HKSAR v. NG HON MAN

CACC381/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.381 OF 1999

(ON APPEAL FROM HCCC NO.24 OF 1999)

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J U D G M E N T

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Pang J. (giving the judgment of the Court) :

1. After his trial before Recorder Ching Wong, S.C., sitting with a jury in the Court of First Instance, the Applicant Ng Hon-man was found guilty of one charge of trafficking in a dangerous drug, contrary to s.4(1) of the Dangerous Drugs Ordinance. He was sentenced to 10 years' imprisonment. The subject matter of the charge consists of, in terms of narcotic content, 20.57 grammes of "ice", 23.41 grammes of heroin hydrochloride and 27.20 grammes of cannabis resin.

2. He now applies for leave to appeal against his sentence on the ground that the term imposed was manifestly excessive.

3. According to the prosecution, the Applicant was intercepted by the police in a stop and search operation on 18 October 1998, outside a building in Waterloo Road in Kowloon. The dangerous drugs in question were found inside a box which the Applicant was holding at the time. The Applicant was arrested and subsequently charged with the present offence.

4. The problem facing the learned Recorder in assessing the appropriate sentence was that there were two different types of drugs involved in the same count which are subjected to different sentencing guidelines. In the recent case of HKSAR v. Chan Hei Kam (CACC229/99, unreported), in a differently constituted division of this Court, Stuart-Moore V.-P. observed :

"It is perfectly true that in cases where two types of drugs, each in small quantities, are involved, there would be great injustice caused if a judge was merely to look at the guidelines for the drugs in question and make the sentences consecutive to each other when in effect all the drugs formed one single offence."

In HKSAR v. Yip Pik Kwan [1999] 3 HKLRD 42, in another division of this Court, Mayo J.A. made similar observations.

5. The learned Recorder had not fallen into such an error. He had the case of Yip Pik Kwan before him and had specifically addressed himself on that particular issue. He had quite correctly treated the drugs involved as in one offence and adopted a global starting point of 12 years. By way of illustration, assuming that the entire quantity of drugs seized in this case were all consisted of "ice", the total weight would then have been slightly over 43 grammes. This quantity of "ice", when applied to the guidelines as stated in the case of Ching Kwok Hung, would have fallen into the range between 7 to 10 years' imprisonment. The quantity of "ice" reflected in that sentence range would be from 10 to 70 grammes of "ice". Thus the total weight of 43.98 grammes in this case would have fallen very much short of reaching the ceiling of 10 years. It would have attracted, in our view, a prison term of around eight years. Based on that illustration, we say that the starting point of 12 years adopted by the learned Recorder is manifestly excessive.

6. There is one other observation which we would like to make regarding the learned Recorder's approach to whether there had been evidence of actual trafficking activities. He said :

"Also there is no actual evidence of actual trafficking, nor is there any evidence of what benefit, if any, you stood to gain. I appreciate that there is now, in law, but this one offence of trafficking in dangerous drugs. However within that sense, there must be some discretion given to a Court to recognize the difference between actual trafficking, and possession for the purposes of trafficking."

He took the view that there is a difference, and it should be reflected in the level of sentence imposed. With respect to him we see no difference in sentencing between possessing the drugs for trafficking or actual trafficking. Whether a person is caught alone with the dangerous drugs on him as he conveys the drugs from one place to another, or if he was arrested in the act of handing over the drugs to another in exchange for money are very much part and parcel of the act of trafficking as envisaged by the section. He had given some discount for the lack of actual trafficking activities and we are of the view that he erred in that respect.

7. For the reasons given, we would grant the application for leave to appeal against sentence. We treat this hearing as the appeal itself. The appeal against sentence is allowed and the sentence of 10 years is reduced to one of eight years.