HKSAR v. CHUI CHI WAI AND ANOTHER

CACC 490/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 490 OF 1999

(ON APPEAL FROM HCCC NO. 126 OF 1999)

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J U D G M E N T

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Wong JA:

1. The applicants, CHUI Chi Wai (D1 at trial) and YIP Kwan On (D2 at trial) were convicted before a judge and a jury in the Court of First Instance on 27 April 1998 of trafficking in 18,797 tablets containing 2,101 grammes and 55.77 grammes of tablet fragments containing 21.44 grammes of MDMA, commonly known as ecstasy. In addition, D2 was convicted of another count of trafficking in 19,892 tablets containing 2,268 grammes and 88.77 grammes of tablet fragments containing 34.12 grammes of the same substance. Their convictions were quashed and sentences set aside on appeal by the Court of Appeal on 28 April, 1999. A retrial was ordered.

2. The retrial took place before Jackson J on 26 August 1999 when both applicants pleaded guilty to Count 1 and D2 also pleaded guilty to Count 2. D1 was sentenced to 9 years imprisonment on the first and sole count to which he pleaded guilty. D2 was sentenced to 9 years imprisonment on each count and the judge ordered 3 years of the sentence on Count 2 to be served consecutively with the sentence of 9 years imposed on Count 1, making a total sentence of 12 years. The applicants now seek leave to appeal against their respective sentences.

3. The facts were that in the afternoon of 19 March 1997, police officers observed a meeting in the Kowloon Hotel in Tsimshatsui between the applicants and a third man. The three of them were later seen to walk along Nathan Road, go into Kowloon Park and then walk towards Carnavon Road. At this juncture D2 left D1 and the other man. D2 was subsequently seen to enter a building at No. 35 Cameron Road. He left the building after a short while, holding a plastic bag in his hand and proceeded towards Chatham Road. Outside No. 41 Granville Road, D2 gave the plastic bag to D1 and D1 and the other man left by a taxi. When they alighted from the taxi in Austin Road, D1 and the other man were arrested and the plastic bag containing the dangerous drug in Count 1 was seized. Later on that afternoon D2 was stopped and arrested. Among the articles found on his person from a body search were a bunch of keys one of which fitted and opened the door of Flat C, 6th Floor, No. 35 Cameron Road. Inside the premises, the officers found the quantity of dangerous drug which formed the subject matter of Count 2.

4. In a subsequent interview with the police, D2 admitted borrowing money from someone and as he could not repay the loan, the lender asked him to carry two bags of pills to the lender's friend. In return he would receive $6,000 as a reward. On 19 March, he picked up two bags of pills from a person near Chatham Road. He took them home and later gave one of the bags to D1.

5. After the pleas of guilty from the applicants, the judge called for background reports and adjourned sentence until 17 September 1999. The judge took a starting point of 12 years for each count and imposed the sentences on the two applicants that we have already indicated. The judge declined to give a full one-third discount to the applicants, despite their pleas of guilty, because he took the view that the pleas were tendered at the retrial and not at the first trial. He gave each of them a discount of one-quarter. The result was that D1 received a sentence of 9 years whereas D2's sentence was one of 12 years as 3 years of the sentence on Count 2 was ordered to be served consecutively with the 9 years sentence imposed on Count 1, taking totality into account. This effectively amounts to a starting point of 16 years for D2 for the total quantity of about 4,400 grammes of ecstasy in Counts 1 and 2. It is these two matters, namely the starting point and the percentage of discount, that give rise to the complaints before us.

6. We propose to deal with the point on discount first. In passing sentence on the applicants, the judge had this to say about discount at p.14 of the transcript :

" I then turn to the question posed by their pleas of guilty and the effect that such pleas should have on their sentences, given the history of the case and the fact that initially they pleaded not guilty, were tried and convicted and that those convictions were overturned on appeal.

As to that matter, I found some assistance from the judgment of the Court of Appeal in the case of R v Ng Wing-kwong [1995] No. 62 Criminal, in which it was stated in terms that the amount of discount in such circumstances would not necessarily be the customary one-third, but was a matter falling to be weighed by the sentencing court."

The facts in Ng Wing-kwong are very similar to the present case. In delivering the judgment of the Court, Mayo JA (as he then was) said :

" While the question of the amount of discount is very much a matter for the consideration of the trial judge there was a complication in the present case.

The trial was a retrial. On the previous occasion the applicant had pleaded not guilty to the offence and had been sentenced to 20 years' imprisonment. It is in these circumstances that the trial judge did not give a discount of 33% of the term.

We do not think that the trial judge's approach in this respect can be faulted. The applicant did not plead guilty at the first trial. This was a factor which could properly be weighed by the court."

Since the decision of Ng Wing-kwong in 1995, this Court has on a number of occasions in recent years pronounced that a full one-third discount is the norm rather than the exception for a timely plea of guilty and it is only in exceptional circumstances that a lesser discount than one-third should be given. It is advisable for sentencing judges and magistrates to take heed and bear this in mind when passing sentence in cases where pleas of guilty have been entered.

7. The applicants pleaded guilty at the retrial and these cannot be said to be truly timely pleas. They were each given a discount of one-quarter which is not an insubstantial discount. In these circumstances, we are not prepared to interfere with the judge's exercise of discretion.

8. The case of HKSAR v Lee Tak-kwan [1998]2 HKC 371 laid down sentencing guidelines for the first time in Hong Kong for trafficking in ecstasy. It is recognized in the decision that ecstasy is less harmful than some other hard drugs such as heroin. Mortimer VP who delivered the judgment of the Court said under the heading "Conclusion" at p.378 :

" The aim must be to achieve a scale of sentencing for trafficking which will deter those who seek to profit out of the abuse of the drug which has no lawful medical use. Those who must principally be deterred are those who import or manufacture the drug or who indulge in its syndicated supply.

At the same time a balanced approach is required. As a drug which is not addictive and has at most a very low level of toxicity, it does not represent a major threat to society when compared with drugs of high toxicity and addiction such as heroin. But this is not to say that it represents no threat. Idiosyncratic effects are known which can, when combined with prolonged exertion or other drugs, lead in isolated cases to serious medical complications and even death. On the other hand such idiosyncratic effects can arise from almost any other drug which is taken.

There is some suggestion that young people may regard 'ecstasy' as a 'safe' drug and that they may think that the authorities are 'relaxed' about its control. If so, these impressions must be corrected.

Balancing these factors we consider that the appropriate guidelines to adopt for sentencing after trial having regard to narcotic content are as follows :

Up to 25g	―	entirely within the discretion of the sentencer
Over 25 to 400g	―	two years to four years
400 to 800g	―	four years to eight years
Over 800g	―	eight years and upwards

At the lower levels, it will be necessary for the sentencer to make a careful assessment of the real criminality involved. For trafficking in very small quantities, immediate custodial sentences for first offenders may not always be necessary.

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.

Some increase of the levels will be justified, for example, where there is evidence of importation or manufacture or other aggravating circumstances for which the accused is responsible."

9. 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 LEE Tak-kwan, 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. A discount of one-quarter for each applicant will be taken into account to calculate the actual sentences.

10. In the result, we grant leave and treat the applications as the hearing, we allow the appeal to the following extent. The sentence imposed in D1 on Count 1 will be reduced to 7 1/2 years from 9 years. The sentence of D2 will be reduced to 7 1/2 years on each count with 2 1/2 years of the sentence on Count 2 to be served consecutively with the sentence of 7 1/2 years on Count 1, making a total sentence of 10 years. This has the effect of reducing D2's sentence by 2 years.