HKSAR v. YAU WAI HANG

CACC 80/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 80 OF 2001

(ON APPEAL FROM DCCC 74 OF 2001)

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J U D G M E N T

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

The charges

1. On 26 February 2001, the Applicant, aged 21, pleaded guilty in the District Court before Judge Poon to a charge of possessing 1.64 grammes of a solid containing ketamine hydrochloride, a poison included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138. This offence (charge 1) took place on 10 December 2000 in discotheque premises in Wanchai Road. The Applicant also admitted two charges of trafficking in dangerous drugs (charges 2 and 3) which were committed on 16 and 22 December 2000 respectively. Charge 2 occurred at a discotheque in Gloucester Road and involved two tablets containing 95 milligrammes of methamphetamine (ice) and 53 milligrammes of ketamine. Charge 3, which was committed at a restaurant in Jordan Road, involved 200 tablets containing 6.15 grammes of ketamine and 38.97 grammes of 3, 4- methylenedioxymethamphetamine (MDMA), colloquially better known as 'ecstacy'.

Sentence

2. The judge imposed sentences of sixteen, twenty-four and twenty months respectively, ordering that fourteen months of the sentence on charge 2 and ten months of the sentence on charge 3 should be served consecutively. Overall, therefore, the sentence imposed amounted to forty months' imprisonment.

The facts

3. The offences were discovered as the result of undercover police operations conducted by PW1 and PW2 on each of the days referred to in the charges.

4. On the first charge, PW1 and PW2 were acting as customers when, at around 1.20 a.m., the Applicant approached PW1 and introduced himself as "Jimmy". They had a chat and they danced for a while. The Applicant asked PW1 if she and her friends wanted something to play with. PW1 inquired what he meant by this. The Applicant told her that he had some "K Chai" and that it would cost $100 per packet. The Applicant said he could sell four packets to her and she agreed to buy them. A moment later, the Applicant came back and handed over the four packets of what was suspected to be ketamine to PW1 who then paid the Applicant $400.

5. The suspected drugs were sent to the Government Laboratory where they were examined on 11 December 2000. They were confirmed to be the poison referred to in the first charge (ketamine hydrochloride) which on the date of that charge was still classified as a Part I poison.

6. Turning to the second charge, a similar operation was conducted on 16 December 2000. At around 1.15 a.m., PW1 met the Applicant at a discotheque, this time in Gloucester Road. Almost an hour later, the Applicant asked if PW1 and her friends wanted some "candies". She asked the Applicant what these were and he told her "Fing Tau" and that they cost $100 per tablet. The Applicant took out two orange tablets of what were then suspected to be ecstacy from his pocket and handed them over to PW1. PW1 paid $200 to the Applicant.

7. When these tablets were examined at the laboratory of the Government Chemist, they were found to contain 95 milligrammes of methamphetamine (ice) and 53 milligrammes of ketamine which was by now (i.e. since 15 December 2000) controlled under the First Schedule, Part I, of the Dangerous Drugs Ordinance, Cap. 134.

8. As to the third charge, at around 12.30 a.m. on 20 December 2000, the Applicant called PW1 by telephone. During their conversation, PW1 told the Applicant that she and some of her friends would be going to a rave party during the Christmas holidays. The Applicant asked if PW1 wanted any "candies". He claimed that he knew where to buy them at a cheaper price, and that PW1 could sell them at the rave party. PW1 then asked the Applicant what the candies were and he informed her that these were "Fing Tau". PW1 told the Applicant that she would discuss it first with her friends before deciding whether to buy them.

9. At around 3.10 a.m. on 20 December 2000, the Applicant called PW1 again. PW1 told the Applicant that having discussed with her friends, they had decided to accept his offer. The Applicant then offered to sell "Fing Tau" to them at $80 each and said that if they sold them at $100 each, they would earn $20 a tablet. The Applicant also advised PW1 to order 200 tablets. PW1 then agreed to order 200 tablets at the price which was being asked. He asked her to bring with her $20,000 to the Golden Harvest Restaurant on the first floor of a building in Jordan Road in Yaumatei. In other words, PW1 was being asked to pay the full price for each tablet before she could earn her commission of $20 for each ecstacy tablet she was able to sell. The arrangement was that they would meet on 22 December 2000 for the transaction.

10. At around 8.00 p.m. on 22 December 2000, PW1 met the Applicant at the appointed place. PW1 was given two cigarette boxes which, when she opened them, revealed a large number of orange tablets. PW1 put the boxes into her handbag. After a short while, PW2 came to the meeting place. He was asked if he had brought the money. PW2 said that he had. The Applicant then asked PW1 to take out the two cigarette boxes to show PW2 the tablets. It was then that PW2 paid $20,000 in marked money to the Applicant. The Applicant then told PW1 and PW2 that he had to go downstairs to give some money to his friend. The Applicant asked PW1 and PW2 to wait for a while and he then left.

11. At around 8.40 p.m. on that same day, the Applicant came back into the restaurant where he was arrested by police officers who had been keeping watch for him. The Applicant still had in his pockets $7,000 in marked notes. PW1 then identified the Applicant as the one who had sold the drugs to her on the three separate occasions that she had received drugs from the Applicant.

12. The Government Chemist found the 200 tablets contained a total of 6.15 grammes of ketamine and 38.97 grammes of MDMA or ecstacy.

13. The Applicant admitted all the offences when he was later interviewed.

Sentencing remarks

14. The judge took into account the fact that the Applicant had a number of previous convictions, two of which related to drugs and the possession of a poison. She particularly noted that the Applicant had committed the first of the offences just after his release from the Drug Addiction Treatment Centre (DATC) in December 2000. She then went on to say that she considered the Applicant, as a trafficker in drugs, to be an unsuitable candidate for a further period of detention at DATC.

15. On the first charge, the judge noted that the maximum sentence for the possession of a Part I poison was a fine of $100,000 and two years' imprisonment. She stated that the circumstances amounted to trafficking in ketamine and, accordingly, in the absence of any "guidelines", she adopted a two-year starting point.

16. As to the second and third charges, the judge referred to the guideline tariffs in R v Ching Kwok-hung [1991] 2 HKLR 125 and HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46 and [1998] 2 HKC 371 for ice and ecstacy respectively. On the second charge, the judge adopted a three-year starting point and on the third charge she took a starting point of two and a half years. She then deducted a third from each of the starting points to arrive at the sentences she imposed. She stated, however, with regard to totality, that for the three offences, after trial, a five-year sentence would have been appropriate. It was in this way that she arrived at an overall sentence of three years and four months' imprisonment after giving the usual discount for timely pleas of guilty.

Grounds of appeal

17. Mr Kenneth C.W. Chik, on the Applicant's behalf, complained that the sentences, individually in the example of charge 1 and cumulatively in respect of their overall effect, were manifestly excessive. In particular, he submitted that the judge had erred in taking the maximum as her starting point for charge 1 when this was not the worst possible offence of its type, and he criticised the judge also for her failure to take a global view of the offences "which were inter-connected throughout". As to the second limb of his submissions, he was inviting the court to consider that concurrent sentences, at least to a greater extent than were imposed by the judge, would have been appropriate.

Respondent's reply

18. Miss Lily Ho, on the Respondent's behalf, argued that the real issue to be determined by this court was not whether the sentence on charge 1 could properly be described as manifestly excessive so much as whether the totality of the sentences achieved a just result at the end of the day. She particularly pointed to the fact that it was the repeated approaches of the Applicant which were behind these offences when he was pressing to sell his drugs, coupled with the proximity in time between the Applicant's release from DATC and the commission of the offences. She made the point that these were on any view serious offences.

19. We are grateful to counsel on both sides in this application for their very helpful submissions.

Criticism of judge's approach

20. In the light of all of the arguments we have heard, we do not consider that the starting point of two years' imprisonment was justified on charge 1. It is a basic premise that for an offence to attract the maximum sentence laid down by law, the criminal conduct which is involved should fall into the top end of the range for this form of disposal even to be considered as an option. Plainly, in our view, the offence in this charge fell outside such a range and accordingly, as a matter of principle, we consider that the judge erred in her approach to this sentence. In our judgment, a starting point of fifteen months would have been appropriate for the first charge.

21. We were not in the end persuaded by Mr Chik's other argument that all or most of the sentences should have been ordered to run concurrently by simple virtue of their having been inter-connected. The Applicant's persuasive and eventually aggressive sales technique, involving repeated attempts to supply these illicit items, was plainly deserving of a higher sentence than he would have received for a single offence.

22. The two most serious offences were, as the judge properly recognised, the second and third charges. As to charge 2, under the guidelines in Attorney General v Ching Kwok-hung (above), up to 12 grammes of ice is punishable by a sentence of between three to seven years and between 10 and 70 grammes the range is from seven to ten years' imprisonment. The amount of ice in charge 2 was well under a gramme mixed with 53 milligrammes of ketamine. In the context of this case, we consider the three-year starting point taken by the judge to have been too high, and that a starting point of two years' imprisonment would have been more appropriate.

23. Turning to the ecstacy, represented by the 200 tablets supplied in charge 3, containing almost 39 grammes of MDMA and about 6 grammes of ketamine, the judge had very properly taken into account the guideline tariffs set out in HKSAR v Lee Tak-kwan (above). These, amongst others things, provide that for up to 25 grammes of MDMA the sentence is entirely within the discretion of the sentencer, and that for 25 grammes to 400 grammes the sentence should be in the range of between two and four years' imprisonment. The starting point of two and a half years' imprisonment selected by the judge was not one which we consider to have been inappropriate in the circumstances of this case.

24. Giving a full one-third discount as credit for the pleas of guilty, the starting points we have selected would be reduced thereby to ten months (charge 1), sixteen months (charge 2) and twenty months (charge 3). In totality, this would amount to a sentence of forty-six months. There is, in principle, no particular reason in the present circumstances why the sentences should not be ordered to be served at least in part consecutively. Each offence was quite distinct.

25. The judge's original starting points came to ninety months, which she adjusted to sixty months to take into account totality before giving the one-third discount. On the original starting points adopted by this court, reduced by a third to take into account the discount for the Applicant's pleas, we have arrived at forty-six months before any adjustment for totality. It is plain, therefore, that we must make some downward adjustment to reflect in particular, the principle to which we referred earlier when saying that the maximum sentence on charge 1 should not have been taken as the starting point. This is despite the obvious gravity of these offences set against the Applicant's undoubted previous bad record, albeit there is no previous offence of trafficking in dangerous drugs.

Conclusion

26. Accordingly, we shall grant leave. Treating the hearing as the appeal, we propose to deal firstly with the third and plainly, in our view, the most serious offence. This involved the trafficking in 200 tablets of ecstacy. We do not interfere with the twenty-month sentence imposed by the judge. On charge 2, the next most serious offence, trafficking in a very small quantity of ice, the sentence will be sixteen months' imprisonment with ten months ordered to run consecutively to the sentence on charge 3. Finally, the sentence on charge 1 will be ten months' imprisonment with six months only running consecutively to the other sentences, making thirty-six months in all. To this extent, the appeal succeeds.