MARK ANTHONY SEABROOK v. HKSAR

FACC No. 6 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 1998 (CRIMINAL)

(ON APPEAL FROM CACC No. 364 OF 1997)

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Between:

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton PJ:

2. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ching PJ:

3. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

4. It is only in the rarest of cases that an appeal against sentence will reach this Court. This is such a case: there being conflicting decisions of the Court of Appeal on a matter of sentencing principle. In granting leave to appeal to this Court, the Appeal Committee certified the involvement of two closely related points of law of great and general importance. They are the points raised by these two questions of sentencing principle:

(1) Do sentencing guidelines which reduce sentences ever benefit even those who were sentenced before the guidelines were laid down? (By a person being "sentenced", I mean his having a sentence passed upon him at first instance.)

(2) If so, in what circumstances?

In June last year a division of the Court of Appeal answered the first question in the affirmative, and reduced a sentence in circumstances very similar to those of the present case. But one month later the division of the Court of Appeal from whose judgment this appeal is brought answered the same question in the negative, refused to reduce this appellant's sentence, and said that the other division's decision was per incuriam. The Appeal Committee granted the appellant leave to appeal on these two questions and also on the basis of an arguable case of substantial and grave injustice having been done to him.

5. Mr Mullick for the appellant submits as follows. Sentencing guidelines which reduce sentences do in certain circumstances benefit even those who were sentenced before the guidelines were laid down. And such circumstances include those of the present case.

6. Mr Luk for the respondent submits as follows. Sentencing guidelines, whether they increase or reduce sentences, only apply to persons whose offences were committed after the guidelines had been laid down. But a sentencer has a discretion to take into account sentencing guidelines which reduce sentences even if the guidelines had not been laid down until after the commission of the offence or offences in question. This discretion is, however, possessed only by the sentencer. No appellate court has any such discretion.

The convictions

7. On 9 May 1997 the appellant was convicted after trial before Deputy Judge Chow in the District Court on three dangerous drugs charges laid under the Dangerous Drugs Ordinance, Cap. 134. The 1st and 2nd charges were of trafficking, contrary to s.4(1)(a) and (3). Both of these offences were committed on 3 September 1996. The 3rd charge was of simple possession, contrary to s.8(1)(a) and (2). This offence was committed on 4 September 1996.

8. The type of drug the subject-matter of the trafficking charges was, to give it its full name, "methylenedioxymethamphetamine hydrochloride". This drug is sometimes referred to as "MDMA". Most commonly it is known as "ecstasy". That is what I will call it.

9. As for the type of drug the subject-matter of the simple possession charge, it was cannabis.

The facts in outline

10. In outline the facts relevant to the appellant's offences were these. At the time the appellant was in his late 30s. He was on a visit to Hong Kong from Britain. On the evening of 3 September 1996 in the coffee shop of an hotel in Kowloon City he offered to sell someone 350 tablets of ecstasy. He added that he had three sample tablets of that drug hidden under a cushion on a sofa in the room. The person to whom the offer was made turned out to be an undercover police officer. So the appellant was arrested. The three sample tablets hidden under the cushion were seized by the police. These three tablets were found to contain 0.20 grammes of ecstasy. They are the drugs the subject-matter of the 1st charge, being one of trafficking.

11. Upon arrest the appellant was immediately taken to Homantin Police Station. There he was seen attempting to discard a piece of paper. It was a luggage receipt issued by the hotel in which he had been arrested. Using this receipt the police recovered a bag belonging to the appellant. There was a cassette tape inside the bag. Hidden in the cassette tape were 349 tablets. These 349 tablets were found to contain 21.95 grammes of ecstasy. They are the drugs the subject-matter of the 2nd charge, also being one of trafficking. The retail value of the 352 tablets of ecstasy covered by the two trafficking charges was in the region $49,000.

12. On 4 September 1996, one day after the appellant's arrest, the police went to the premises in Tsim Sha Tsui where he had been staying and conducted a search there. Doing so they found 7.13 grammes of cannabis hidden inside a sock. These are the drugs the subject-matter of the 3rd charge, being one of simple possession. There is no evidence of their value.

The sentence

13. Having on 9 May 1997 been convicted after trial, the appellant was on 30 May 1997 sentenced to a total of 4 years, 4 months and 7 days' imprisonment. This total was reached by way of two concurrent terms plus one consecutive term. The two concurrent terms were of 18 months on the 1st charge (trafficking in three tablets containing a total of 0.20 grammes of ecstasy) and 4 years and 4 months on the 2nd charge (trafficking in 349 tablets containing a total of 21.95 grammes of ecstasy). The consecutive term was of 7 days on the 3rd charge (simple possession of 7.13 grammes of cannabis).

14. Sentencing guidelines laid down by the Court of Appeal for the assistance of sentencing judges are common and useful. But at the time when the appellant was sentenced in the District Court, no such guidelines existed in respect of ecstasy.

The sentencing judge's approach

15. Deputy Judge Chow's attention was however drawn to the decision of Leong J (as he then was) in R. v. Dullage [1996] 2 HKCLR 116, an appeal from the Magistrate's Court to the High Court. Leong J took the following view as to sentences for trafficking in ecstasy. They should be considerably higher than sentences for trafficking in cannabis or methqualone (for which the Court of Appeal laid down guidelines in AG v. Chan Chi Man [1987] HKLR 221). And they should be almost as severe as sentences for trafficking in heroin (for which the Court of Appeal laid down guidelines in R. v. Lau Tak Ming [1990] 2 HKLR 370).

16. In sentencing the appellant, Deputy Judge Chow followed the Dullage approach. He noted that the Lau Tak Ming guidelines provided for a starting point of 5 to 8 years for trafficking in between 10 and 50 grammes of heroin. The appellant's conviction under the 2nd charge was for trafficking in 21.95 grammes of ecstasy. The judge took the view that 51/2 years "would be justified" under the Lau Tak Ming guidelines for trafficking in that quantity of heroin. On that footing, he considered that "it would not be unreasonable" to sentence the appellant to 4 years and 4 months' imprisonment under the 2nd charge, which is what he did.

The Lee Tak Kwan guidelines

17. Initially the appellant took out an application for leave to appeal to the Court of Appeal against conviction only. Later he withdrew that application. And then on 4 September 1997 he took out an application for leave to appeal, out of time, to that court against sentence.

18. On 31 March 1998 he appeared, without legal representation, before the Court of Appeal. That court adjourned his application pending its decision in the appeal of a Mr Lee Tak Kwan who had arrived in Hong Kong by air on 16 August 1996 and been caught at customs in possession of 733 grammes of ecstasy meant for trafficking. Mr Lee pleaded guilty and was on 11 March 1997 sentenced by Stuart-Moore J (as he then was) to 12 years' imprisonment.

19. On 26 May 1998 the Court of Appeal gave judgment in Mr Lee's case, which is now reported as HKSAR v. Lee Tak Kwan [1998] 2 HKLRD 46. The Court of Appeal reduced Mr Lee's sentence to 5 years' imprisonment, and laid down sentencing guidelines for ecstasy trafficking.

20. These guidelines and the reasons for them are set out with admirable clarity (at p.55 C-J) in the judgment of the court given by Mortimer VP:

"The aim must be to achieve a scale of sentencing for trafficking which will deter those who seek to profit out of the abuse of the drug which has no lawful medical use. Those who must principally be deterred are those who import or manufacture the drug or who indulge in its syndicated supply.

At the same time a balanced approach is required. As a drug which is not addictive and has at most a very low level of toxicity, it does not represent a major threat to society when compared with drugs of high toxicity and addiction such as heroin. But this is not to say that it represents no threat. Idiosyncratic effects are known which can, when combined with prolonged exertion or other drugs, lead in isolated cases to serious medical complications and even death. On the other hand such idiosyncratic effects can arise from almost any other drug which is taken.

There is some suggestion that young people may regard ecstasy as a "safe" drug and that they may think that the authorities are "relaxed" about its control. If so, these impressions must be corrected.

Balancing these factors we consider that the appropriate guidelines to adopt for sentencing after trial having regard to narcotic content are as follows:

Up to 25 gms - entirely within the discretion of the sentencer

Over 25 to 400 gms - 2 years to 4 years

400 to 800 gms - 4 years to 8 years

Over 800 gms - 8 years and upwards

At the lower levels, it will be necessary for the sentencer to make a careful assessment of the real criminality involved. For trafficking in very small quantities, immediate custodial sentences for first offenders may not always be necessary.

An arithmetic progression for trafficking in much higher quantities than 800 gms should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances.

Some increase of the levels will be justified, for example, where there is evidence of importation or manufacture or other aggravating circumstances for which the accused is responsible."

21. If new information on ecstasy and its abuse were hereafter to emerge and build up to the point where the Court of Appeal considers it appropriate to revisit the Lee Tak Kwan guidelines, that court will no doubt do so. But unless and until that is done and results in a new set of guidelines, the Lee Tak Kwan guidelines stand.

If applied to the appellant's case

22. Even if some increase were to be made on the footing that the appellant had imported the drugs into Hong Kong, his total sentence could not properly be left at anything in excess of 2 years' imprisonment if the Lee Tak Kwan guidelines were applicable to his case.

But the Court of Appeal refused to apply them to his case

23. His complaint is against the Court of Appeal's refusal to apply those guidelines to his case.

24. He was before that court again on 16 July 1998. This time he was represented by counsel. The Court of Appeal (Mayo and Leong JJA and Stock J) heard argument and reserved its judgment. Two months later, on 15 September 1998, it delivered judgment refusing to disturb the sentences passed on the appellant.

25. The appeal to this Court is against that judgment.

For these reasons

26. In deciding against the appellant, the Court of Appeal took the view that the Lee Tak Kwan guidelines did not apply to his case. As to why not, Leong JA, giving the judgment of the court, gave these reasons:

" In our view, the principle that the sentence for an offence should be in accordance with the prevailing practice of the court at the time of sentence is well established. This is to ensure finality in court proceedings. The guidelines in Lee Tak Kwan were not part of the sentencing practice prevailing when the offences were committed since they did not exist at that time. There was nothing to indicate that they should have retrospective effect. It matters not if they increased or reduced the prevailing sentences. The same principle applied. HKSAR v. Humphries [1998] 2 HKLRD 520 is a case decided per incuriam. If after 18 months, long since the offences were committed, this Court is to allow the sentences to be reviewed and reduced because the courts have since taken a less serious view of the offences in the light of new evidence or change in social circumstances, this will not only be against established principles but also likely to open a good gate for those sentenced prior to the change regardless of how long before, who wanted to have the benefit of it. Then there will be no finality. There is no basis for applying the guidelines in the present case to reduce the sentence."

Humphries's Case

27. HKSAR v. Humphries [1998] 2 HKLRD 520, condemned as per incuriam by the Court of Appeal in the present case, was itself a decision of the Court of Appeal (Power VP and Mayo and Stuart-Moore JJA). Mr Humphries was in his mid 20s at the time of his offences. He pleaded guilty to three counts of trafficking: one in cocaine, one in cannabis and one in ecstasy. The ecstasy trafficking, which was in 56.43 grammes of that drug, took place on 19 September 1996 (which, as it happens, was the same month as the one in which the appellant in the present case committed his offences).

28. In passing sentence on Mr Humphries on 11 August 1997, Mr Recorder Tang SC adopted a starting point of 7 1/2 years' imprisonment for the ecstasy trafficking count (and then reduced the term thereon to 5 years' imprisonment to give credit for the guilty plea thereto). This was of course before the Lee Tak Kwan guidelines became available (which was not until 26 May 1998).

29. Giving the judgment of the court on 18 June 1998, Stuart-Moore JA said this (at pp 525J-526A) in regard to the appropriate starting point for Mr Humphries's offence of having trafficked in 56.43 grammes of ecstasy in September 1996:

"In HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, this court has indicated that for ecstasy, with a narcotic content of between 25 to 400 gms, sentences of between 2 to 4 years are appropriate. It is clear, therefore, that the sentence after plea of 5 years on this charge must be reduced. We think that the appropriate starting point for the amount involved in this offence was 2 years and 3 months' imprisonment."

30. It may be mentioned for the sake of completeness that Mr Humphries's total sentence did not change. Although the Court of Appeal reduced the cannabis and ecstasy terms, it made them consecutive to the cocaine term whereas the recorder had made them concurrent therewith. By a different route, therefore, the same total was reached. The reason why the Court of Appeal made the cannabis and ecstasy terms consecutive to the cocaine term was simply this: the cocaine trafficking had taken place on 24 May 1996 four months before the cannabis and ecstasy trafficking on 19 September 1996. It therefore does not detract from the point which arises in the present appeal.

The ways in which sentencing guidelines come about

31. Sentencing guidelines come about in a number of ways. No useful purpose would be served by attempting to identify all of them. But it is appropriate to consider some of them.

32. In the course of hearing appeals against sentence and reviews of sentence, the Court of Appeal will, over a period, detect a general level of sentence in respect of a particular offence. There will however be a number of strays: some on the high side and some on the low side. In such circumstances, the Court of Appeal will very properly consider it appropriate to assist sentencing judges by laying down a set of guidelines for that offence. If the offence is one such as robbery, the scale of seriousness will be calibrated according to circumstances of aggravation. These would be in the nature of factors such as: the involvement of a number of robbers rather than a lone robber; the use of weapons; the gagging or tying-up of victims, the invasion of domestic premises; and so on.

33. If the offence is trafficking in a dangerous drug, then the guidelines will naturally lend themselves to something in the nature of a table with each band defined by quantity. And different types of drugs will attract different sets of guidelines appropriate to the harm which they do.

34. If a new type of drug appears on the scene, sentencing judges will tend to sentence in respect of them by reference to existing guidelines for some other type of drug, making such adjustments as seem appropriate. Over a period, more and more becomes known about the new drug: and eventually it receives a set of guidelines of its own.

How the Lee Tak Kwan guidelines came about

35. That is how the Lee Tak Kwan guidelines came about. Judges were sentencing ecstasy traffickers on the assumption that there was a high degree of similarity between ecstasy and heroin. Mr Lee Tak Kwan was sentenced on that assumption. When he appealed against sentence, the Court of Appeal had to consider whether that assumption was correct.

36. The Court of Appeal was assisted by the evidence of a number of experts between whom there was no material difference. Ecstasy is, it would seem, favoured by young people given to corybantic activities. And while it is no doubt very harmful, it does not appear to be addictive. Giving the judgment of the court, Mortimer VP said at p.52 A-F that:

"Ecstasy is a psychotrophic drug which no longer has any medical use permitted by law. Its abuse is normally associated with marathon 'rave' dance sessions staged at venues which can accommodate large numbers of people with loud repetitive music and psychedelic light shows. The normal dose is one tablet (average 114 mg of narcotic content). Initial effects occur after 30 to 60 minutes. They peak at about 90 minutes and may persist for many hours. Frequent abuse leads to tolerance with increased undesirable effects.

The reported effects - both desirable and undesirable - vary but the most common is sensory enhancement involving a feeling of 'closeness' to others and a relaxed positive loving state of mood. Undesirable effects appear to increase with successive doses. These include anxiety, depression, mood swings, paranoia, panic attacks and loss of appetite. Visual hallucination, muscle aching and fatigue are also reported.

In isolated cases the drug has idiosyncratic effects leading to serious medical complications and, in rare cases, death. Deaths are almost entirely associated with either prolonged exertion during 'rave' dancing or the additional effect of other drugs. These deaths are not associated with overdosing as the drug is not toxic. Professor Critchley's report refers to a reported overdose of 42 tablets accompanied by no symptoms other than a 'hangover' with tachycardia and hypertension.

Most important 'ecstasy' is not addictive. Even psychological dependence is rare."

37. Next Mortimer VP turned to the scale on which ecstasy abuse had been taking place in Hong Kong. He noted (at p.52 F-I) that the statistics show that:

"... prior to 1996 the seizures were wholly insignificant. In 1996, however, there was a marked increase. 14,295 tablets were seized in 39 cases. This increase escalated in 1997. 49,613 tablets were seized and 67 cases were involved. The government laboratory analyses show that the average quantity of drug in each tablet is 114 mg and 90 per cent of the tablets fall within the range of 100 to 130 mgs of narcotic content. This indicates that the total seizures during 1997 amounted to about 5.5 kgs of the drug. This is a serious situation but the amount is much less than some other drugs of abuse.

With this in mind, it is useful to set out the comparison chart for 1996 which was put before us by Mr Lee Chau Wing, the senior chemist at the Hong Kong government laboratory.

As to the value of the illegal trade, there is little evidence before us save that the street price for one tablet is said to be $250 or more. The street value of the seizures in 1997 therefore was over $12 million. We bear in mind that the street value may be very much higher than that paid in larger transactions."

The answer to the first certified question

38. The foregoing demonstrates that the first certified question "Do sentencing guidelines which reduce sentences ever benefit even those who were sentenced before the guidelines were laid down?" is to be answered "Yes". For it demonstrates that the state of affairs on which sentencing guidelines are based tend to have been in existence for an appreciable period prior to the laying down of the guidelines. And it is inherently probable that during that period a number of persons would have been sentenced at levels other than those called for by the guidelines.

39. Their sentences would not be increased upon review just because they were imposed at lower levels than those set by the guidelines. The law is more humane than that. But the position is different if their sentences were imposed at higher levels than those set by the guidelines. For that may show that they had been sentenced more severely than the law has come to realize is appropriate. And subject to the need for finality, justice may then demand that their sentences be reduced so as to remove that inappropriate measure of severity. Society has no interest in imprisoning people unnecessarily or keeping them in prison longer than necessary.

40. It is to be borne in mind that the process of sentencing the appellant was still extant when he was before the Court of Appeal. This is because - as the Court of Appeal laid down in R. v. Sze Tak Hung [1991] 1 HKLR 109 at p.113 and repeated in Re C.W. Reid [1994] 2 HKLR 14 at p.24 - the sentencing process does not end upon the passing of sentence at first instance but continues until the question of sentence has been dealt with by an intermediate appellate court (the Court of Appeal in appeals from the Court of First Instance of the High Court or the District Court, and the Court of First Instance of the High Court in appeals from the Magistrate's Court). The intermediate appellate courts routinely deal with sentence. And in practice such a court is almost always the final court dealing with sentence. So it is only right that the sentencing process be viewed as one which continues until an intermediate appellate court has dealt with the question of sentence.

41. True it is that the time for the appellant to apply for leave to appeal to the Court of Appeal against sentence had expired. But his failure before that court was not due to its unwillingness to extend time. It had adjourned his case to await the outcome of Lee Tak Kwan's case. And when it eventually decided against the appellant, it did so - after going into the merits of the case and deliberating for two months - on the basis of its view on a point of sentencing principle, namely that Humphries's case had been decided per incuriam, and that sentencing guidelines which reduce sentences never benefit persons who were sentenced before the guidelines were laid down.

The answer to the second certified question

42.The reasons why the first certified question "Do sentencing guidelines which reduce sentences ever benefit even those who were sentenced before the guidelines were laid down?" is to be answered in the affirmative, coupled with the point just noted as to the scope of the sentencing process, serve to provide an answer to the second certified question "If so, in what circumstances?" The answer so provided, while not necessarily exhaustive, is sufficient for the proper disposal of the present appeal. And it is along these lines. Sentencing guidelines which reduce sentences will benefit even those who were sentenced before the guidelines were laid down provided that:

(i) their offences were committed at a time when the state of affairs on which the guidelines are based was in existence;

(ii) their sentences were imposed at higher levels than those set by the guidelines; and

(iii) the sentencing process is still extant.

43. As to that third condition, this should be understood. If the time for appealing to, or seeking leave to appeal to, the appropriate intermediate appellate court against sentence has expired, the sentencing process can no longer be regarded as extant unless that court sees fit to entertain the matter on the merits despite such expiry. And the court would not be automatically obliged to do so simply because someone is seeking to take advantage of sentence-reducing guidelines laid down after he was sentenced. It would be a matter of a discretion to be exercised in the light of all the circumstances.

44. The foregoing is reinforced by article 12(1) of the Bill of Rights which, repeating article 15(1) of the International Covenant on Civil and Political Rights (which treaty is given domestic effect by Article 39 of the Basic Law) provides that: "If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby". In the circumstances referred to in the preceding paragraph, it could be said, if it were necessary to rely on article 12(1) of the Bill or article 15(2) of the Covenant, that the guidelines make provision for the imposition of a lighter penalty.

45. In the course of the hearing, the question was raised: what if persons who received deterrent sentences under guidelines prevailing during a period of prevalence were some time thereafter to seek to take advantage of sentence-reducing guidelines laid down after the cessation of such prevalence? The answer, as it seems to me, is this. Quite apart from and more fundamental than the hurdle of being out of time, it follows from what I have said - but it is worth spelling it out nevertheless - that sentence-reducing guidelines will not assist previously sentenced persons if the reduction is based on an amelioration of the situation since the time when they were sentenced. Thus if they were sentenced during a time of prevalence, they will receive no benefit from the cessation thereafter of such prevalence. After all, the severe sentences passed on persons like them may have caused or contributed to such cessation. The guidelines simply would not operate so as to make provision for a lighter penalty for them.

46. It is neither necessary nor desirable to attempt to lay down what ought to be done in those cases where the sentencing process is no longer extant because the intermediate appellate court had already dealt with sentence. I do no more than note the following possibilities. One possibility, which may be appropriate where there is a very great difference between the sentence passed and the one called for by the guidelines in question, is to invite the Chief Executive to exercise his power under Article 48(12) of the Basic Law to commute a part of the sentence. Nor would I rule out, in such a case, the alternative possibility of an appeal to this Court on the basis of an extreme case requiring a final appeal as to sentence in order to undo a substantial and grave injustice.

Applying these answers to this appellant

47. Mr Lee, Mr Humphries and this appellant have the following in common:

(1) Each of them trafficked in ecstasy.

(2) Each did so in 1996. (Mr Lee on 16 August; Mr Humphries on 19 September; and the appellant on 3 and 4 September).

(3) Each was sentenced in 1997. (Mr Lee on 11 March; Mr Humphries on 11 August; and the appellant on 30 May).

(4) Each appeared before the Court of Appeal in 1998. (Mr Lee on 27 March and 26 May; Mr Humphries on 18 June; and the appellant on 31 March, 17 July and 15 September).

(5) At the time when each of them was sentenced, the sentencing judge believed that ecstasy was almost on a par with heroin.

(6) Each was sentenced in that belief, and received sentences almost as severe as those for heroin trafficking.

(7) By the time each appeared before the Court of Appeal and while the sentencing process was still extant, it was realized that ecstasy, bad as it was, was not nearly as bad as heroin.

Now comes the difference. Mr Lee and Mr Humphries had their sentences for trafficking in ecstasy reduced by the Court of Appeal in the light of that realization. But despite such realization, the Court of Appeal refused to reduce this appellant's sentence for the same offence.

48. In these circumstances, once the foregoing answers to the certified questions are applied to this appellant, it becomes clear that he is entitled to a reduction of sentence to bring his punishment in line with the Lee Tak Kwan guidelines. In my judgment, the Court of Appeal was right in Humphries's case and wrong in the present case.

Result

49. By the time when the appellant appeared before the Appeal Committee on 23 November 1998, he had been in custody for almost 2 years and 3 months since his arrest on 3 September 1996. When it granted him leave to appeal, the Appeal Committee also granted the appellant bail pending appeal.

50. I would allow this appeal so as to reduce the appellant's sentence to a total of 2 years' imprisonment by way of three concurrent terms: being of 6 months on the 1st charge, 2 years on the 2nd charge and 7 days on the 3rd charge. He has already served that sentence. So that would leave him now free from custody and free even from bail.

Lord Nicholls of Birkenhead NPJ:

51. I agree with the judgment of Mr Justice Bokhary PJ.

Chief Justice Li:

52. The Court being unanimous, the appeal is allowed with the result set out at the end of the judgment of Mr Justice Bokhary PJ.

Representation: