HKSAR v. SU HUI FENG

HCMA643/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.643 OF 2005

(ON APPEAL FROM NKCC 6098 OF 2004)

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J U D G M E N T

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1. The appellant was convicted after trial of Charge 1, ‘Trafficking in a Dangerous Drug’ and Charge 2, ‘Possession of Part I Poison’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 and sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap.138.  She was sentenced to the concurrent terms of three years’ imprisonment and one month’s imprisonment respectively.  Having abandoned her appeal against conviction, she now appeals against the sentence in Charge 1.

2. This is how the magistrate summarized the case in his Statement of Findings :

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3.

The defendant was the registered tenant of Flat 3, 1/Flr, Hung Fai Building, Tung Choi Street, Mongkok (‘the premises’).  She worked as a licensed hawker nearby.  Police raided the premises and found a substantial amount of various dangerous drugs and poison, packaged and distributed throughout the premises.  The defendant was present throughout the raid and was shown the seizures.  Under caution she admitted possession of the drugs and poison for her own use and stated that she had the only key to the premises. …”

3. For the nature and quantity of the drugs and poison involved, one needs only look at the particulars of the charges :

“Female SU Hui-feng
(1)	SU Hui-feng, you are charged that on 16th day of January, 2004 Flat 3, 1/Floor, Hung Fai Building, 2Q-2Z Tung Choi Street, Mongkok, Kowloon, in Hong Kong, you unlawfully trafficked in a dangerous drug, namely 8 plastic bags containing 96.79 grammes of a powder containing 47.11 grammes of ketamine, 111 paper packets containing 36.43 grammes of a powder containing 16.63 grammes of ketamine, 10 foilpacks containing 34 tablets containing 0.15 grammes of nimetazepam, 8.89 grammes of cannabis, 1 plastic bag containing 6.64 grammes of cannabis, 10 hand-rolled cigarettes containing 1.97 grammes of cannabis, 5 foilpacks containing 149 tablets containing 0.14 grammes of estazolam and 61 tablets containing 0.14 grammes of methamphetamine, 2.32 grammes of 3, 4-methylenedioxyamphetamine and 2.44 grammes of 3, 4-methylenedioxyamphetamine (commonly known as ecstasy).
(2)	SU Hui-feng, you are charged that on the 16th day of January, 2004 Flat 3, 1/Floor, Hung Fai Building, 2Q-2Z Tung Choi Street, Mongkok, Kowloon, in Hong Kong, you had in your possession a poison included in Part I of the Poisons List, namely, 17.35 grammes of a powder containing amantadine, a listed Part I Poison, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance.”

4. As regard the sentences imposed, the magistrate explained that :

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22.

This 46 year-old defendant was a person of previously good character.  She is a licensed hawker as is her husband.  She has two adult daughters.  Having considered the facts as I had found them there was only one inference that could be drawn and that was that the defendant was a distributor of DD.  A deterrent sentence was right.  The maximum sentence in this court is three years in prison on Charge 1.  The circumstances of this case and the quantum puts it at the top end of this jurisdiction.  I sentenced her to three years in prison on the Charge 1 and to one month in prison concurrent on Charge 2, for a total of three years.”

5. Disagreeing, counsel for the appellant complains that the sentence of three years’ imprisonment is manifestly excessive and/or wrong in principle.

6. He submits that :

“	1.	The Learned Magistrate failed to adopt the lower end of the range/band for Ketamine/Ecstacy in light of the fact that the Appellant, at the time of the offence, had a clear record and therefore no previous convictions related to dangerous drugs.  (The Queen AND Lau Tak-ming and Others [1990] 2 HKLR 370.  Also, Cross & Cheung : Sentencing in Hong Kong 4th Editionp page 69).
	2.	Further, the Learned Magistrate in his Reasons For Sentence (page 21 Appeal Bundle paragraph 22) states ‘The circumstances of this case and the quantum puts it at the top end of this jurisdiction.’  With respect to the Learned Magistrate the quantum of the drugs involved puts it at the lower end of the category.
	3.	The charge sheet (page 6A.B) shows that the largest quantity of drugs was the Ketamine which totaled 63.74 grammes.  Other drugs included cannabis (17.5 grammes) and ecstacy (4.76 grammes.)
	4.	The guidelines for Ketamine (HKSAR v. Leung Chun Fung) [2003] 2 HKLRD 282) as laid down by the Court of Appeal are the same as those for Ecstacy.  HKSAR v. Lee Tak-kwan [1998] 2 HKLRD 46 puts this Appellant in the second band, namely ‘Over 25 to 400gms – 2 to 4 years.’
	5.	Quite clearly the Appellant’s quantity fell into the lower end of the band.  It would appear that the Learned Magistrate sentenced the Appellant on the basis that she trafficked in about 200 grammes of the said drug.”

7. Frankly, I do not see how the appellant’s lack of a previous record could amount to an effective mitigating factor in this case.  Nor do I see any part of the sentence wrong in principle.  When the magistrate made the remark about being “top end of this jurisdiction”, I also understand him to mean that the variety hence comprehensiveness of the drugs being trafficked to the possible group or groups of clients in the case is one that is not often seen in the magistracy.

8. However, given that ketamine and ecstasy are the major component of the cache of drugs involved in this case, and that they come to just 68.5 grammes in question, I do take the view that the 3-year term is excessive.

9. I say this against the fact that under the relevant guidelines, 400 grammes of ketamine and/or ecstasy would only attract a sentence of four years, while not suggesting for a moment that a strict mathematical approach is to be adopted.

10. In all the circumstances, I think a term of 2½ years would be right for Charge 1, still to be served concurrently with Charge 2.  The appeal is allowed to that extent.