HKSAR v. ISLAM S M MAJHARUL

CACC 67/2019

[2019] HKCA 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 67 OF 2019

(ON APPEAL FROM HCCC 379 OF 2018)

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REASONS FOR JUDGMENT

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1.  On 18 February 2019, the applicant pleaded guilty in the High Court before Toh J (“the judge”) to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and was sentenced by her to 9 years and 6 months’ imprisonment. The count particularised two types of dangerous drug, namely, 51.7 grammes of cocaine and 479.26 grammes of ecstasy. The applicant subsequently applied for leave to appeal against his sentence.

2.  At the hearing of the application I granted leave to the applicant and said I would hand down my reasons for doing so at a later date.  This I now do. 

The background to the offences

3.  The Summary of Facts which was admitted by the applicant and used for the purpose of his sentencing revealed that in the evening of 22 February 2018, police officers armed with a search warrant gained entry to a flat on the rooftop of 54 – 56 Un Chau Street, Sham Shui Po, Kowloon.  This flat was divided into seven rooms and it was against Room 5 that the police officers executed the search warrant. 

4.  Nobody was inside this flat but when searching it the police found the following:

(1)   inside an unlocked drawer, one plastic bag, containing 5 packets containing a total of 51.7 grammes of cocaine; and one plastic bag, containing 14 transparent resealable plastic bags containing a total of 2,500 tablets of 479.26 grammes of ecstasy; and

(2)   on the bed, a letter addressed to the applicant from the Immigration Department concerning his non-refoulement application.

The dangerous drugs found inside the unlocked drawer were the drugs particularised in the count.

5.  When the applicant returned to the room he admitted to the police that he was the occupier of it.  The officers found on him keys that opened the door of the rooftop flat, the door of Room 5 and the drawer that contained the dangerous drugs.  The applicant was thereupon arrested.

6.  In a subsequently conducted cautioned video record of interview, the applicant admitted that he received the drugs in question from one “Ali” outside Chung King Mansion and was keeping them in his room whilst awaiting Ali’s further instructions.  He was expecting to receive a monetary reward from Ali but this had not yet happened.

7.  The estimated total street value of the cocaine and the ecstasy in question were HK$81,905 and HK$192,500 respectively.

The mitigation

8.  The applicant was represented by Mr Andrew Bullet of counsel, who also appeared for him in the present leave application.

9.  The applicant had a clear record in Hong Kong. He came to Hong Kong in 2013 and applied for asylum.  He pleaded guilty to the present offence at the committal proceedings at the magistracy.

10.  Mr Bullet recognised that the fact that the applicant committed the offence whilst seeking asylum was an aggravating factor that would have to be reflected in an enhancement of the starting point adopted by the judge.  He suggested to the judge that the enhancement should be no more than 6 months.

11.  Mr Bullet further submitted that as there were more than one type of drug involved the judge should apply the conversion test which would give a starting point of approximately 11 years in sentencing the applicant.

The judge’s Reasons for Sentence

12.  After setting out the facts and personal background of the applicant, the judge acknowledged there were two kinds of narcotics involved and though not expressly saying that she would adopt the combined approach in sentencing him, this is what she appears to have done.

13.  The judge found the aggregate amount of dangerous drugs in the present case was 530.96 grammes.  She noted that if she treated the 530.96 grammes as ecstasy, it would result in a starting point of 11 years and 3 months, whereas if she treated it all as cocaine it would give a starting point of 17 and a half years.  As the amount of ecstasy was much larger than that of cocaine in the present case, the judge decided she would use ecstasy as the base drug for her calculation of a starting point.  However, she would have regard to the fact that part of the 530.96 grammes was cocaine, a more serious drug in terms of potency, and to allow for this fact she would increase the 11 years 3 months by 2 years.  In this way she arrived at a final starting point of 13 years and 3 months.

14.  The judge then took into account the fact of the applicant being an asylum seeker.  To allow for this aggravating factor she enhanced her starting point by 1 year.  This brought the final starting point to 14 years and 3 months’ imprisonment.

15.  The judge said that there was no mitigation for the offence other than the applicant’s timely guilty plea for which she awarded him the full one-third discount. By this route she arrived at a final sentence of 9 years and 6 months’ imprisonment. 

The applicant’s ground of appeal

16.  In the perfected grounds of appeal, Mr Bullet originally complained that the judge erred in having used the combined approach in sentencing the applicant with an alternative ground that if it was appropriate for the judge to have used the combined approach, that she erred in not basing her starting point on the sentencing tariff for cocaine.  However, he subsequently abandoned his argument that the judge erred in not using the individual approach.

17.  Mr Bullet relied on HKSAR v Yip Wai Yin & Anor[1] and submitted that cocaine, which was more serious in terms of potency, should have been used as the base drug to determine the starting point, which should then be adjusted upwards to allow for the significant quantities of ecstasy, the less serious drug.

18.  Furthermore, in order to achieve the correct totality of sentence, Mr Bullet submitted that the judge should have checked the starting point taken against the results from the conversion test and ratio test.  In this respect he relied on what was said by the Court of Appeal in HKSAR v Ko Ka Hing[2] and HKSAR v Chan Yuk Leong[3].

19.  In summary it was Mr Bullet’s submission that the judge should not have determined the starting point using ecstasy as the base drug and erred in failing to cross-check the resulting starting point with the conversion and ratio tests. 

20.  At the hearing of the application he agreed in response to a query from the court that the judge had not applied the correct methodology of the combined approach even if she was entitled to use ecstasy as the base drug.  The judge had adopted an initial starting point by treating the total narcotic as ecstasy and then applying to that quantity the ecstasy guideline.[4]

The respondent’s submissions

21.  Ms Lily Ho, for the respondent, submitted that when a court adopts the combined approach in sentencing it relies on common sense in determining which type of dangerous drug is to be regarded as the more serious and should be the basis for the calculation of a starting point.  In the present case, even though ecstasy is less potent than cocaine, it was present in a much larger quantity and so it was appropriate to use it as the basis for the starting point.

22.  However, Ms Ho conceded that the judge had adopted an incorrect methodology when calculating her initial starting point. 

23.  Ms Ho also foreshadowed an argument that whatever initial starting point was calculated it then had to be adjusted upwards to allow for the cocaine and then this figure would have to be further increased to allow for the aggravating factor of the applicant trafficking in more than one type of dangerous drug.  Consequently, she submitted, the judge’s starting point of 13 years and 3 months in the present case may not be manifestly excessive when compared against a figure arrived at by employing the correct methodology.  

Discussion

24.  As there was more than one kind of dangerous drug being trafficked by the applicant it was necessary for the judge to decide on the appropriate method for the calculation of a starting point.  Which approach to employ is the first key decision that the sentencer must make.  The context for this decision in the present case is that there were two different drugs being trafficked, namely, cocaine and ecstasy – the former being a much more potent drug than the latter.  But the quantities of the two drugs were vastly different with ecstasy making up just over 90% of the narcotic.

25.  Given these facts the judge decided upon the combined approach.  Mr Bullet no longer argued that the judge erred in not employing the individual approach.  Instead, he submitted that she was correct to employ the combined approach but in doing so she should have used the more potent drug cocaine as her base drug in calculating a starting point, even though this drug constituted only 10% of the narcotic.

26.  Thus, the issue in this application for leave to appeal is whether the judge erred in the way she applied the combined approach.

27.  In order to answer this question it is helpful to ascertain what precisely the judge did in employing the combined approach and determine whether her methodology was correct.  She explained the basis for her sentence as follows:

“According to the guidelines, as correctly identified by Mr Bullett, the amount of cocaine would normally, following the guidelines in Lau Tak Ming [1990] 2 HKLR 370, would give us a starting point of about 8 years and as far as the ‘Ecstasy’ is concerned, following the guidelines in Hii Siew Cheng [2009] 1 HKLRD 1, the amount there would garner a starting point of about 10 and a half years. However, because the two drugs were found together, I intend to adopt the combined approach.

Now, combining the two drugs together would give us 530.96 grammes. If I was following -- combining it under the ‘Ecstasy’ guidelines in Hii Siew Cheng, it would give me a starting point of 11 years and 3 months and if I followed, if I combined it into the cocaine, the starting point would be about 17 and a half years. So in the circumstances that the amount of the ‘Ecstasy’ is much larger than the cocaine, I would therefore follow -- make it all into the ‘Ecstasy’ and then increase it by 2 years for the fact that part of that is for a more serious drug of cocaine, and so the 11 years 3 months plus the 2 years for the fact of cocaine would give us 13 years and 3 months.”[5]

28.  As I have said earlier it would appear from these passages that the judge decided to adopt the combined approach to the calculation of her starting point.  It is less clear why she rejected the individual approach but it may be that it was because the effect of adding the two starting points together would create an oppressive result which would then have to be reduced very substantially.

29.  Be that as it may, the judge realised that the next step for her was to determine which of the two drugs she should use as her base drug.  This step required her to reach a view as to which of the two drugs, in the circumstances of the case before her, she should regard as the more serious drug.

30.  The judge decided that ecstasy was the more serious drug and she would use it as her base drug.  How she reached this decision is not clear to me but her comments suggest that she applied the absurdity test to the total amount of the narcotic and concluded that it was inappropriate to use cocaine as the base drug for the purpose of calculating her starting point.[6]

31.  Using the ecstasy sentencing guideline she arrived at the figure of 11 years 3 months as her starting point.  But this calculation had been reached by applying the ecstasy sentencing guideline to the total quantity of narcotic and not just to the actual quantity of ecstasy.  This is where she erred in her methodology. 

32.  It is my understanding, and the understanding of Mr Bullet and Ms Ho, that the correct methodology is that once the sentencer has identified the more serious drug of the cocktail, the sentencer then applies the relevant sentencing guideline to the actual quantity of that more serious drug. Here, the actual quantity of ecstasy was not 530.96 grammes but 479.26 grammes and the ecstasy sentencing guideline when applied to this quantity of ecstasy produces a sentence only of 10 years and 9 and a half months.[7]

33.  Because a starting point calculated in this way does not allow for the presence of the other drugs in the cocktail, here the cocaine, there has to be an upwards adjustment of it.  It is not clear to me from the authorities how the quantum of the upward adjustment is to be calculated but it would seem to me to be sensible at this stage to apply the three cross-checking tests, the absurdity test, the conversion test and the ratio test, so that a feel can be obtained for what should be the final starting point.

34.  I have directed that the parties do the arithmetic calculations for the three tests and include the agreed calculations in their written submissions.

35.  But none of the tests allow, as an aggravating factor, for the reality that the offender is trafficking in more than one type of dangerous drug which provided him with the ability to cater to a wider market and thereby cause greater harm to Hong Kong by his trafficking activity.  In order to be meaningful this enhancement would normally be not less than 4 months and could be more.

36.  I note that no complaint is made in respect of the judge’s enhancement for the aggravating factor of the applicant committing this crime whilst awaiting the processing of an asylum claim. 

37.  As I have noted earlier in this judgment, Ms Ho did not dispute that the judge erred in her methodology but submitted that the sentence she imposed was nevertheless not manifestly excessive.  This is an argument which I feel is more appropriately addressed to the Court of Appeal.

38.  Once a significant error has been demonstrated in the methodology that a judge employs in calculating sentence I feel that the Court of Appeal should sentence the offender afresh. Ms Ho can then raise with that court all the points which she says are relevant to the assessment of a just sentence for this applicant. 

Disposition

39.  For these reasons I granted the applicant leave to appeal his sentence. 

[1] [2004] 3 HKC 367

[2] [2009] 4 HKLRD 856

[3] CACC 318/2013, unreported, 8 April 2014.

[4] This is, in effect, the absurdity test.

[5] Appeal Bundle, page 7H-P.

[6]  If she did then her calculation for treating all 530.96 grammes of narcotic as cocaine was incorrect and the figure should be 18 years 3 months.

[7] The starting point for 51.7 grammes of cocaine is 8 years and half a month.