HKSAR v. LAU SHING TAK

CACC 196/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 196 OF 2008

(ON APPEAL FROM CACC NO. 66 OF 2008)

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J U D G M E N T

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Hon Wright J, giving the judgment of the court:

1.  On 14 September 2007 a group of police officers involved in an anti-narcotics operation approached a vehicle of which the applicant was the driver.  A red and white paper carrier bag was found on the front passenger seat.  It contained a quantity of a dangerous drugs which were subsequently analyzed and found to be 998.56 grammes of a solid block which contained 686.54 grammes of cocaine and 1,230.84 grammes of powder which contained 984.63 grammes of ketamine.

2.  The applicant subsequently explained to the police, under caution, that he had been engaged by a person whom he had known for some five years to deliver the bag from Sheung Shui to Tsim Sha Tsui in return for a small financial reward.  When he had been handed the paper bag he opened it and saw a number of plastic bags inside it which he "guessed " contained dangerous drugs.  The applicant accepted the estimate of the street value of the drugs as $863,250.00.

3.  The applicant pleaded guilty to the offence of trafficking in a dangerous drug.  The judge appreciated that the applicant effectively had a clear criminal record.  She took a starting point of 24 years imprisonment and reduced that by the usual one third for the plea of guilty, resulting in a sentence of 16 years imprisonment.

4.  The judge adopted the correct approach to apply where different types of drugs attracting different tariffs are involved (YIP Wai-yin & Another v HKSAR CACC80/2003); she correctly followed the decision in A.-G. v Pedro Nel Rojas [1994] 2 HKCLR 69 which applied the tariffs for heroin as set out in R v LAU Tak-ming & Another [1990] 2 HKLR 370 to cocaine; she correctly identified the practice, which existed at the time of this offence, of applying the guidelines for ecstasy as set out in HKSAR v LEE Tak-kwan [1998] 2 HKLRD 46 to quantities of ketamine. The applicant seeks leave to appeal the sentence, on two bases, first, that the starting point taken by the judge was manifestly excessive when compared with starting points taken in other matters where similar quantities of a drug have been involved and, secondly, he failed to appreciate "the drastic consequences of his actions" and had he known “the precise nature and quantity of the drugs he was conveying, he would not have carried on in the way he did".

Ground 1: a comparison with other sentences.

5.  It is trite that an offender is to be sentenced on the factual basis of the offence committed by him.  Even where a tariff is prescribed or guidelines are provided, the tariff is, or guidelines are, applied to the facts of the individual case, and the individual offender, before the court.  For this reason, comparison with sentences imposed in other matters is only of limited value. 

6.  This is well illustrated by two recent decisions of this court, Thattephin Tanyamon v HKSAR CACC428/2007 (and the cases collected therein) and  MTWAZI Carlos Adam v HKSAR  CACC299/2007, each of which involved a foreign national trafficking heroin in fairly similar quantities through Hong Kong International Airport: in each instance the trial judge adopted a starting point of 24 years but in the former appeal that was substituted with a 21 year starting point whilst in the latter, the starting point was held to be appropriate. Neither sentence is necessarily wrong, they are simply different, each falling within the current sentencing range.

7.  We have been referred to a number of decisions of this court in support of the applicant’s and the respondent’s contentions. They are of scant assistance to us as they related to either a substantial quantity of a single drug to which only one tariff is applicable, or, as here, two different drugs involving two separate, and quite different, tariffs but, in those cases, the relative quantities of the drugs were vastly different from the instant matter.

8.  We would simply say this: whilst the judge correctly identified the appropriate individual starting points in respect of each of the quantities of cocaine and ketamine, taking an overall 24 year starting point in respect of the quantity of mixed drugs with which we are concerned would set the bar at such a level as to render extremely difficult the imposition of an appropriate sentence in respect of the very much larger quantities of drugs that come before the courts from time to time.

9.  In our judgment, the starting point adopted by the judge in this matter was manifestly excessive, particularly having regard to the fact that the larger proportion of drugs trafficked by the applicant was ketamine.  The appropriate starting point would have been one of 21 years imprisonment.

Ground 2: a lack of awareness of the nature and quantity of drugs

10.  Whilst we accept that the applicant may well not have known the precise nature of the dangerous drugs carried by him nor the precise quantity, we say immediately that this ground is devoid of any merit.  When he was interviewed under caution the applicant told the police that he had "guessed" or “thought” that the item he was being paid to carry was a dangerous drug: we note that his counsel in addressing the judge realistically said that the applicant “realised that it was drugs, dangerous drugs”.  Notwithstanding that knowledge, he went ahead without demur or even enquiry.  There is nothing to suggest that he showed a flicker of hesitation in carrying out his task.

11.  The applicant was prepared to carry whatever drugs were in the packet and whatever the quantity of them in order to earn money.  In doing so, he was quite willing to accept the cargo irrespective of what it may have been.  A person who voluntarily makes himself a willing link in the chain of distribution of illicit drugs of any kind, who willingly lends his assistance for a small financial reward to those engaged in this evil trade, can hardly expect to attract sympathy if it turns out that the consequences to him will be greater than he anticipated. 

Conclusion

12.  For the reasons given in respect of ground 1, the application for leave to appeal the sentence is granted: treating the hearing as the hearing of the appeal, we set aside the sentence and impose, in its stead, a period of 14 years imprisonment