerous drugs with a narcotic content of 0.03 gms of heroin - 24 months imprisonment. Charge 2, trafficking in dangerous drugs with a narcotic content of 0.04 gm of heroin - 24 months imprisonment, 12 months of which is to be served consecutively to the sentence passed in respect of Charge 3. Charge 4, trafficking in dangerous drugs with a narcotic content 0.05 gm of heroin and, in addition, 2 tablets containing 36 mgs of midazolam - 24 months imprisonment, 12 months of which is to be served consecutively to the sentence imposed on him in respect of the Charge 1. In total he was sentenced to a total of 48 months imprisonment, which is 4 years.

5. Both Applicants now seek leave to appeal against their sentences. Mr. H. Y. Wong of counsel represents them on the instructions of the Director of Legal Aid.

6. The facts, briefly, are these: over the period of the offences, March and April 2001, police officers mounted a covert operation to monitor drug trafficking in the vicinity of the Shek Kip Mei Clinic, Berwick Street, Kowloon. In the evenings, this clinic is used as a methadone centre. The operation took the pattern of police officers posing as drug dependents and making purchases on an on-going basis.

7. On 5 March 2001, an undercover officer made a controlled purchase from the 1st Applicant and another Defendant, (the 1st Defendant at trial), of a single packet of a mixture containing 0.03 gms of heroin. The next day, another purchase of heroin was made, this time from the 2nd Defendant and the 1st Defendant at trial, of a single packet of heroin with a narcotic content of 0.04 gms. Two days later, on 8 March, another purchase was made from the 1st Applicant and another Defendant (the 4th Defendant at trial) of a single packet of heroin, with a narcotic content of 0.04 gms. On 12 March, 4 days later, a purchase was made from the 2nd Applicant and the 4th Defendant at trial, of a packet of heroin with a narcotic content of 0.05 gms as well as 2 tablets containing 36 mgs of midazolam. Three days later on 15 March, the 1st Applicant sold an undercover officer a single packet of heroin with a narcotic content of 0.03 gms.

8. On 2 April 2001, the 1st Applicant and the 1st Defendant at trial sold 3 tablets containing 52 mg of midazolam to an undercover officer. According to the facts, which the 1st Applicant agreed to, he said to the officer: "Do you want to buy something, we have only medicine left".

9. Those are the facts of the trafficking offences.

10. On 25 April 2001, the 1st Applicant was found in possession of 40 tablets of containing 76 mgs of midazolam, this gave rise to the possession charge.

11. The grounds of appeal are these:

12. Firstly, that the judge erred to take totality sufficiently into account by failing to have regard to the overall narcotic content of the dangerous drugs that were the subject of all of the charges.

13. Secondly, in respect of the sentence on Charge 6, (the trafficking in midazolam, and Charge 7, the possession of midazolam charge, which the 1st Applicant faced) the judge, in taking a starting point of 12 months imprisonment after trial for trafficking in 3 tablets of midazolam, and a starting point of 9 months imprisonment after trial for possession of 40 tablets of midazolam, exceeded the tariff laid down by the Court of Appeal, in R v Chan Chi man (1987) HKLR 221.

14. Thirdly, the total of 45 months of imprisonment imposed on the 1st Applicant, after plea, for trafficking in dangerous drugs with a total narcotic content of 0.07 gm of heroin, trafficking in 3 tablets of midazolam, and possession of 40 tablets midazolam is manifestly excessive when compared with sentences imposed on defendants in similar cases and circumstances. In this connection, the decisions of this court in HKSAR v Cheung Man Wo, CACC 303/2000 (unreported) and HKSAR v Lai Yau Fat, CACC 278/2000 (unreported) are referred to.

15. Fourthly, the total of 48 months imprisonment imposed on the 2nd Applicant, for trafficking in dangerous drugs with a total narcotic content of 0.12 gms of heroin, and 2 tablets of midazolam, is manifestly excessive when compared with sentences imposed on other offenders for similar offences under similar circumstances. Again, the decisions in Cheung Man Wo and Lai Yau Fat are referred to.

16. In respect of the first ground of appeal - where the total weight of narcotic involved in the 3 trafficking charges the 1st Applicant pleaded guilty to was 0.07 gms of heroin and 52 mgs of midazolam and the sole possession charge involved 40 tablets of midazolam weighing 76 gm in total - Mr Wong accepted that given the small quantity of midazolam involved in the trafficking Charge 6, the judge rightly followed HKSAR v Wong Kam Wo [2001] 2 HKLRD 290 and imposed no additional sentence for that charge. However, following the tariff set in R v Lau Tak Ming [1990] 2 HKLR 370, where it was said that trafficking in up to 10 gms of heroin should attract a sentence of between 2 to 5 years after trial, given the total quantity of heroin involved in these 3 charges, (0.07 gms) and the fact that the 1st Applicant had no previous convictions for drug trafficking, the judge should have treated the amounts in the 3 trafficking charges as one for the purpose of sentence. Had he done so, the total sentence, after trial, on the 3 counts of trafficking would have been substantially less than 5 years imprisonment.

17. Mr Wong said that the same argument applied as equally to the 2nd Applicant, where the total weight of narcotic involved in her trafficking charges was 0.12 gms of heroin.

18. In respect of the second ground of appeal, Mr Wong argued that for Charges 6 and 7 (trafficking in 3 tablets, and possession of 40 tablets of midazolam respectively) the judge took too high a starting point. He took 12 months imprisonment after trial as the starting point for trafficking in the 3 tablets of midazolam and 9 months imprisonment after trial for possession of 40 tablets midazolam. Both sentences exceeded the tariff, suggested by this court in R v Chan Chi Man. As the judge recognised, the tariff sentence in respect of methaqualone tablets applies as equally to midazolam tablets.

19. According to Chan Chi Man, the sentence for possession of methaqualone for the purposes of unlawful trafficking under 500 gms, or 2,000 tablets, is at the discretion of the court; whilst possession for the proposes of trafficking of 500 gms to 1,000 gms, or 2,000 tablets to 4,000 tablets, attracts a sentence of 6 to 12 months imprisonment after trial. The judge apparently thought that further adjustment was necessary as Chan Chi Man dealt with possession for the purposes of trafficking and not actual trafficking. He said, at paragraph 15 of his reasons of sentence:

"I bear in mind that further adjustment would be necessary as Chan Chi Man dealt with possession for unlawful trafficking but not actual trafficking."

Mr Wong argues that there should be no difference between possession for the purposes of unlawful trafficking and actual trafficking and cites Lau Tak Ming as authority for that proposition. He goes on to say that even after taking into account the aggravating features and the latent risk that the judge referred to in his reasons for sentence, the starting point for Charges 6 and 7 still well exceeds the tariff.

20. In respect of the third and fourth grounds of appeal, Mr Wong argued that when compared with sentences imposed on other offenders in similar circumstances, the total sentence of 45 months imprisonment imposed on the 1st Applicant after plea for trafficking in dangerous drugs with a total narcotic of 0.07 gm, trafficking in 3 tablets of midazolam and possession of 40 tablets of midazolam is manifestly excessive. As is the total sentence of 48 months imprisonment passed on the 2nd Applicant who, in total, trafficked in 0.12 gms of heroin.

21. In both Cheung Man Wo and Lai Yau Fat (above), heroin was sold to an undercover agent in Southorn playground on separate occasions. The drugs involved in each transaction were of a small quantity, varying in weight from 0.04 gms to 0.11 gms. Cheung was convicted of 4 counts of trafficking in heroin which had a total narcotic of 0.04 gms and 1 count for possession of heroin which had narcotic content of 2.06 gms, this heroin was found at his residence. Lai was convicted of 4 counts of trafficking in heroin with an overall narcotic content of 0.31 gms. Both Cheung and Lai had previous convictions for trafficking. The sentencing judge considered the fact that the trafficking had taken place in an area notorious for street level trafficking called for an element of deterrence in sentencing. He took 3 years imprisonment as the starting point for each of the trafficking offences and 18 months imprisonment as the starting point for the possession offence. The usual one third discount was given and after taking totality into account, Cheung was sentenced to 54 months imprisonment in total while Lai received a total of sentence of 51 months imprisonment.

22. On appeal, the Court of Appeal did not interfere with the starting point and the individual sentences imposed in respect of each charge. Cheung's overall sentences, however, were reduced to 45 months imprisonment while Lai's overall sentences were reduced to 42 months imprisonment.

23. Mr Wong points out that in the present case, neither Applicant had previous convictions for trafficking in dangerous drugs and that the total narcotic content involved in all of their offences is less than that in Cheung and Lai's cases.

24. In the present case, the judge observed in his Reasons for Sentence that each of the charges the Applicants had pleaded guilty to was separate and distinct from the other and revealed a pattern of commercial dealing at a venue known to be frequented by drug addicts. As a result he was of the view that the total amount of narcotic should not be combined for the purposes of sentencing, as was recommended and done by this court in HKSAR v Chow Yu Chi CA 359 of 2000 (unreported).

25. As the circumstances of the present case are not that the offences were committed on the same day on closely linked facts, it being the case that both Applicants were present on different days trafficking in dangerous drugs in combination with different other persons, it was in our view perfectly proper for the judge in adopting his starting points to fix separate sentences for each charge.

26. We accept that the tariff sentences set out in Chan Chi Man are as equally applicable to offences of trafficking in dangerous drugs and possession of dangerous drugs for the purposes of unlawful trafficking. In Lau Tak Ming, Silke VP said that there should be no difference between the two offences. The judge was of the view that many aggravating features surrounded the trafficking in the 3 midazolam tablets. A potential purchaser was propositioned and more drugs were offered for sale than were eventually agreed to be bought. The words spoken on the making of the offer indicated that the midazolam was only one of a range of drugs potentially on offer. In these circumstances we are of the view that the sentence of 1 year's imprisonment is justifiable.

27. In sentencing the 1st Applicant to 9 months imprisonment for Charge 7, the possession charge, the judge obviously took into account the latent risk in this Applicant being in possession of 40 midazolam tablets. She had been regularly seen selling drugs in the vincity of the clinic and as she was herself an addict in possession of 40 tablets, clearly the latent risk was high. In our judgement her sentence for that offence was justified.

28. Having regard to this court's approach to the sentences passed in Cheung Man Wo and Lau Yau Fat, there may be some merit in Mr Wong's argument that the judge failed to have sufficient regard to totality. In Cheung Man Wo, this court was of the view that total terms of 3 years and 9 months would be appropriate. This was achieved by adjusting the concurrency of the sentences. A similar approach was adopted in Lai Yau Fat, there the judge took a 3 years starting point and reduced it to 2 years for the plea. He made each of the 2nd and 3rd and 4th offences, 9 months consecutive to the 1st and to each other, making a total of 4 years and 3 months. Taking totality into account, this court considered that 3 years 6 months would be just.

29. We also note that both Cheung and Lai had previous convictions for trafficking, while the two Applicants before us do not. Both, however, have previous convictions for possession of dangerous drugs and are certainly are not strangers to dangerous drugs.

30. There are, however, features in this case which, to our minds, distinguish it from the Cheung and Lai's cases. As the judge took pains to stress, there is a strong element of moral depravity in the enterprise in which the Applicants engaged. At least four people, including the two Applicants, openly offered drugs for sale outside the Shek Kip Mei Methadone Clinic, a location quite obviously known to them to be frequented by drug abusers. They were taking advantage of a ready and available market. The whole operation was a well planned one; it was an organised one and it was conducted as a commercial operation with a range of drugs on offer.

31. We are of the view that although the sentences both Applicants received are high they are not manifestly excessive. Both Applicants' applications for leave to appeal against their sentences are dismissed.