HKSAR v. WONG NAM NGAN

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JUDGMENT

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Suffiad J (giving the judgment of the Court):

The charges

1. On 3 September 2001, the applicant pleaded guilty in the District Court before Deputy Judge Candy to five charges of trafficking in a dangerous drug. All five offences were committed respectively on 30 November, 2, 6, 16 and 20 December 2000 at or in the vicinity of the Yo Yo discotheque in Mody Road. The 1^st charge involved one tablet containing 140 milligrammes of 3, 4-methylenedioxymethamphetamine, commonly known as "ecstasy". The 2^nd charge involved two tablets containing 73 milligrammes of methamphetamine, commonly called "ice" mixed with a total of 39 milligrammes of diazepam. The 3^rd charge involved two tablets containing 280 milligrammes of ecstasy. The 4^th charge involved two tablets containing 270 milligrammes of ecstasy and 170 milligrammes of ketamine hydrochloride. The 5^th charge involved two tablets containing 60 milligrammes of ketamine and 380 milligrammes of ecstasy as well as a powder containing 280 milligrammes of ketamine.

The sentences imposed

2. After calling for suitability reports as to the Training Centre and hearing mitigation, the judge sentenced the applicant on 19 September 2001. He imposed two years' imprisonment on the 2^nd charge. On each of the 1^st, 3^rd, 4^th and 5^th charges, he imposed 16 months' imprisonment to run concurrently with one another. Taking into account the principle of totality, he ordered four months of the concurrent sentences to be served concurrently with the two years' sentence on the 2^nd charge, therefore effectively making the overall sentence to be one of three years' imprisonment.

3. The applicant now applies for leave to appeal against the sentences imposed.

The facts

4. The offences were discovered as the result of undercover police operation conducted by three police officers, namely PW1, PW2 and PW3, on each of the days referred to in the charges.

5. On the 1^st charge, PW1 and PW2, acting as customers in the Yo Yo discotheque, were approached by the applicant at around 2.05 a.m. on 30 November 2000, and were asked by him whether they wanted to buy something. PW1 replied that she wanted to buy a tablet of "Lo Fing". The applicant told her that it cost $120. The applicant then took out one pink tablet of ecstasy and handed it over to PW1 who paid the applicant $120. The applicant introduced himself as "On Chai". He also gave PW1 his mobile telephone number.

6. The tablet was later sent to Government Laboratory where it was examined. It was confirmed to be the dangerous drug referred to in the 1^st charge.

7. Concerning the 2^nd charge, similar operation was conducted in the same discotheque on 2 December 2000. At around 3.45 a.m., the applicant approached PW1 and PW3 and asked PW1 if she wanted anything. PW1 replied yes. The applicant then asked how many tablets she wanted. PW1 replied two. The applicant then took out a small bag from the pocket of his trousers, took out two tablets from it and handed them over to PW1. PW1 paid the applicant $240. The two tablets were later examined at the Government Laboratory and were found to contain the drugs referred to in the 2^nd charge.

8. As to the 3^rd charge, at around 4.50 a.m. on 6 December 2000, PW1 and PW2 met the applicant in the same discotheque. The applicant asked PW1 whether she wanted any "Fing". PW1 said she wanted two tablets. PW2 gave $240 to the applicant. The applicant handed back $40 to PW2 and said that was "Nike" which cost only $100 per tablet. The applicant then took out two tablets from a cigarette box and handed them over to PW2. The two tablets were later examined at the Government Laboratory and were found to contain the drugs referred to in the 3^rd charge.

9. In respect of the 4^th charge, at around 2.10 a.m. on 16 December 2000, PW1 met the applicant outside the same discotheque. The applicant asked if she wanted anything. PW1 told the applicant that she wanted "K Chai". The applicant told PW1 it cost $100 per packet. PW1 said she wanted one packet of "K Chai" and two tablets of "Fing". The applicant asked for $300 which PW1 handed over to the applicant. The applicant then left. After about 15 to 20 minutes, the applicant returned and handed one packet of ketamine and two tablets of ecstasy to PW1. These were later examined at the Government Laboratory and were confirmed to contain the dangerous drugs referred to in the 4^th charge.

10. For the 5^th charge, at around 2.55 a.m. on 20 December 2000, PW1 and PW2 went to the same discotheque. On this occasion, PW1 called the applicant by phone. During their telephone conversation, the applicant asked PW1 if she wanted anything. PW1 replied that she wanted two tablets of "Fing" and two packets of "K Chai". The applicant then asked PW1 to meet at the bar counter inside the discotheque. Thereafter. PW1 and PW2 went to and met the applicant at the bar counter. The applicant told PW1 to pay first. PW1 therefore handed over a $500 banknote to the applicant which was a marked banknote. The applicant told PW1 that they only cost $440 and he handed $40 back to PW1 as change. The applicant then handed two tablets of ecstasy and two packets of ketamine to PW1. At around 3.23 a.m. on the same day, the applicant was arrested inside the men's toilet of the discotheque. The marked banknote was recovered from the applicant's pocket. The two tablets and the two packets were later examined at the Government Laboratory and were confirmed to contain the drugs referred to in the 5^th charge.

Sentencing remarks

11. After hearing mitigation and after reviewing the report called for, the judge noted that the applicant has been abusing drugs since 1996 and that he had been to the Drug Addiction Treatment Centre (DATC) three times. He particularly noted that having left school, the applicant was unable to secure stable employment and eventually became involved with triads and became involved in the type of offence with which he was charged and other unlawful activities. As the applicant was 21 years of age at the time of sentencing, the applicant was outside the scope of the Training Centre Ordinance and was not considered suitable for detention in a Detention Centre because of his drug abuse and because of the serious nature of the offences. The judge observed that although the quantities of the various drugs in this case were not large, it was the applicant's persistence in the trafficking activities which made this a serious case. After referring to HKSAR v. Yau Wai Hang, Cr. App No 80/2001, HKSAR v. Li Wai Man, HCCC No. 214/2000 and HKSAR v. Lee Tak Kwan [1998] 2 HKLRD 46, the judge adopted a three-year starting point on the 2^nd charge. On the other four charges, the judge adopted a starting point of two years. He then deducted a third from each of the starting points to take into account the applicant's plea of guilty. He stated, however, with regard to totality:

"It seems to me that the proper overall sentence for all of these offences would be imprisonment for three years in total."

To achieve the total sentence he had in mind, the judge sentenced the applicant to two years' imprisonment on the 2^nd charge. The 16 months' imprisonment on the other charges were ordered to run concurrently with one another, four months of which were ordered to be served concurrently with the sentence imposed on the 2^nd charge. The overall sentence, therefore, came to three years' imprisonment.

Grounds of Appeal

12. Mr Boyton on behalf of the applicant complained that the sentences, individually and cumulatively in respect of their overall effect, were manifestly excessive.

13. In particular he submitted that the judge had erred in using three years as a starting point for the 2^nd charge when the amount of ice was well under a gramme, being 73 mg, which was mixed with 39 mg of diazepam. He relies on what was said by this court in Yau Wai Hang, CACC No.80/2001.

14. Secondly he submits that the starting point of two years in respect of charges one, three, four and five are also manifestly excessive. In so submitting he relies on the decisions in HKSAR v. Chu Ching Tak, HCCC No.164/2001 and HKSAR v. Lee Tak Kwan [1998] 2 HKC 371.

Respondent's reply

15. Mr Tam, on the respondent's behalf in his skeleton submission which he adopted submits that the real question for this court to determine in this appeal was not whether the sentence on the individual charges could properly be described as manifestly excessive so much as whether the totality of the sentences achieved a just result in all the circumstances of this case.

16. In so doing, Mr. Tam submitted that the criminality of the applicant in respect of these offences is shown by the following matters:

17. We are grateful to counsel on both sides for the assistance which they have rendered in their helpful submissions.

Decision

18. We should state at once that in our view, it is the overall sentence which has to be looked at given the entire circumstances of this case in determining whether the sentence passed on the applicant is manifestly excessive. That question is not to be answered by a microscopic examination of the individual sentences or starting points used by the judge in arriving at the overall sentence.

19. This court has said time and again that guidelines for sentencing are not to be treated as strait-jackets for the sentencing judge. Here the judge correctly observed when sentencing this applicant that although the quantities of the various drugs in each of the charges in this case are not large, it was the applicant's persistence in the trafficking activities which made this a serious case.

20. Moreover, we fully endorse his views when he said with regard to totality:

"It seems to me that the proper overall sentence for all of these offences would be imprisonment for three years in total."

21. In a proper case, a sentencing judge may sentence at a higher level than the guidelines laid down and this was only too well recognized by Mortimer VP when giving the judgment in HKSAR v. Lee Tak Kwan when he said at page 55:

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

22. It may be that the sentence and/or the starting point for each of the charges, when looked at individually, was on the high side. However, given the full circumstances and the criminality of the applicant as pointed out by counsel for the respondent, we do not see that the overall sentence of three years can be said to be manifestly excessive in the present case.

23. Nor can the decision of this court in HKSAR v. Yau Wai Hang assist the applicant. The reduction of the three year starting point in that case to one of two years in paragraph 22 of that judgment was expressly stated to be in the context of that case.

24. For the above reasons, the application for leave to appeal against sentence is refused.