HKSAR v. YAU KA MING

CACC 144/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 144 OF 2013

(ON APPEAL FROM HCCC 30 OF 2013)

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J U D G M E N T

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Hon Lunn JA (giving the Judgment of the Court):

1. The applicant seeks leave to appeal against the sentences imposed on him on 16 April 2013 by Toh J, following his pleas of guilty to 2 counts of unlawfully trafficking in a dangerous drugs on 5 September 2012, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The counts

2. Count 1 alleged that on 5 September 2012 at Cornwall Court, 687-689 Nathan Road, Mongkok in Kowloon the applicant unlawfully trafficked in 12.96 grammes of methamphetamine hydrochloride.  Count 2 alleged that inside Room 3, Flat B on the 6^th floor of Cornwall Court the applicant unlawfully trafficked in 13.5 grammes of methamphetamine hydrochloride, 10.9 grammes of cocaine and 27.42 grammes of herbal cannabis.

REASONS FOR SENTENCE

3. As the judge noted in her Reasons for Sentence, the applicant had been intercepted by police officers as he stepped out of a lift on the 6^th Floor of Cornwall Court on the evening of

4. After a search warrant had been executed on the premises at Room 3, Flat B, 6^th Floor of Cornwall Court, the dangerous drugs the subject of Count 2 were found in plastic bags inside a desk in the premises, together with empty transparent re-sealable plastic bags, electronic scales, a pair of tweezers and a pair of scissors.  The electronic scales had traces of cocaine on them.

The applicant’s personal circumstances

5. The judge noted that the applicant was 35 years of age and had a “very poor” criminal record, having been convicted on no less than 26 previous occasions.  Three of those convictions were for the offence of unlawfully trafficking in dangerous drugs, the last of which was in September 2009 when he was sentenced to 4 years’ imprisonment.  The judge observed that the applicant had committed the instant offences only 8 months after his release from prison.  The applicant had been convicted on 4 occasions for the offence of possession of dangerous drugs.  In March 2009, he had been ordered to be detained in a Drugs Addiction Treatment Centre.

Starting point for sentence

6. The judge stated that the starting points for sentence for unlawfully trafficking in methamphetamine hydrochloride had been identified by the Court of Appeal in its judgment in R v Ching Kwok Hung[1] and that the guidelines laid down for heroin in  R v Lau Tak Ming[2] applied to cocaine.

7. Noting that both offences were committed in close proximity of time and place, the judge first considered the overall sentence to be imposed.  First, she stated that the overall starting point for sentence would be in the region of 13 to 14½ years’ imprisonment.  Then, she stipulated the latter sentence, stating that in doing so she had regard to all the circumstances, including the applicant’s “personal history and background”.  Finally, she stipulated a starting point of 7 years’ imprisonment in respect of Count 1 and 7½ years’ imprisonment in respect of Count 2.

Discount

8. The judge said that she afforded the applicant a discount of one third of the starting points taken for sentence.

Sentence

9. Accordingly, the judge sentenced the applicant to 4 years and 8 months’ imprisonment in respect of Count 1 and 5 years’ imprisonment in respect of Count 2, ordering the latter sentence to be served consecutively to the sentence of imprisonment imposed in respect of Count 1.  The total sentence of imprisonment imposed on the applicant was 9 years and 8 months.

GROUNDS OF APPEAL AGAINST SENTENCE

10. In the grounds of appeal against sentence Ms Monica Chow submitted that the overall starting point of imprisonment of 14½ years identified by the judge was manifestly excessive, having regard to the quantity of dangerous drugs involved.  Also, she contended that the judge had erred in ordering all the sentence of imprisonment imposed in respect of Count 1 to be served consecutively to the sentence of imprisonment imposed in respect of Count 2.

11. Ms Chow acknowledged that the applicant had a bad criminal record, including 3 previous convictions for unlawfully trafficking in dangerous drugs and accepted that in consequence the judge was entitled to enhance the sentences imposed on the applicant.

12. Ms Chow submitted that whether a ‘combined’ or ‘individual’ approach was taken for sentence, the paramount consideration was the totality of the dangerous drugs involved.  She observed that if the total amounts of methamphetamine hydrochloride involved were considered together, namely 26.51 grammes, then the total sentence of imprisonment after trial ought not to be more than 8 years.  She suggested that the appropriate sentence after trial for unlawfully trafficking in 10.9 grammes of cocaine was about 5 years’ imprisonment, whereas unlawfully trafficking in 27.42 grammes of herbal cannabis would attract a sentence not in excess of 6 months.

13. Ms Chow contended that if the judge had taken an 8-year starting point, calculated on the basis of the larger quantity of the serious drugs, namely 26.51 grammes of methamphetamine hydrochloride, and added to that the aggravating factors of the applicant’s bad criminal record and his unlawfully trafficking in cocaine and herbal cannabis, the overall starting point ought not to have been as high as 14½ years’ imprisonment.

14. As a counter check, she suggested that an overall starting point for sentence of 14½ years’ imprisonment would have been apposite for unlawfully trafficking in the range of 300 to 600 grammes of methamphetamine hydrochloride.

15. Ms Chow took no issue with the individual sentences imposed in respect of each of the counts.  The burden of her submission was that the judge had erred in making them wholly consecutive with one another.

A CONSIDERATION OF THE SUBMISSIONS

16. In determining that the appropriate “overall starting point for sentence for both counts would be in the region of 13 to 14½ years’ imprisonment”, the judge did not articulate any reason at all for having made that determination.  In our judgment, she fell into error in so stipulating.

17. With respect, the judge was correct to have regard to the proximity in time and place in respect to the commission of the two offences.  Clearly, they fell to be considered together.  Given the nature of the three different kinds of dangerous drugs which constituted the ‘cocktail’ of drugs in which the applicant trafficked unlawfully, an appropriate approach to sentence would be to have regard to the total quantity of cocaine and methamphetamine hydrochloride considered together, namely 37.41 grammes of narcotics.  Cocaine and methamphetamine hydrochloride attract heavy but not greatly dissimilar levels of sentence.  Then, it would be appropriate to enhance the resulting starting point for sentence by having regard to the 27.42 grammes of herbal cannabis.  Finally, as is not disputed, the judge was entitled to enhance sentence having regard to the applicant’s previous convictions for unlawfully trafficking in dangerous drugs.

18. As the judge noted, the guidelines established by this Court for the appropriate range of sentence for a person convicted after trial for unlawfully trafficking in 10 to 50 grammes of cocaine is 5 to 8 years’ imprisonment.  The range of sentence for unlawfully trafficking in 10 to 70 grammes of methamphetamine hydrochloride is 5 to 8 years’ imprisonment.  Accordingly, if the 37.41 grammes were all methamphetamine hydrochloride, the appropriate sentence would be about 8½ years’ imprisonment, whereas if it was cocaine the appropriate sentence would be about 7 years’ imprisonment.  However, the greater preponderance of the narcotic was methamphetamine hydrochloride.  Allowing for the ratio of the weight of the two different dangerous drugs and their related ranges of sentence, but also having regard to the aggravating factor that the applicant was trafficking unlawfully in two serious dangerous drugs, it would be appropriate to take a starting point for sentence of 8 years and 3 months’ imprisonment for the total amount of methamphetamine hydrochloride and cocaine.

19. Next, it would be appropriate to take into account the unlawful trafficking in the 27.42 grammes of herbal cannabis.  In the Attorney General v Tuen Shui Ming & Another[3], this Court laid down guidelines for unlawful trafficking in cannabis resin.  For quantities of less than 2,000 grammes, a sentence of up to 16 months’ imprisonment was stipulated.  In the judgment of the court, Power VP went on to say[4]:

“ Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.”

20. We are satisfied that in the circumstances of this case it would be appropriate to enhance the sentence of 8 years and 3 months’ imprisonment as described above by 3 months’ imprisonment in respect of the relatively small quantity of herbal cannabis.

21. Finally, the applicant’s criminal record, in particular the last two convictions for unlawfully trafficking in dangerous drugs in

22. Accordingly, in our judgment the appropriate overall total starting point for sentence was 9 years’ imprisonment.

23. There is no dispute that the applicant was entitled to be afforded a one third discount from the appropriate starting point taken for sentence.  Accordingly, the appropriate overall sentence was 6 years’ imprisonment.

24. Of course, it was required of the judge that she imposed a sentence of imprisonment appropriate to the respective counts.  Ms Chow was correct not to take issue with the sentences of imprisonment imposed by the judge in respect of each of those counts, namely 4 years and 8 months’ imprisonment for Count 1 and 5 years’ imprisonment for Count 2.

Totality

25. In order to achieve an appropriate totality of sentence of 6 years’ imprisonment, it is appropriate to order that 1-year imprisonment of the sentence of 4 years and 8 months’ imprisonment imposed upon the applicant in respect of Count 1 be ordered to be served consecutively to the sentence of 5 years’ imprisonment imposed on the applicant in respect of Count 2.

Conclusion

26. In the result, we allow the application for leave to appeal against sentence and, treating the application as a hearing of the appeal, quash the order of the judge that 5 years’ imprisonment imposed in respect of Count 2 be served consecutively to the sentence of 4 years and 8 months’ imprisonment imposed in respect of Count 1.  In its place, we substitute an order that one year of the sentence of 4 years and 8 months’ imprisonment imposed upon the applicant in respect of Count 1 be ordered to be served consecutively to the sentence of 5 years’ imprisonment imposed on the applicant in respect of Count 2.  Accordingly, the total sentence of imprisonment imposed on the appellant is 6 years.

[1] R v Ching Kwok Hung [1991] 2 HKLR 125.

[2] R v Lau Tak Ming [1990] HKLR 370.

[3] Attorney General v Tuen Shui Ming & Another [1995] 2 HKCLR 129.

[4] Attorney General v Tuen Shui Ming & Another, page135 lines 34-7.