HKSAR v. CHO HOI KIT

CACC 170/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 170 OF 2012

(ON APPEAL FROM DCCC NO. 211 OF 2012)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1. The applicant (Cho Hoi Kit) pleaded guilty to trafficking in 12.12 grammes of a powder containing 6.52 grammes of ketamine, 0.78 gramme of methamphetamine hydrochloride (“ice”) and 2 tablets containing 3 milligrammes of nimetazepam (“Erimin 5”) before Judge S D’Almada Remedios (the judge) in the District Court and was sentenced to 4 years’ imprisonment.

2. The judge adopted a 6-year starting point and reduced it by one-third to 4 years on account of the guilty plea.  Represented by Ms Wong Bing Yee, the applicant seeks leave to appeal against sentence.

The Facts

3. At about 2 am on 9 January 2012, the applicant, driving a private car (PU 7990), was stopped at a road block in Sai Sha Road, Shatin.  The police found the dangerous drugs, the subject of the charge, in the glove compartment of PU 7990 between the driver’s seat and the front passenger seat.  The dangerous drugs were put in plastic bags inside tiny metal boxes.

4. The applicant told the police, “They are all mine.  Please, please give me a chance.”  Later, the applicant admitted under caution that the mental boxes contained ketamine, “ice” and “Erimin 5” respectively.  The applicant said he had already delivered some drugs to buyers in Tai Po by PU 7990 and that when he was intercepted by the police, he was on his way to deliver other drugs to other buyers.

5. The applicant claimed that the ketamine and the “ice” were purchased for $900 and $400 respectively, and that the “Erimin 5” was purchased for $20 per tablet from “Ah Kuo” in Mongkok.  The applicant further claimed that he had intended to consume some of the drugs that had been seized, and that he would use the earnings of the trafficking to finance his drug addiction.

6. The applicant was 29 and he had 9 previous convictions, 3 of them were for possession of dangerous drugs and the others involved violence and dishonesty.  The applicant’s father died of cancer when he was only 9 years old and his mother brought him up on her own.  It appeared that the applicant’s mother and sister cared for him and were still concerned about him.

The Judge’s Approach

7. The judge pointed out that the applicant was trafficking a mixture of ketamine and “ice” together with a small quantity of nimetazepam which she would ignore for the purpose of sentence.  The judge took the view that trafficking in 6.52 grammes of ketamine and 0.78 gramme of “ice” would each attract a starting point of three years. The judge said she would use a combined approach and adopted a global starting point of 6 years.  The judge reduced the starting point by one-third to 4 years on account of the guilty plea and sentenced the applicant to 4 years’ imprisonment.

Grounds of Appeal

8. Ms Wong argues that the judge was wrong to add the two starting points together and adopted a global starting point of 6 years. Ms Wong argues that the 3-year starting point adopted by the judge for trafficking in 0.78 gramme of “ice” and the total starting point of 6 years were both manifestly excessive.

9. The Court of Appeal in AG v Ching Kwok-hung [1991] 2 HKLR 125 set the sentencing guidelines for trafficking in “ice” and the starting point for trafficking in up to 10 grammes of “ice” is 3 to 7 years’ imprisonment.  One of the issues frequently encountered is whether 3 year is the minimum starting point for trafficking in “ice”, however small the quantity of “ice” is.

10. This Court (differently constituted) in HKSAR v Yeung Kam Chun (unreported, CACC 427/2004) did not think so.  At paragraph 18 of the judgment, the Court said:

“Mr Tam submitted that based on Ching Kwok-hung, three years should be taken as the minimum starting point for any particular amount of ice. He pointed out that there should not be a further refinement of the tariff to cater for the smaller amounts. We do not read Ching Kwok-hung in that way. For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”

11. In drug trafficking cases, the quantity of drugs is of course the most significant factor for the purpose of sentence, but it is not the sole factor.  “As this court has said on numerous occasions the guidelines for sentencing in cases of unlawful trafficking in a dangerous drug are not ‘strait-jackets’.  Aggravating features of the commission of the offence are highly relevant.” (See para 19 of the judgment in HKSAR v Tang Tsz Yan and another unreported, CACC 325/2010)

12. The applicant was trafficking in three different types of drugs.  The applicant had already delivered drugs to buyers and when he was intercepted by the police, he was on his way to deliver further drugs to other buyers.  The applicant, with nine previous convictions, was not entitled to the mitigating factor of being a first offender.

13. If the applicant had been charged with one single count of trafficking in a dangerous drug involving 0.78 gramme of “ice”, we would not say that a 3-year starting point is necessarily manifestly excessive.  If the applicant had only been charged with trafficking in 6.52 grammes of ketamine, a 3-year starting point would have been appropriate.

14. But this is a case of trafficking in more than one kind of dangerous drugs and a strict application of the sentencing tariff and the mathematical addition of the appropriate starting points for the different types of drugs can lead to unfairness.

15. In HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367, the Court of Appeal pointed out the difficulties when sentencing a defendant for trafficking in different quantities of drugs which, when individually considered, would attract different tariffs.  The Court of Appeal reviewed the different approaches to sentencing which had been adopted in a number of cases and concluded that the task of the sentencing judge was to “…sentence fairly, realistically and in a common-sense manner”.

16. The Court of Appeal had recommended the course that trial judges should adopt when sentencing in trafficking cases involving more than one type of dangerous drugs.  There are two different methods, namely “the individual approach” and “the combined approach” and which approach to be adopted depends on the circumstances of each case.

17. “The individual approach” involves fixing separate penalties for each drug in accordance with the relevant tariff and then adding up the different sentences relevant to the individual drugs.  However, on totality principle and in order to avoid a disproportionate sentence, the court should not simply mathematically add up the sentences suitable for each quantity of dangerous drugs because the mere addition of the sentences for each individual drug may lead to a higher overall sentence than if the whole quantity of the mixed drugs were of the more serious kind.

18. The court can also sentence a defendant on the total quantity of dangerous drugs rather than on the individual smaller quantities of different parcels of drugs (“the combined approach”).  “The combined approach” involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then making the necessary upward adjustment to take into account the presence of other (less serious) drugs. (See Held (1) in Yip Wai Yin (Supra))

19. However, when the drugs are quite different in quantity and potency, the individual approach is to be preferred (see HKSAR v Leung Chun Pong [2009] 6 HKC 272).

20. It is not entirely clear what was the approach that the judge had adopted.  She said she was adopting the combined approach, but as Ms Rosa Lo, for the respondent, properly points out in her written submissions that when the judge added the two 3-year starting points together, she appears to have adopted the individual approach.

21. Whatever is the correct approach and whichever approach that the judge had adopted, we have to consider whether the global starting point of 6 years in this case is fair, realistic and accords with common sense.

22. If the dangerous drugs had all been ketamine (a total of 7.3 grammes), the appropriate starting point under S for J v Hii Siew Cheng [2009] 1 HKLRD 1 would have been about 3½ years’ imprisonment, and if they had all been “ice”, the appropriate starting point under AG v Ching Kwok-hung [1991] 2 HKLR 125 would have been about 6 years’ imprisonment.

23. The judge had adopted a starting point which was appropriate if the drugs had all been “ice”.  Adopting a realistic and common-sense approach, we are of the view that the 6-year starting point is manifestly excessive when almost 90% of the drugs is ketamine, which is a much less potent drug than “ice”.

24. We are of the view, even taking into consideration the applicant’s criminal record and the way he had committed the offence, that the appropriate starting point is 5 years’ imprisonment.

25. The applicant had pleaded guilty to the charge and was entitled to the conventional one-third discount.  His sentence should have been 3 years and 4 months.

26. We therefore grant leave to the applicant to appeal against sentence and treating the application as the appeal proper, we allow his appeal.  The applicant’s sentence is reduced from 4 years to 3 years and 4 months’ imprisonment.