HKSAR v. LEUNG CHUN FUNG

CACC 373/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 373 OF 2002

(ON APPEAL FROM HCCC NO. 175 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. : (giving the judgment of the court)

Appeal against sentence

1. The applicant pleaded guilty in the Magistracy to three counts of trafficking in dangerous drugs and was committed for sentence to the Court of First Instance of the High Court.

2. The first count was in respect of 34.87 grams of heroin hydrochloride. The second count was in respect of 560.08 grams of heroin hydrochloride. The third count was for 0.56 grams of ketamine. The total quantity of the heroin was 594.95 grams.

3. Deputy High Court Judge Toh used a starting point of 20 years' imprisonment as the sentence for the three lots of drugs. She reduced it by one third because of the guilty plea. The final sentence was 13 years and four months' imprisonment. She apportioned the individual sentences as follows :

(1) the sentence for the first count was four years' imprisonment,

(2) the second count was 13 years and four months' imprisonment and

(3) the third count was one year's imprisonment,

all three sentences to be served concurrently.

4. The applicant now seeks leave to appeal against sentence.

Facts

5. There is nothing unusual about the facts of the case. The applicant was stopped in the street in which dangerous drugs were found in his underpants. Later on, more drugs were found at the premises in which the applicant had the key. Drugs were also found in a locker in another premise in which the applicant had the key.

Ground of appeal

6. The ground of appeal is mainly that he was led astray by other criminals. He was remorseful for the offence. During the imprisonment, he managed to improve himself. He had taken and passed the Pitman Chinese examination.

Heroin

7. In R v. Lau Tak Ming [1990] HKLR 370, the guideline for trafficking 400 to 600 grams of heroin is imprisonment of 15 to 20 years. The heroin content in this case is just slightly less than 600 grams.

8. The applicant has just turned 19 at the time of the offence. He obviously was not a hardened criminal. Although he had two previous convictions, they were of relatively minor nature. One was for possession of dangerous drugs for which he was fined and the other was for possession of Part I Poison for which he was put on probation.

9. Taking these factors into account, we are of the view that instead of imposing the maximum of 20 years' imprisonment under the tariff, a more appropriate starting point is 19 years' imprisonment. Given the one third discount for his guilty plea, we will adopt an overall sentence of 12 years' imprisonment.

10. As for the individual sentences, the first count is four years' imprisonment and the second count is 12 years' imprisonment.

Ketamine

11. As to the third count relating to the ketamine, we are of the view that the one year's imprisonment is excessive. There had been a number of recent decisions of the Court of First Instance in which evidence was adduced on the nature of the ketamine, see HKSAR v. Chu Ching Tak, HCCC No. 164 of 2001, HKSAR v. Chan Wai Keung Danny, HCCC No. 267 of 2001 and HKSAR v. Luk Ho Fat, HCCC No. 209 of 2001. It was generally treated to be in the same category as ecstasy.

12. This Court does not have such evidence adduced in this case. In HKSAR v. Yau Wai Hang, CACC No. 80 of 2001 in relation to a charge of trafficking in dangerous drugs consisting of two tablets containing 95 milligrammes of ice and 53 milligrammes of ketamine, this Court used a starting point of two years' imprisonment, reduced it to 16 months' imprisonment because of the one third deduction for the guilty plea. This Court, however, did not specifically deal with the appropriate starting point for ketamine alone.

Same guideline as ecstasy

13. Without finally deciding on this matter but simply on the basis that evidence had been adduced in the Court of First Instance which showed that ketamine is in the same nature as ecstasy, this Court will adopt the tariff for ecstasy in considering the sentence for the ketamine charge.

14. This Court had said in HKSAR v. Lee Tak Kwan [1998] 2 HKLRD 46, that two years to four years' imprisonment is the appropriate sentence for the trafficking in ecstasy from over 25 to 400 grams. For an amount below 25 grams it is entirely within the discretion of the sentencing court.

15. In the recent case of HKSAR v. Lau Chi Chung, HCMA 295 of 2002, Gall J. affirmed the total sentence of six months' imprisonment for two charges of trafficking in 0.04 grams and 0.74 grams of ketamine respectively. The individual sentences was four months' imprisonment with two months of the second charge to run consecutively to the sentence of the first charge.

Appropriate sentence

16. The ketamine in this case is 0.56 grams, we are of the view that a three-month's imprisonment is appropriate.

Conclusion

17. We will allow the application for leave to appeal and will treat it as the appeal itself. The sentence of 13 years and four months' imprisonment is reduced to 12 years. The individual sentences are as follows :

(1) the first sentence remains unchanged at four years,

(2) the second sentence is reduced to 12 years and,

(3) the third sentence is reduced to three months,

all sentences to be served concurrently.