HKSAR v. NG SIU FUNG

CACC 46/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 2009

(ON APPEAL FROM HCCC 171 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.  The applicant, Ng Siu-fung, appeared before Deputy High Court Judge Geiser sitting with a jury on an indictment consisting of a single charge of trafficking in 1,980.20 grammes of a powder containing 1,596.73 grammes of ketamine and 990.99 grammes of cannabis in herbal form.

2.  The applicant pleaded not guilty, but was convicted as charged and sentenced to 12 years’ imprisonment.

3.  The applicant sought leave to appeal against both conviction and sentence, but had since abandoned his application relating to conviction. We are therefore only concerned with his application relating to sentence.

The Facts

4.  On 3 April 2008, the applicant, having been intercepted by police officers outside a massage parlour at No 57 Ha Heung Road, To Kwa Wan, was taken back into the massage parlour for a search. The applicant told the officers that there were “K Chai” and a bag of “cannabis buds” in a wardrobe.

5.  With keys provided by the applicant, a drawer of a wardrobe was opened and the officers found a red bag containing ketamine. The applicant then opened the doors of the wardrobe where a black bag of cannabis buds was found. The quantities of the dangerous drugs were set out in the charge. The officers also seized paraphernalia such as electronic scales, a sealing machine, plastic bags and a paper cutter. The applicant told the officers that he intended to buy “K Chai” and cannabis buds at a low price and sell them for money as he was short of money.

6.  The applicant was 37 years old, married with children. He had previous convictions of driving whilst disqualified, using a motor vehicle without insurance against third party risks, common assault and assault occasioning actual bodily harm. However, he had never been imprisoned.

7.  In a letter to the court, the applicant says that he regrets what he did and has reformed himself. He also informs the court that he had, since his imprisonment, obtained a certificate of completion in the study of History of Philosophy issued by the Chinese University of Hong Kong.

The Judge’s Approach

8.  The judge accepted that as the offence was committed on 3 April 2008, before the new guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 came into operation, the guidelines in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, as adopted for ketamine trafficking in HKSAR v Leung Chun-fung [2003] 2 HKLRD 282, applied.

9.  Under the Lee Tak Kwan guidelines, trafficking in over 800 grammes of ketamine attracted a starting point of 8 years and upwards. The judge pointed out that the case involved 1,596.73 grammes of ketamine and 990.99 grammes of herbal cannabis, and that there was no mitigation.

10.  The judge took the view that if the applicant were to be sentenced just for the ketamine, the sentence would be 11½ years, and that the cannabis, under the guidelines in AG v Chan Chi Man [1987] HKLR 221, would “earn an extra 6 months’ imprisonment”, making a total sentence of 12 years’ imprisonment.

Grounds of Appeal

11.  Mr HY Wong, on behalf of the applicant, argues that 11½ years’ imprisonment for trafficking in 1,596.73 grammes of ketamine, when comparing with sentences imposed on other defendants for trafficking in substantially larger quantities than 1,600 grammes of ketamine, is manifestly excessive. Mr Wong refers to HKSAR v Tsang Wai Kei (unreported, CACC 452/2002) where a 12-year starting point was adopted for trafficking in 4.2 kilogrammes of ketamine.

12.  Mr Wong suggests that the judge should not have adopted a starting point of 6 months for the additional 990.99 grammes of herbal cannabis as the guideline referred to by the judge – AG v Chan Chi Man [1987] HKLR 221 had been revised in AG v Tuen Shui Ming [1995] 2 HKCLR 129, and in any event, those guidelines only applies to trafficking in cannabis resin, and not herbal cannabis, which has a much lower concentration of “Tetrahydrocannabinol” than cannabis resin.

13.  Mr Wong argues that the total sentence imposed on the applicant is manifestly excessive.

Discussion

14.  The tariff, as laid down in Lee Tak Kwan (supra), is 8 years or upwards for trafficking in over 800 grammes of ketamine. Mortimer VP said at P 55 I-J:

“An arithmetic progression for trafficking in much higher quantities than 800g should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances.”

15.  Mathematical progression can cause injustice and should be avoided. However, there must be a logical and proportional connection between the quantity of drug involved and the sentence in any drug trafficking offence as the quantity of drug is still, under established principles, the most single important factor on sentence.

16.  It is perhaps unfortunate that the tariff in Lee Tak Kwan (supra) stops at 800 grammes and there are few cases on sentences involving 1-2 kilogrames of ketamine. Of course, shortly after the present offence was committed, the tariff in Lee Tak Kwan had been substantially revised upwards (see Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1). The starting point for trafficking in over 1,000 grammes of ketamine is now 14 years upwards.

17.  Mr Wong relies heavily on Tsang Wai-kei (sura), but it is fair to point out that it was an appeal against sentence by the defendant mainly on the ground that he was suffering from serious illness and disability. The Court of Appeal, in dismissing the appeal, commented that the 12-starting point for trafficking in 4.2 kilogrammes of ketamine was a lenient sentence.

18.  In HKSAR v Lau Dick Yung (unreported CACC 327/2008), the Court of Appeal approved a 12-year starting point for trafficking in just over 1,600 grammes of ketamine.

19.  In HKSAR v Yeung Ka Chun, Gary (unreported CACC 500/2006), the Court of Appeal reduced a 15-year starting point to 12 years for trafficking in 1,861 grammes of ketamine and 44 grammes of ecstasy.

20.  However, these cases involved the importation of drugs into Hong Kong, which was considered a significant aggravating factor. We just wish to highlight the following sentences from the judgment in Lau Dick Yung (supra) at page 3:

“In the first of these, HKSAR v Tsang Wai-kei, CACC 452/2002, where the trafficking involved 4.2 kilogrammes of ketamine, there was no element of importation involved….

The other case…HKSAR v Sankar Babu Raajeshwari, CACC 238/2006, involving 4.19 kilogrammes of ketamine, was an importation case.”

21.  In HKSAR v Chui Chi Wai & Another (No 2) [2000] 1 HKLRD 704, the two defendants pleaded guilty to trafficking in 18,792 tablets containing 2,102 grammes of ecstasy, and 55.77 grammes of tablet fragments containing 21.44 grammes of ecstasy. The 2^nd defendant further pleaded guilty to another charge of trafficking in 19,892 tablets containing 2,268 grammes of ecstasy, and 88.77 grammes of tablet fragments containing 34.12 grammes of ecstasy. The Court of Appeal considered a 12-year starting point for the 1^st defendant and a 16-year starting point for the 2^nd applicant excessive. The Court of Appeal took the view that a 10- year starting point for each of the two charges adequate. Wong JA, in giving judgment of the court, said at P 708:

“This case does not involve importation or manufacture and there are no other aggravating features for which the applicants were responsible. From what D2 told the police during the interview, it seems that both he and D1 were just couriers, passing the drug from one person to another. In the circumstances of the case and having regard to what was said in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, [1998] 2 HKC 371, we consider that the starting points of 12 years and 16 years respectively are inordinately high. In our view, the appropriate starting point for each count should be 10 years and having regard to totality the effective starting point for D2 would be higher.”

22.  We have considered the facts of the case and the applicant’s background. We have also reviewed cases on ketamine trafficking cases. We are persuaded that for trafficking in about 1,600 grammes of ketamine and in the absence of any aggravating factor, an appropriate starting point under the Lee Tak Kwan guidelinesshould be 10 years’ imprisonment. The judge was entitled to add 6 months on account of the 990.99 grammes of cannabis in herbal form.

23.  We are of the view that a total starting point of 10½ years’ imprisonment is adequate for the single charge of drug trafficking that the applicant was convicted of.

24.  We therefore grant leave to the applicant to appeal against sentence. Treating his application as the appeal proper, we allow his appeal and reduce his sentence from 12 years to 10½ years.

Mr W T Chiu, SPP of the Department of Justice, for the Respondent.

Mr H Y Wong instructed by Messrs Wong & Co assigned by the Director of Legal Aid for the Applicant.