HKSAR v. CHAN YIU HONG

CACC 592/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 592 OF 2002

(ON APPEAL FROM DCCC 424 OF 2002)

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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):

Introduction

1. On 5 November 2002, the Applicant was sentenced in the District Court to a total of three years' imprisonment by Deputy Judge C.P. Pang in respect of four charges of trafficking in dangerous drugs (charges 1, 4, 9 and 11) and one charge, contrary to section 63 of the Police Force Ordinance, Cap. 232 (charge 14) of misleading a police officer by giving false information. He had pleaded guilty to all these charges on the previous day. At the time when the Applicant received this sentence, he was already serving a seven-year sentence for robbery imposed in the Court of First Instance on 18 July 2002. The sentence with which we are presently concerned was ordered to run consecutively.

2. The Applicant now seeks to renew his application for leave to appeal against sentence, the leave of the single judge having been refused on 11 June 2003. One other (D3) was involved to an extent in the events covered by the fourth charge. He has not sought leave to appeal.

The facts

3. The offences were allegedly committed between 25 November 2001 and 10 February 2002. On the facts admitted by the Applicant, he had met two undercover police officers during an operation involving two discotheques where activities involving dangerous drugs were being investigated. During that operation, the Applicant made a number of approaches to either PC 52875 (PW1) or PC 54087 (PW2) or to both of them, at a time when, of course, he was unaware that they were police officers. On each occasion, he sold them tablets, sometimes containing a mix of as many as three different kinds of drugs, and each time it was the Applicant who took the initiative to sell the drugs to the undercover police officers.

4. Briefly, taking each of the Applicant's four offences of trafficking in turn, on 25 November 2001, the Applicant and a friend, having met PW1 and PW2 at the Indulge Disco, PW2 was asked whether he wanted any 'Fing Tau'. The Applicant then sold PW2 a tablet containing 0.03 of a gramme of methamphetamine for $100.

5. Next, on 16 December 2001, again at the Indulge Disco, the Applicant asked whether PW2 wanted "any stuff". When PW2 said that he would, the Applicant took PW2 to the emergency exit. D3 arrived at the scene shortly afterwards. The Applicant, with D3's help, then sold two tablets to PW2 for $200. These contained a mixture of 58 mgs of methamphetamine, 8 mgs of ketamine and 63 mgs of diazepam.

6. The third offence occurred at the Fai Wong Sing Disco during the early morning of 19 January 2002. The Applicant asked PW1 for a few hundred dollars and PW1 gave him $300. They then, at 5.22 am, went to the Home Disco where the Applicant stated that he had spent PW1's three hundred dollars. He then supplied PW1 with three tablets of what was said to be 'Fing Tau'. The tablets were found by the Government Chemist to contain 0.18 of a gramme of diazepam, 0.04 of a gramme of methamphetamine and 0.03 of a gramme of ketamine.

7. The last trafficking offence occurred when the Applicant met PW1 and PW2 at the Indulge Disco on 3 February 2002. The Applicant asked PW2 if he wanted to have any 'Fing Tau'. He then took PW2 to a man who was standing at the emergency exit. The man supplied three tablets to PW2 for $300. The tablets were later found to contain a total of 0.43 of a gramme of 3,4-methylenedioxy-methamphetamine (more usually referred to as MDMA or ecstasy).

8. When the Applicant was eventually arrested, he used his brother's birth certificate as proof of his identity.

Mitigation

9. The Applicant's mitigation included a suggestion that he was not a drug peddler in the ordinary sense. It was said that he only sold the drugs at their cost price in order to please people who he had come to think of as his friends.

10. The judge, not surprisingly in the light of all the facts, rejected this line of mitigation in its entirety.

The application

11. It was argued by Mr Philip Wong, on the Applicant's behalf, that the sentence totalling three years' imprisonment was manifestly excessive because "the factual circumstances under which the Applicant sold or arranged to sell to PW1 or PW2 the dangerous drugs of various kinds and quantities indicated that the Applicant was offering tablets of ecstasy, or might have been, under the belief that he was selling or arranging to sell tablets of ecstasy...." It was contended that as the sentencing guidelines in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, which are applicable to cases involving trafficking in methamphetamine hydrochloride ('ice'), were relied on by the judge, there had been an obvious failure to take into account that the Applicant might have been operating under the belief that he was trafficking in ecstasy for which the sentences imposed under the guidelines in HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 372 are generally less severe.

12. In advancing this submission, Mr Philip Wong relied on HKSAR v Li Chi-hung & Ors CACC 18/2002 (unreported). However, the facts in that case, in which we note that Mr Wong also appeared and where again this court was concerned with an applicant's belief as to the type of drugs he was supplying, were entirely different.

13. The judge's reasons for sentence comprehensively dealt with all matters of any relevance to mitigation and with a number of decisions in the courts which he considered gave some assistance in respect of the four different types of drugs the Applicant had supplied to the undercover officers.

14. The judge went on to say:

"Although the drugs in each charge were of small quantity, I must not ignore the fact that D1's activity was a persistent one. On each occasion he took the initiative to ask the undercover agent if he wanted the drugs ..... I have considered all the circumstances and the mitigation made on behalf of the 1st defendant." (Appeal bundle p. 17)

15. The judge took a starting point of three years' imprisonment on the four trafficking charges, and on charge 14 he took a starting point of three months' imprisonment. He then reduced each of these sentences by a third to reflect the pleas of guilty and, applying the principle of totality, he said that he would "cap the total at three years". Accordingly, one year on charge 1 was ordered to run consecutively to all the other sentences which were made concurrent to each other.

16. It is plain from the matters we have set out that the judge did not take into account the fact that the Applicant may, as Mr Philip Wong suggested, have thought he was trafficking in ecstasy alone rather than in all the various mixtures of dangerous drugs which he was in fact supplying. Indeed, there was every reason why the judge should not have done so.

17. Firstly, it had formed no part of the mitigation that the Applicant had mistakenly formed the impression he was supplying only ecstasy rather than methamphetamine and other drugs or that he should, on this account, receive a lower sentence than he might otherwise expect for knowingly trafficking in methamphetamine.

18. Secondly, despite Mr Wong's optimistic submission that the Summary of Facts "clearly established" that the Applicant believed the drugs he supplied were ecstasy, there is, in our opinion, no such conclusion to be drawn. On the fourth charge, the "stuff" he supplied turned out to be a mixture of three different types of dangerous drugs, one of which was methamphetamine. None of this mixture was ecstasy. On the first, ninth and eleventh charges, it is true that the Applicant had offered to supply 'Fing Tau'. Only in the eleventh charge did a small quantity of ecstasy feature in tablets supplied. In this context, Mr Wong correctly suggested that 'Fing Tau' may generally be understood by those in the community to refer to the drug known as ecstasy. However, it is widely known amongst dealers that drugs are often mixed together, whereas buyers may be induced by the use of the term 'Fing Tau' to believe that they are buying ecstasy, unaware that they are purchasing a cocktail of drugs which may or may not include ecstasy.

19. Thirdly, there was apparently no statement given by the Applicant that he believed he was selling only ecstasy or any explanation from him as to why, if this is what he thought he was selling, the drugs more often than not turned out to contain no ecstasy at all. Perhaps, even more significantly, it is to be noted that when the Applicant came to draft his homemade grounds of appeal shortly after sentence was imposed, he again raised no complaint that he had been sentenced on the basis of supplying a different drug to ecstasy, when ecstasy is now alleged by Mr Philip Wong on his behalf to be all that he believed he had been supplying.

20. Mr Gavin Shiu, on behalf of the Respondent, to whom we are very grateful for the amount of work that he has put into the preparation of his response, added a fourth argument in support of his contention that there was every reason to doubt this newly advanced line in mitigation which had succeeded in HKSAR v Li Chi-hung & Ors (above) on easily distinguished facts, and which had not even been hinted at before Mr Philip Wong, in the present case, settled grounds of appeal as recently as last month. Mr Shiu pointed out that the Applicant, by his plea of guilty to the charge of misleading a police officer by giving false information, is not averse to using an untrue account where he thinks it may help him to do so.

21. We are left in no doubt that the point now raised on the Applicant's behalf is worthless. As such, the judge was fully entitled to have adopted the guidelines in Ching Kwok-hung (above). It was not suggested by either party to this appeal that sentences imposed for trafficking in methamphetamine should be any different to sentences imposed for methamphetamine hydrochloride ('ice').

22. These guidelines indicate that the sentence imposed on the Applicant was not open to criticism. Several factors had to be considered. Not least amongst these, was the fact that the Applicant was a dealer in drugs at premises where the young could be expected to congregate. Some of them would almost certainly have had little, if any, previous experience in drugs. Bearing in mind also that these were persistent trafficking offences which the Applicant had initiated, spread over approximately ten weeks, the sentence, in its totality, was obviously appropriate.

23. In any event, as Mr Shiu correctly pointed out, even if the Applicant had genuinely thought he was dealing solely in ecstasy which, as we have indicated, was clearly not the case, it would not necessarily have followed that his sentence would have been strictly in accordance with the sentencing guidelines for ecstasy set out in HKSAR v Lee Tak-kwan (above). This is because whatever he may have thought he was supplying, he was in fact supplying methamphetamine amongst other things (see: R v Gena Ngiam [2002] 1 Cr App R (S) 150).

Conclusion

24. This application is dismissed.