HKSAR v. CHAN YUK LEONG

CACC 318/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2013

(ON APPEAL FROM HCCC NO. 451 OF 2012)

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BETWEEN

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Hon Yuen JA (giving the reasons for judgment of the Court):

1.  This is an application for leave to appeal against sentence on one of two counts. At the conclusion of the hearing on 2 April 2014, we allowed the application, treated the application as the appeal proper, allowed the appeal, set aside the original sentence, and substituted it with a sentence of 6 years and 4 months, after a 1/3 reduction (on account of the Applicant’s plea) from a sentence of 9 ½ years. Our reasons appear below.

Facts

2.  The Applicant was charged with:

(1) trafficking in dangerous drugs, namely 66.19g of a powder containing 31.53g of ketamine, 43.10 g of a crystalline solid containing 42.01g of methamphetamine hydrochloride (“Ice”) and 30.84g of a solid containing 30.29g of cocaine;

(2) possession of a dangerous drug, namely 94 ml of a liquid containing 0.24g of methamphetamine.

3.  The summary of facts indicated that on 1 March 2012, police officers gained entry into a flat in Wanchai.  Upon seeing the police, the Applicant, who was with two other persons, picked up a bag and tried to rush into the toilet.  He was stopped by police.  The bag was later found to contain, amongst other things, numerous separate bags of Ice, ketamine and cocaine.  Other re-sealable bags, electronic scales and finger covers were found in the flat.

4.  The street value of all the drugs seized was said to be $76,920.  

Sentence

5.  The Applicant, who had a clear record, pleaded guilty.  He had no other mitigating circumstances.  On 28 August 2013 Toh J, after applying a 1/3 discount on account of his plea, sentenced the Applicant to a term of 8 years imprisonment on the 1^st count, and 12 months imprisonment on the 2^nd count, to be served concurrently.  In other words, the “starting point” adopted by the learned judge was 12 years. 

6.  The judge said in her reasons for sentence that in view of the different types of drugs seized, the “combined approach” would be adopted following HKSAR v Yip Wai Yin and anor [2004] 3 HKC 367. 

7.  The judge took the Ice as the “base” of the sentence.  The quantity of Ice seized was 42.01g.   Following the guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125, the judge considered that an appropriate starting point for sentence was 8½ years imprisonment. 

8.  However she then went on to say “making an upward adjustment to take into account the other drugs, particularly the cocaine and ketamine, I consider that the overall sentence should be one of 12 years’ imprisonment”.

9.  The Applicant applied for leave to appeal against sentence on the 1^st count.

Issue

10.  Before this court, both counsel agreed that since Ice was the most serious (ie. most potent) drug, it was correct for the judge to have taken that drug as the base for sentence. They also agreed that a sentence (after trial) of 8½ years for trafficking in 42.01g of Ice was appropriate.  The issue before this court was the extent of the upward adjustment (3½ years) to take into account the trafficking in 31.53g of ketamine and 30.29g of cocaine. 

Discussion

11.  The Applicant’s counsel asked us to apply three means of cross-checking whether the sentence was manifestly excessive. (All sentences referred to below are on the basis of sentences imposed after trial).

- The “absurdity test”

12.  The first means of cross-checking is to apply the approach which has been called the “absurdity test”.  This is shorthand for the approach set out by this court (Ma CJHC and Stock JA) in Yip Wai Yin at para. 9(2), where the court compared the proposed sentence with a sentence where it is assumed that the entire quantity seized contained only the most serious (ie. the most potent) drug:

“The ‘combined’ approach whereby the court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the court is then able to assess, realistically and fairly, the appropriate sentence. For example, sentencing on the basis of individual drugs may lead to absurdity where the addition of the sentences for each individual drug leads to a higher overall sentence than if the whole quantity of the cocktail or batch merely contained the more or most serious of the various drugs: see here HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42; HKSAR v Wong Kam Wo [2001] 2 HKC 647, [2001] 2 HKLRD 290”.

13.  In the present case, if the whole quantity of drugs seized (103.83g) contained only the most serious drug ie. Ice, both counsel are agreed that the sentence would have been 10½ years, which is substantially less than the 12 years starting point taken by the judge.

- The “conversion test”

14.  The second means of cross-checking is to apply the “conversion test”.  This was the approach adopted by this court (Tang VP, Yeung JA and Saw J) in HKSAR v Wong Kin Kau [2010] 4 HKC 443 at para. 11, where the court compared the tariffs applicable to different drugs to arrive at a conversion rate, so that a single tariff for one drug could then be applied to the entire quantity seized:

“Ice and ketamine are not directly comparable. So how does one combine the two? In my view, when one looks at the tariffs, one sees that 300 grammes of ketamine carries roughly the same sentence as 60 grammes of ice [ie. a conversion rate of 5:1]. On that basis, the applicant should be sentenced as if he had in his possession 120 grammes of ice or 600 grammes of ketamine. But in the case of 600 grammes of ketamine or 120 grammes of ice, according to the guidelines, the sentence would have been about 12 years. There is no evidence that they had been mixed into a cocktail to enhance their potency. But the potential is there and it is something we may take into account”.

15.  As far as ketamine is concerned, the tariffs were set in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  In that case it was held that the sentence for trafficking between 10g-50g of ketamine would be 4-6 years imprisonment.  In the present case, there were 31.53g of ketamine, which would have attracted a sentence of about 5 years imprisonment, similar to that which would be imposed for trafficking in say 6g of Ice (per Ching Kwok Hung, where the tariff set for trafficking in Ice was 3 to 7 years imprisonment for up to 10g).

16.  As far as cocaine is concerned, it was held in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 that the tariffs for trafficking in heroin in R v Lau Tak Ming [1990] 2 HKLR 370 should apply to trafficking in cocaine.  In Lau Tak Ming, it was held that the sentence for trafficking between 10g-50g of heroin would be 5-8 years imprisonment.  In the present case, there were 30.29g of cocaine.  Accordingly, it would have attracted a sentence of about 6½ years imprisonment, similar to that which would be imposed for trafficking in say 10g of Ice (per Ching Kwok Hung, above).

17.  If one were to add the converted quantities (6g+10g) to the 42.01g of Ice seized in this case, one would arrive at a total of 58.01g of Ice.  Applying the Ching Kwok Hung tariffs (a sentence of 7-10 years imprisonment for trafficking between 10g-70g of Ice), one would arrive at a sentence of say, 9½ years, which is again substantially less than the 12 years starting point adopted by the judge.

- The “ratio test”

18.  The third means of cross-checking is to apply the “ratio test”.  This was the approach adopted by this court (Lunn JA and Macrae J) in HKSAR v Yau Ka Ming CACC144/2013, unrep. at para. 18, where the court imposed a sentence after

“allowing for the ratio of the weight of the two different dangerous drugs and their related ranges of sentence, but also having regard to the aggravating factor that the applicant was trafficking unlawfully in two serious dangerous drugs”.

19.  This was the calculation done by the Applicant’s counsel on applying the “ratio test” approach, on the basis that Ice accounted for 0.4 in weight of the total quantity seized (42.01/103.83), and 0.3 for each of the ketamine (31.53/103.83) and the cocaine (30.29/103.83):

Dangerous drug	Sentence assuming 103.83g of single drug	Ratio	Sentence
Ice	10½ years	0.4	4.20 years
Ketamine	6½ years	0.3	1.95 years
Cocaine	9½ years	0.3	2.85 years
		Total:	9.00 years

20.  Having set out the above tests, we remind ourselves that the court has often warned against slavishly applying a strictly mathematical approach. The purpose of setting tariffs is to avoid any perceptions of injustice arising from disparity in sentences. 

21.  It is also important to emphasize that tariffs are not to be applied on a linear scale.  The tariffs are biased with relatively heavier sentences imposed on trafficking in lesser amounts, no doubt as a means of deterrence.

22.  As discussed above, the three tests set out above are only methods whereby the court cross-checks whether the total sentence is appropriate. 

Possible aggravating features

23.  We have also taken into consideration the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.

24.  It has been said that one aggravating feature is the ability of the trafficker to cater to a wider market (see the cases referred to in para. 11 of HKSAR v Yim Hung Lui Ricky CACC266/2011, unrep). 

25.  More important is the effect on users of combinations of dangerous drugs.  In HKSAR v Lan Chung-wai HCCC238/2001 (cited in HKSAR v Cheung Kwok Leung Lowence [2003] 3 HKLRD 542 at paras. 30-32) there was expert evidence that a combination of methamphetamine and ketamine poses a greater harm to the abuser than either taken alone.  The reference in Lan Chung-wai to methamphetamine was to both the crystalline form (“Ice”) as well as tablet form.  Counsel for the Respondent has not been able to refer us to any authorities referring to evidence of the effect of combining either Ice or ketamine with cocaine.

26.  For the above reasons, having applied the three cross-check tests, we considered that the upward adjustment of 3½ years in the present case was manifestly excessive.  We considered that a total sentence of 9½ years after trial would have been appropriate for the 1^st count.  After applying the 1/3 discount for plea, we sentenced the Applicant to a term of 6 years 4 months on the 1^st count, to be served concurrently with the sentence on the 2^nd count.