SECRETARY FOR JUSTICE v. LEE SIU KEI

CAAR 4/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2005

(ON APPEAL FROM DCCC NO. 646 of 2005)

____________________

____________________

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

1.  Leave was granted to the Secretary for Justice (the applicant) on 5 September 2005 to apply for a review of the sentence imposed on 19 August 2005 in the District Court by Judge Chua, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.  The respondent, aged 23, pleaded guilty to a charge of trafficking in 13.02 kilogrammes of cannabis in its herbal form and was sentenced to be detained at a Detention Centre.  Mr Saw SC, on the applicant’s behalf, submitted that this was wrong in principle and/or manifestly inadequate.

2.  The trafficking in this large quantity of drugs took place on 27 April 2005 at premises on the 5^th floor of an industrial building in San Po Kong and just outside the building.  It was uncovered by surveillance officers who were posing as workmen.  When the respondent was seen to be acting suspiciously just after he had left the building, he was intercepted and found to be carrying a bag containing just under a kilogramme of herbal cannabis.  He made admissions to the effect that he was doing this for someone else.

3.  The keys he was carrying were then taken from him and, on the information he provided to the officers, one of these was found to fit the cubicle which the respondent had rented at the premises.  Inside the cubicle, the police found a box containing 13 blocks of herbal cannabis together with a vacuum-packing machine and other packaging equipment.  Again, the respondent admitted his involvement saying that he was helping someone to deliver the drugs to another person and that it was his responsibility to rent the cubicle where they were stored.

4.  Later, at Wong Tai Sin Police Station, the respondent said that he had been given $3,000 with which to rent the cubicle and that he received $400 for each block of cannabis he delivered.  The vacuum-packing machine and the cannabis, according to the respondent, were delivered to him by an unknown male on the instructions of one ‘Ah Fu’ who, he said, had employed him three months earlier to deal with the drugs.  This confession, explaining how, in a variety of ways, he had been employed by someone else to act as a trafficker in drugs by storing, packaging and supplying them, remains unsubstantiated.

5.  This matter first came before the court on 5 August 2005.  After the Summary of Facts had been agreed by the respondent, the judge was provided with the details of the respondent’s only previous conviction.  This consisted of two offences which were unrelated to drugs and resulted in the respondent being placed on probation at the end of December 2001.  The judge declined to hear mitigation on this occasion and she indicated that she proposed to obtain a Detention Centre Report.

6.  The case was re-listed for sentence on 19 August 2005.  The Detention Centre Report which had been duly obtained, dated 18 August 2005, indicated that the respondent was a suitable candidate for a Detention Centre.  This assessment was based upon the respondent’s behaviour and attitude as well as his mental and physical fitness.

7.  The salient factors emerging from the report were as follows:

“Defendant dropped out of school after completing Form Three … in mid 1998.

……

… In the recent years, he worked as a transportation worker at ‘Ching Yeung Transportation Company’ in Kwun Tong until 2004.  Prior to his current remand, he [was] involved in illegal trade of Cannabis for around a month and earned around $400 for each kilogram of Cannabis he delivered …

……

          Defendant admitted that he had tasted Cannabis occasionally from 2000 to 2002.  The drug was provided free of charge by his triad peers.  Apart from that, he had never tasted other kinds of drugs before …

……

… In 2003, defendant moved away from home.  Lacking effective family sanction, he went astray …

……

… he came across some ‘Sun Yee On’ triad peers and regarded ‘Chi Hung’ as his ‘Big Brother’.  Under adverse peers’ influence, he was tempted to try Cannabis …

……

… Without direct family sanction, his life deteriorated sharply.  Impervious to well-meaning advice, defendant had frequent outside merriment with his triad peers … Instead of keeping his distance, defendant let his … peers bear him company, frequenting karaoke lounges and bars.

With weak self-control, greediness and strong peers’ influence, defendant [became] involved in illicit dealing of Cannabis under the introduction of his triad peer ‘Chi Hung’.  As revealed, he rented a flat in a factory building in order to store the Cannabis.  He worked as a delivery worker and delivered blocks of Cannabis to ‘Chi Hung’ under the latter’s instruction … He started such illicit trade of Cannabis since February 2005.  His misbehaviour led to his arrest for the outstanding offence that he was found in possession of Cannabis in his car and was arrested for the offence of ‘Possession of dangerous drugs’ on 28.2.2005 (Case No.: KCC 4435/2005).  The arrest showed no deterrent effect on him and he kept on engaging in the illicit trade of Cannabis during the bail period.  On 27 April 2005, he was eventually arrested by the police for the current offence …

……

… He stated that he committed the current offence in order to earn fast money ...” (Appeal bundle pp. 17-20)

8.  It is apparent from these extracts from the report that the respondent had formed various triad links and had been leading a fairly irresponsible life-style up to the time of his arrest.  On the more positive side, the report did, however, indicate that the probation order which the respondent had previously undergone had been satisfactorily completed and that the respondent’s father and step-mother continued to show concern for him.  Overall, one of the more serious aspects arising from the report about the respondent, aside from his association with triads, is that his previous arrest for possessing cannabis shortly before his present arrest seems to have had no effect on him whatever.

9.  The judge once again chose not to call upon counsel for the defence to mitigate having presumably decided in advance the means by which this case should be dealt.  Instead, she engaged in the following dialogue with prosecuting counsel:

“Ms Chan:  My Lady, there are tariffs for the trafficking in cannabis.  Do you wish to have them?

Court:         I have them, but the point is he’s 23 and I am taking the option for his rehabilitation.

Ms Chan:    Right.

Court:         But hand them up, they’ll be useful in another case.

Ms Chan:    Right.

Court:         Is this Chan Chi Man?  You’ve got Chan Chi Man?

Ms Chan:    Yes, I have.

Court:         I hadn’t actually looked up all of this.

Ms Chan:    Yes, very well.

Court:         Yes, tell the defendant to stand, please.”

(Appeal bundle p. 24)

10.  In her Reasons for Sentence, the judge briefly recounted the facts of the case before remarking that the respondent’s offence would have attracted a sentence of “4 years’ imprisonment upwards” for an amount in excess of 9 kilogrammes of cannabis resin, the more potent form of this drug, but that as this was over 13 kilogrammes of herbal cannabis, the respondent was “looking at” a starting point of 4½ years.  The judge continued later by saying:

“13.   Now, you are lucky because not everybody can get a favourable report for Detention Centre.  It depends on your mental attitude; it depends on whether you are physically fit.  You happen to be one of the lucky ones; otherwise, you are going to face a four-and-a-half-year prison sentence.

14.     I am not going to pretend or tell you that this is not going to be a tough few months ahead of you in Detention Centre.  It is tough, but it is short.” (Appeal bundle p. 12)

11.  Section 4(2)(a) of the Detention Centres Ordinance, Cap. 239, provides that the period of detention for a person of the respondent’s age is “not less than 3 months” and “not more than 12 months”.

12.  The sentencing guidelines for trafficking in cannabis in all its forms are to be found in Attorney General v Chan Chi-man [1987] HKLR 221.  Roberts CJ, giving the judgment of the court said (at page 224), using phraseology which was echoed by the judge in the present case, that for “over 9,000 grammes” of cannabis resin, “4 years’ imprisonment upwards” would be appropriate after trial.  The Chief Justice continued by dealing with the approach to the remaining two forms in which cannabis is generally found, saying (at pages 224-225):

“So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil.

The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol.

The concentration of tetrahydrocannabinol in herbal cannabis is up to about 8 % of the bulk weight. In cannabis resin, tetrahydrocannabinol concentration is about 15 %. In cannabis oil, it is 60%.

It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly.”

13.  It is plain, therefore, that when sentencing for an offence of trafficking in herbal cannabis, the starting point should normally be adjusted downwards, if at all, based upon the cannabis resin tariffs.  This is to enable the court to take into account the fact that the concentration of tetrahydrocannabinol (THC) in cannabis resin is higher than it is in the herbal variety.  Towards the end of the judgment, the court recognised that “better evidence” might become available as to the dangerous effects of cannabis.  This, of course, in the light of a number of recent articles written by members of the medical profession, may yet be so.  New scientific evidence has, however, been forthcoming to the effect that the concentration of THC to be found in cannabis resin is about “four times higher” than the average found in herbal cannabis.  This is covered by the judgment in Attorney General v Tuen Shui-ming and Anor [1995] 2 HKCLR 129 at 135 and, accordingly, it was decided that the THC concentrations referred to in Chan Chi-man were no longer to be regarded as correct.  Despite this, no adjustment was made to the guideline sentencing bands and the tariffs remained the same.  Power VP, in Tuen Shui-ming  (at page 133), indicated that:

“… The court in Chan Chi-man was plainly dealing with the total volume of cannabis resin and that is the amount to which the tariff applies. If, for example, 9,000 grammes was seized, then the appropriate starting point would be 48 months. It would be proper for the sentencing court then to adjust that figure to a limited extent in accordance with the concentration of THC. In the present case, given that more than 50 kilogrammes was involved, seven years would have been an appropriate starting point. This could properly have been varied to six years given the very low concentration.”

14.  Shortly after the decision on 9 June 1995 in Tuen Shui-ming, this court, on 31 October 1995, again made it clear in R v Chong Chak-on [1996] 1 HKC 152 at 164 that the sentence is “governed by the weight of the herbal cannabis”.  In that case, where a 20-year sentence for trafficking in over 388 kilogrammes of herbal cannabis was upheld, the court said that the “THC content is relevant only insofar as it allows the court to take a more lenient view of herbal cannabis than it would of an equivalent amount of cannabis resin”.

15.  The principle submission made by Mr Saw was that the Detention Centre order was wrong in principle as well as manifestly inadequate for a case concerning drugs in such a large quantity, being supplied on what was plainly a regular commercial basis.  As such, the order failed to reflect the true gravity of the offence and was inappropriate in circumstances where a term of imprisonment was inevitable barring wholly exceptional circumstances of which, Mr Saw submitted, there were none.  From a glance at the Detention Centre Report, the judge would have been aware that the respondent, who was almost 23½ at the time of sentencing, had a previous record, was on bail at the time of the offence for possession of cannabis and had formed triad associations while living apart from his family for two years.  More importantly, this was a large quantity of drugs and the respondent was playing an important role in their distribution.

16.  Mr Mughal, on the respondent’s behalf, submitted that the respondent had “pleaded guilty, saved some court time and had shown extensive co-operation upon his arrest”.  He contended that as the judge had a discretion to put rehabilitation at the forefront of other sentencing considerations, and that, as the “short, sharp shock” approach was no soft option, we should not interfere with the sentence she had imposed.  Mr Mughal indicated, in the course of his most able address to us, that he had told us everything which might have been said on the respondent’s behalf in mitigation if counsel had been given an opportunity to mitigate in the court below.

17.  We have considered all the submissions made to us, but we are left in no doubt that the Detention Centre order was wrong in principle for a case as serious as this.  There was nothing in this case to warrant any departure from the guidelines and we are left at a complete loss to understand why the judge saw fit to adopt the course she did.

18.  In our opinion, a starting point of about 5 years, taking into account all the circumstances, including the fact that the respondent was on bail at the time of the offence, would have been appropriate but, having regard to the judge’s indication that she would have taken 4½ years, we propose to adopt the judge’s lower starting point.  Reducing this by a third to reflect the respondent’s plea of guilty, the resulting sentence would be one of 3 years.  Given that this is a review and that the respondent has served about 5 months in the rigorous regime of a Detention Centre, we propose to substitute a sentence of 2 years and 9 months’ imprisonment for the existing order.

19.  Accordingly, we shall allow this application and substitute a sentence of 2 years and 9 months’ imprisonment for the Detention Centre order.