CHANG CHEN LIU-SA v. ATTORNEY GENERAL

IN THE COURT OF APPEAL

1994, No. 75
(criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant was convicted after trial before Deputy Judge Daniell and a jury on one count of trafficking in a dangerous drug and was sentenced to six-and-a-half years' imprisonment. He now applies for leave to appeal against that conviction. There is also an application by the Attorney General for review of the sentence on the grounds that it was manifestly inadequate and wrong in principle. Leave was granted by the Chief Justice to apply to this court out of time for review of that sentence.

2. As to the application for leave to appeal against conviction, the evidence on which the jury convicted the applicant was that on the 8 March 1993, after having arrived at Kai Tak Airport, he was intercepted by Customs Officers as he retrieved his suitcase at the baggage reclamation hall. Inside the suitcase were cans containing 713.11 grammes of a mixture consisting of 595.37 grammes of cocaine hydrochloride and 491ml of a solution of which 15.36 grammes were cocaine hydrochloride.

3. The applicant complains that his evidence was not believed when he testified that he did not know that the cans which he had brought into Hong Kong contained dangerous drugs. The cans were sealed. He said that he believed that one can contained olive oil and that the others contained milk powder. He also complains that the judge "just looked at the evidence superficially and did not go into the actual facts".

4. We find no merit in these complaints. It was for the jury to decide whether the applicant's evidence might reasonably be true. Plainly, they disbelieved him. The judge fairly summarised the applicant's evidence and accurately directed the jury on the relevant law. The application for leave to appeal against conviction is therefore refused.

5. We turn now to the Attorney General's application. In passing sentence the deputy judge appears to have accepted the defence counsel's submission that the guidelines laid down in CHAN Chi-ming v. R. [1979] HKLR 491 were applicable.

6. Mr Saw who appeared on behalf of the Attorney General in this court submitted that the deputy judge was plainly in error in accepting that submission and passing a sentence of six and a half years' imprisonment. He referred us to the Attorney General v. Leung Pang-chiu [1986] HKLR 608 where this court stated that cocaine is a hard drug, and that the sentencing guidelines for offences involving its possession should be similar to those in Chan Chi-ming. The Chan Chi-ming guidelines were completely revised in the R. v. Lau Tak- ming [1990]2 HKLR 370, and in the Attorney General v. Pedro Nel Rojas. A.R. No. 15 of 1993 (unreported) this court held that the Lau Tak-ming guidelines were applicable to cocaine notwithstanding the fact that Leung Pang-chiu had not been expressly reconsidered in the light of the revision of the Chan Chi- ming guidelines in Lau Tak-ming.

7. Mr De Boinville who appears for the respondent in this application concedes that the deputy judge was in error in applying the Chan Chi-ming guidelines. He submitted however that "it is unclear from Leung Pang-chiu whether cocaine hydrochloride is itself the narcotic, or merely the equivalent of salts of esters of morphine".

8. It became clear in the course of submissions that there was some confusion in Mr De Boinville's use of the expression "salts of esters of morphine".

9. Such confusion seems to have arisen because of the use of the expression "SEM" inLau Tak-ming. As is apparent from page 383 of the report, "SEM" was used for convenience to refer to a mixture of a purity between that of No. 3 and No. 4 heroin, not as an acronym for salts of esters of morphine.

10. The guidelines themselves, however, refer to the actual quantity of salts of esters of morphine in the mixture: that is to say, the active ingredient in the mixture. In Pedro Nel Rojas this court equated for sentencing purposes cocaine hydrochloride with salts of esters of morphine. A given amount of cocaine hydrochloride attracts the same sentence as the same amount of salts of esters of morphine.

11. Mr De Boinville urged us to take the view that we should not adhere to the Lau Tak-ming guidelines for the purpose of sentencing in cases concerning cocaine hydrochloride as cocaine hydrochloride is simply one of the derivatives of cocaine; if even more dangerous derivatives appeared in the market the court would have little headroom left for sentencing purposes if it adhered strictly to those guidelines. We cannot accept this argument; it is inconsistent with what was said in Leung Pang-chiu. Having equated cocaine hydrochloride as being on a par with salts of esters of morphine, it must follow that where the guidelines for the latter were revised upwards in Lau Tak-ming the tariffs for trafficking in cocaine hydrochloride must likewise be increased. In Pedro Nel Rojas this court confirmed this approach.

12. In our view the proper sentence in this case was one of 20 years' imprisonment. However, since the outcome of this Review is that the sentence is being very greatly increased, we consider that there should be a discount from the otherwise appropriate sentence. We grant the Attorney General's application and substitute for the sentence imposed by the deputy judge one of 16 years' imprisonment.