HKSAR v. LUI WAI KAM

CACC 400/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 400 OF 2009

(ON APPEAL FROM HCCC NO. 251 OF 2009)

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JUDGMENT

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Hon Tang Ag CJHC:

1.  The applicant pleaded guilty to 5 counts of trafficking in dangerous drugs, namely, methamphetamine hydrochloride (“ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The offences were committed between January and March 2008, and the details can be found in the agreed facts which are reproduced below:

“Count 1 (against D2)

2. On 21 January 2008, PW1 was given the phone number of D1. PW1 called D1 and asked him about the price of ICE. D1 said to PW1 on the phone that the discounted unit price was HK$380 and he had to buy in bulk of at least 5 packets in one go. He also told PW1 that he could buy at $350 for further purchases. D1 also directed PW1 to call D2 the next day in order to collect the ICE.

3. On 22 January 2008, PW1 met D2 at the staircase of 2/F to 3/F, Hollywood Shopping Centre, 22 Sai Yeung Choi Street, Mongkok, Kowloon. PW1 handed over HK$1,900 marked money to D2 who gave him 5 packets of ICE.

4. On the same day, PW1 returned to the safe house where he handed the 5 packets of ICE to PW2 (D/Sgt 22656).

5. The 5 packets of ICE were sent to the Government Chemist (G. C.) for examination and it was confirmed that they were 2.96 grammes of a crystalline solid containing 2.31 grammes of methamphetamine.

Count 2 (against D2 and D3)

6. On 26 January 2008, D2 called PW1 and offered to sell ICE at the unit price of HK$350. PW1 agreed to buy 10 units for HK<$3,500.

7. At around 1530 hours on 27 January 2008, D2 asked PW1 to go to his home at Room 8, Flat 14A, 3/F Wing Wah Building, 14-24, Sai Yeung Choi Street, Mongkok, Kowloon. At around 1745 hours, PW1 went to D2's home and gave him HK$3,500. D2 took the money and left the flat with PW1 staying.

8. At around 1845 hours, D2 returned and he told PW1 that there were police downstairs. At around 1930 hours, D3 arrived at D2's home and he handed over a plastic bag to D2. D2 introduced D3 to PW1 as his courier. D2 opened the plastic bag. He used a straw to pick up white powder inside and transferred the powder into 10 small packets. At 2000 hours, D2 handed over the 10 packets of ICE to PW1 who left.

9. At around 2115 hours, PW1 handed over the 10 packets of ICE to PW2.

10. The 10 packets of ICE were sent to the GC for examination and it was confirmed that they were 5.12 grammes of a crystalline solid containing 5.07 grammes of methamphetamine.

Count 3 (against D2)

11. At about 1945 hours on 5 February 2008, PW1 called D2 and asked him if there is any new stock of ICE. D2 stated that the price had gone up to HK$3,800 per 10 units. PW1 agreed to buy 10 units and D2 said he would give him the ICE later on the same evening.

12. At about 2200 hours, D2 called PW1 and asked him to deposit the money into his account first. D2 also sent a text message to PW1 informing him of his account no. at the Hang Seng Bank. D2 asked PW1 to go to his home at around 0300 hours on 6 February 2008.

13. At about 0315 hours, PW1 went to D2's home where D2 gave him 7 packets of ICE. The balance of 3 units owed would be delivered at the next transaction.

14. At around 0500 hours on 6 February 2008, PW1 returned to the safe house where he handed the seized 7 packets of drugs to PW2.

15. The 7 packets of ICE were sent to the GC for examination and it was confirmed that they were 3.45 grammes of a crystalline solid containing 3.41 grammes of methamphetamine.

Count 4 (against D2 and D3)

16. On 11 February 2008, D2 called PW1 to get more stock. D2 said that the unit price is HK$360. PW1 agreed to buy 15 units at the price of HK$5,400.

17. At 1200 hours on 12 February 2008, D2 called PW1 and told him that the 18 units of ICE (i.e. 15 units recently ordered and the 3 units of drugs previously ordered but not collected) were ready for collection.

18. At 2015 hours, PW1 went to D2's home. D2 told PW1 that he had given his stock to other customers and so he had to wait for D3 to bring in new stock.

19. At 2115 hours, D3 arrived and he handed the drugs to D2. D2 collected the HK$5,400 from PW1 and he handed over the 18 packets of drugs to PW1.

20. At 2245 hours, PW1 handed over the drugs to PW2.

21. The 18 packets of ICE were sent to the GC for examination and it was confirmed that they were 8.13 grammes of a crystalline solid containing 7.78 grammes of methamphetamine.

Count 5 (against D2)

22. At about 0100 hours on 14 March 2008, PW1 called D2 and asked if he had any stock of ICE at home. PW1 agreed to buy 15 units for HK$5,250. PW1 was told to deposit HK$l,000 into D2's Bank of China account.

23. At about 1200 hours, PW1 was given HK$5,250 by PW2 at the safe house.

24. At about 2100 hours, PW1 arrived at D2's home. Shortly afterwards, PW2 and other police officers also gained access to the premises. PW1 identified D2 and his girlfriend.

25. The police conducted a search and they found the following:-

(a) 17 packets containing 9.89 grammes of a crystalline solid containing 9.76 grammes methamphetamine hydrochloride; and

(b)     one inhaling device inserted with one glass tube connected to one plastic tube containing 0.29 grammes of methamphetamine hydrochloride.”

3.  The amount of ice involved in the counts ranged from 2.31 grammes to 10.05 grammes.  The total weight is 28.62 grammes.  The applicant was sentenced on 16 November 2009 by D Pang J to a total sentence of 9 years.

4.  The individual sentences given in relation to the counts are:

Count 1: 3½ years

Count 2: 4½ years

Count 3: 4 years

Count 4: 5½ years

Count 5: 7 years

5.  They were discounted by one-third because of the applicant’s guilty plea:

Count 1: 2 years and 4 months

Count 2: 3 years

Count 3: 2 years and 8 months

Count 4: 3 years and 8 months

Count5: 4 years and 8 months

6.  The learned judge ordered two sets of consecutive sentences to be served concurrently, namely, Counts 1 and 2 on the one hand, and Counts 3 and 4 on the other hand, giving a sub-total of 6 years and 4 months, and thereafter 2 years of the term for Count 5 to run concurrently to the sub-total of 6 years and 4 months, making a composite sentence of 9 years.

7.  Mr H Y Wong, appearing for the applicant, accepts that the sentences on the individual charges are within the tariff set out in AG v Ching Kwok-hung [1991] 2 HKLR 125. 

8.  However, he submits that given the total ice involved is only 28.62 grammes, the overall sentence of 9 years after plea is manifestly excessive and wrong in principle since it reflects a notional starting point of 13½ years which according to Ching Kwok-hung is appropriate for trafficking in 70 to 300 grammes of ice.

9.  But, it is well-established that in considering the overall sentence to be imposed on a person who has sold drugs to an undercover agent on a number of occasions “the combined weight … was only one consideration to be borne in mind.”  See per Stuart-Moore Ag CJHC in HKSAR v. Lai Yau-fat, CACC 278/2000 (unreported, 6 December 2000) at page 4.

10.  In HKSAR v. Ng Yau Kau and Anor, CACC 374 /2007 (unreported, 18 June 2008, Stuart-Moore VP and McMahon J), McMahon J in the judgment of the court said:

“10. … It is not just the totality of drugs in the defendants’ possession which goes to the overall criminality of the offence, but also the separate acts of trafficking. …”

11.  In HKSAR v. Wong Nam Ngan, CACC 372/2001 (unreported, 17 January 2002, Stuart-Moore VP and Suffiad J), Suffiad J in giving the judgment of the court, made a similar observation.  He said:

“19. … although the quantities of the various drugs in each of the charges in this case are not large, it was the applicant's persistence in the trafficking activities which made this a serious case.”

12.  In HKSAR v. Cheung Man Wo Andy, CACC 303/2000 (unreported, 20 December 2000, Stuart-Moore Ag CJHC, Mayo VP and Stock JA), the applicant had pleaded guilty to 4 counts of trafficking in 0.34 grammes of heroin.  The tariff for trafficking in heroin of up to 10 grammes was 2 to 5 years.  The court reduced the sentence to 3 years 6 months from 4½ years.  Even so, the sentence of 3½ years represented a notional starting point of 5 years and 3 months.

13.  In Leung Ka-ho, CACC 304/2007 (unreported, 4 March 2008, Yeung JA and Barnes J), the total quantity of ketamine involved was only 0.86 gramme.  The tariff for ketamine is that the sentence for trafficking of up to 25 grammes was entirely within the discretion of the judge.  For trafficking between 25 and 400 grammes, the sentence was between 2 and 4 years.  In that case, the applicant had sold ketamine to an undercover policeman on four separate occasions.  The first two occasions were on the same day and to the same undercover policeman.  The other two offences were committed in a disco.  The applicant had a bad record.  The court reduced the total sentence of 22 months to 18 months.  The notional starting point was 27 months.

14.  The closest case to the present one is Ng Yau Kauwhere the applicant pleaded guilty to 2 counts of trafficking in tablets containing methamphetamine.  The first count involved 998 tablets containing 8.53 grammes of methamphetamine, and the second count 2,961 tablets containing 24.55 grammes of the same drug.  They were sold by the applicants to 2 different undercover policemen for $21,000 and $63,000 respectively.

15.  The applicants there were sentenced to 4 years in respect of the first count and 5 years for the second count.  The judge ordered 3 years of the latter offence to run consecutively, making a total of 7 years.  The application for leave to appeal against sentence was dismissed.  However, the court expressed the view that the sentence was on the high side.  They left it undisturbed because the learned judge had given a full one-third discount notwithstanding that there had been a Newton hearing where the prosecution’s assertion that the applicants knew they were selling and delivering tablets containing specifically methamphetamine, was successful.

16.  It is to be noted in Ng Yau Kauthe amount of methamphetamine had a combined weight of 33.08 grammes and a total value of $84,000.  There were 2 counts and the sales were to two undercover policemen on two occasions on consecutive days. 

17.  In the present case, we are concerned with 5 counts.  The drugs had a combined weight of 28.62 grammes. 

18.  They were sold for $19,850 to the same undercover policeman over a period of six weeks.  Although I have said it is well settled that the combined weight is only one consideration to be borne in mind, it is nevertheless an important consideration.  It is common sense that the greater the amount the greater the probability of further dissemination.  And of course, the greater harm the drugs can do. 

19.  Also, in this case, it has transpired that the applicant was actually on police bail when the first four of the present offences were committed.  That is an aggravating factor. 

20.  In all the circumstances, I believe a total sentence of 7 years for the present case is appropriate, and that the total sentence of 9 years is manifestly excessive.  I would not disturb the subtotal of 6 years and 4 months.  But so far as Count 5 is concerned, only 8 months of it should be served consecutively, thus making a total sentence of 7 years.

Hon Wright J:

21.  The judge was correct in principle when he regarded the repeated offending by the applicant as an aggravating feature, which it was necessary to reflect in sentence.  He was also correct in having regard to the principle of totality.  In circumstances such as these, the theoretical starting point extrapolated from the aggregate sentence imposed is of limited relevance.  An appeal based simply on the proposition that that notional figure is excessive is misconceived. I agree, however, that the sentence imposed was manifestly excessive.  7 years imprisonment overall is appropriate.

Hon Tang Ag CJHC:

22.  The court grants leave of appeal.  The appeal is allowed and the sentence is reduced to 7 years as explained above.