HKSAR v. LI OI YEE

CAC C 362/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 362 OF 2010

(ON APPEAL FROM DCCC NO. 453 OF 2010)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.  On 7 October 2010 the appellant was convicted after trial in the District Court by Judge Geiser of the offence of attempting to traffic in a dangerous drug contrary to s. 4 (1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and Section 159G of the Crimes Ordinance, Cap. 200. She was sentenced to 4 years’ imprisonment and now appeals that sentence, leave having been granted by the single judge.

2.  Shortly after midnight on 26 February 2010, the appellant was stopped by police outside her flat in a building in Mong Kok.  She was carrying a handbag inside which was a metal box which contained three re-sealable bags which, in turn, contained 39.5grammes of a substance which the appellant believed to be methamphetamine hydrochloride but which, upon analysis by the Government chemist, turned out not to be a drug at all.

3.  The appellant said that she had purchased the substance for $13,600 believing it to be “Ice” and intended it for her own consumption.  The assertion as to that intention was disbelieved; the judge was satisfied that she was in possession of the substance with intent to traffic it but, because it was not a drug and the appellant believed it to be a dangerous drug, the charge was properly laid as an attempt to traffic in a dangerous drug and of that offence she was convicted.

4.  The judge correctly took the view that had the substance in fact been methamphetamine hydrochloride, the case would have been brought in the High Court and that the appropriate sentence would have been one in the region of 8 to 8 ½ years’ imprisonment.

5.  He then said that he did not find the current sentencing guidelines for trafficking in “Ice” helpful because the appellant was not actually trafficking in drugs.  He added:

“Whilst you were not trafficking in “Ice”, the gravamen of this offence is that you intended to and in a significant quantity.  Clearly, a deterrent sentence is necessary.  You will go to prison for 4 years.”

6.  The grounds of appeal, which have succinctly and with ability been argued by Mr Hung, assert that the judge erred in several regards:

(1) that he failed to have sufficient regard to the fact that it was impossible for the appellant to commit the actual offence of trafficking in a dangerous drug so that in the event the punishment should be “more related to the mens rea ... instead of any act or preparatory work of trafficking in a dangerous drug”; and to the further fact that sentences for drug-related offences hinged upon the nature and quality of the drugs involved whereas in this case, since no dangerous drug was found in the substance, the room for potential harm caused to others was “far less than other cases involving trafficking of dangerous drugs”;

(2) that he failed to take into account that had the appellant been arrested whilst she was actually selling the substance she could have been prosecuted pursuant to the provisions of s. 4A of the Ordinance, for which a maximum sentence of seven years is prescribed, as opposed to a sentence of life imprisonment prescribed by section 4 of the Ordinance; and

(3) that he failed to recognise that had the substance contained but a small quantity of dangerous drugs, the appellant would have been sentenced for that small quantity, a sentence surely less than four years’ imprisonment.

7.  With respect, we think that the submissions are misconceived.  

8.  The harm at which the attempt offence is directed, 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: see Patel and Varshney (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.

9.  These principles are reflected in a number of cases in England to which Mr Walsh for the respondent has drawn our attention; and the fact that the English cases are set against legislative provisions which are not in precisely the same terms as those of this jurisdiction does not affect the validity of the principles.  A number of them are cases where the purity of the drug transpired to be insignificant and much less than that believed by the offender, although one is a case where the tablets believed to contain the drug “ecstasy” in fact contained no “ecstasy” at all.

10.  In R v Afzal and Arshad (1992) 13 Cr App R (S) 145, where drugs thought by the offenders to be heroin of normal purity turned out to be so dilute as to be worthless and unsaleable, sentences of 12 and 8 years were reduced to sentences of 8 and 5 years respectively.  It was contended on behalf of the appellants in that case that they should be sentenced on the basis that the heroin was virtually valueless, by which we assume that counsel meant that the appellants should be sentenced as if actual quantity was the long and the short of the matter.  The Court rejected the submission saying, at 149, that:

“A man who believes he is importing heroin of average strength is clearly more culpable than a man who believes he is importing heroin which is almost unsaleable ... . It seems to us that we should approach the problem by looking at two factors, both at what the appellants have in fact done and also at what they thought they were doing. In other words, we must take account of the actus reus, and its consequences, as well as their mens rea. On that view some reduction from the 12 years and eight years passed by the learned judge is required because the actus reus here, though amply sufficient to support the conviction, would not have had such devastating consequences, as would have been the case if the same quantity of heroin had been of average strength.”

11.  In R v Tomasz Szmyt [2010] 1 Cr App R (S) 69 six years’ imprisonment for attempting to import “ecstasy” was reduced to a sentence of 4 ½ years imprisonment where the tablets imported were found not to contain any “ecstasy” at all.  In that case Jack J said, at 470, that the court “must presume that the appellant believed that he was importing tablets of a typical usual strength, but we accept that although the moral culpability remains the same, the sentence should reflect the fact that the tablets contained no ecstasy.”

12.  Insofar as the judge in our present case appears to have taken the view that the guidelines for actual trafficking in the drug were of no help, we think that, in a case such as the present, 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.   

13.  On that approach, the sentence imposed by the sentencing judge in this case can hardly be said to have been excessive.  Indeed no justifiable complaint could have been made had the sentence been one of five years’ imprisonment.

14.  This leaves the issue of s. 4A.  Section 4A (1) provides:

“(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;

(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.”

15.  Mr Hung suggests that had the appellant actually trafficked in the purported drug and been charged under s. 4A, the sentence would have been shorter than four years, given that the maximum provided by that section is one of seven years’ imprisonment.

16.  This submission ignores the provision of section 4 (1) of the Ordinance, subsection (1) (c) of which was added at the same time as section 4A was introduced:

“(1) save under and in accordance with this Ordinance ... no person shall …

(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.”

17.  In R v Lee Wing Chun [1982] HKC 653, in which a defendant was charged under section 4A, the Court clearly took the view, at 655, that:

“The amending legislation of 1980 makes it clear that the legislature was drawing a distinction between the case of a man who believes that he is actually selling dangerous drugs, whereas the substance in fact is of a different character, and the case of a man who knows (as did the accused in the present case) that what he is purporting to sell as dangerous drugs is nothing of the kind. Thus, the 1980 Ordinance also amended sub-s1 of s4 by making it an offence for anybody to traffick in a substance which he believed to be a dangerous drug. Penalties available for that offence are the very heavy penalties provided for trafficking in the actual drug.”

18.  It seems to us therefore that the point made by Mr Hung must be rejected.  It is clear in any event that the conduct of the appellant was an act preparatory to trafficking in a substance believed by her to be a dangerous drug, a scenario at which s. 4 itself is self-evidently directed: see also Ye Wing Leung, Cr App No. 159 of 1997, 24 June 1997, unreported.

19.  Accordingly, the appeal against sentence is dismissed.