HKSAR v. Leung Ka Ching

CACC 220/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 220 OF 2015

(ON APPEAL FROM DCCC NO. 222 OF 2015)

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BETWEEN

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J U D G M E N T
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Introduction

1.The applicant was charged with one charge of trafficking in dangerous drugs, namely 6.41 grammes of a solid containing 5.63 grammes of cocaine, and 8.98 grammes of a crystalline solid containing 8.68 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty to the charge before HH Judge G Lam in the District Court on 9 June 2015, and was sentenced to 54 months’ (or 4 years and 6 months’) imprisonment.

The facts

2.The applicant agreed to the following facts.  On 21 October 2014, at about 11:50 pm, police officers entered a flat at New Lucky House, Nathan Road (the “Flat”) in order to execute a search warrant.  The officers found the applicant inside the Flat sitting on a bed.  Upon a search of his body, a transparent re-sealable plastic bag containing 31 plastic bags were found inside the right front pocket of the applicant’s shorts.  A further 7 transparent re-sealable plastic bags of suspected dangerous drugs were found inside a red plastic box next to the applicant on the bed.

3.Subsequent examination by a Government Chemist revealed that the first batch of 31 plastic bags contained cocaine in the quantities set out in the charge, while the second batch of 7 plastic bags contained “Ice” as set out in the charge.

4.The applicant was arrested and upon caution said that he had bought the “Ice” and “Coke”, some of which he was to sell to others, while some was for his own consumption.  This admission was recorded as a post-recorded statement by a police officer in his notebook.  A further search of the Flat revealed an electronic balance, more transparent re-sealable bags, HK$600 cash and a key.

5.Upon inquiry, the registered owner of the Flat confirmed that she had rented the premises to the applicant for a daily rent of HK$250.

6.The estimated street value of the cocaine was HK$6,211.29, while the value of the “Ice” was HK$4,175.70; thus making a total value of HK$10,386.99.

7.In a subsequent video-recorded interview, the applicant admitted that he had bought a large packet of cocaine and divided it into smaller packets, to be sold at HK$400 per packet.  He did not intend to consume any of the cocaine, all of which was for re-sale.  On the other hand, he asserted that the “Ice” was partly for sale at HK$400 per packet, and partly for self-consumption.  He used the balance to weigh the drugs and the transparent re-sealable bags for packaging.  He had started selling dangerous drugs since his release from the Drug Addiction Treatment Centre in September 2014.

Mitigation

8.In mitigation, it was submitted on his behalf by counsel then acting for the applicant that he had committed the offence in order to sustain his own addiction, and that at the time of sentence he was still serving time in the Drug Addiction Treatment Centre for a separate offence of possession of dangerous drugs. It was further submitted that the applicant took both cocaine and “Ice”, and that about a half to two-thirds of the drugs seized were meant for the applicant’s own consumption.  A mitigation letter written by the applicant was also submitted to the judge.

Reasons for sentence

9.In determining the starting point, the judge considered the sentencing principles established in cases concerned with trafficking in more than one type of dangerous drug, namely HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Cheng Yat Ming (unrep., CACC 455/2006); and HKSAR v Chan Yuk Leong (unrep., CACC 318/2013).  Using the so-called ‘combined approach’, the judge found that since the “Ice” was the more significant drug in terms of weight and potency, it should form the basis of the starting point.  Accordingly, he identified a starting point of 6½ years’ imprisonment for the “Ice” component and a starting point of 3½ years’ imprisonment for the cocaine component.  He then increased the starting point of 6½ years’ imprisonment in respect of the “Ice” quantity by 15 months for the cocaine component, arriving at an overall starting point of 93 months’ imprisonment.

10.The judge accepted that the applicant was a long term drug addict, but rejected the claim that up to two-thirds of all the drugs found in his possession were for his own consumption, an assertion which contradicted what the applicant had said in his video-recorded interview.  He nevertheless reduced the overall starting point by 12 months’ imprisonment to 81 months to reflect the fact that some of the drugs were for his own consumption in accordance with the principles discussed in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

11.Giving the applicant a full one-third discount from 81 months for his plea of guilty, the judge passed a sentence of 54 months’ imprisonment.

Grounds of appeal against sentence

12.In his Amended Perfected Grounds of Appeal, Mr Victor Lee on behalf of the applicant submits that the original starting point of 93 months’ imprisonment for the quantity concerned (before discounting the sentence for the element of the applicant’s own consumption of some of the drugs) was manifestly excessive and/or wrong in principle.  He argues that by applying the ‘ratio test’, the starting point should have been about 77.5 months’ imprisonment; or, by applying the ‘conversion test’, about 84.2 months’ imprisonment.  By either test, the original starting point of 93 months was manifestly excessive.  He takes no issue with the discount for the applicant’s own consumption of some of the drugs.

13.Mr Lee submits that viewing the combined approach as set out in HKSAR v Yip Wai Yin (supra), the starting point of 93 months’ imprisonment adopted by the judge did not pass the ‘absurdity test’: that is, if the total quantity of dangerous drugs involved in this case was considered as being only “Ice” (the larger and more potent of the two drugs involved), namely 14.31 grammes of narcotic, the sentence for such a quantity on an arithmetical basis by reference to the relevant tariff band in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 should have been no more than 87 months’ imprisonment.

14.Mr Lee submitted two further bases for calculating the starting point in a case involving two different types of drugs: the ‘ratio approach’ and the ‘conversion approach’. Using the ‘ratio approach’, the ratio of “Ice” and cocaine (namely 0.6 and 0.4) with their corresponding guideline sentences, namely 87 months and 63.6 months respectively, would have given a total of about 77.5 months’ imprisonment[1].  Using the ‘conversion approach’, the amount of cocaine would have attracted around 44 months’ imprisonment[2], which would convert to around 1.6 grammes of “Ice”; the total quantity of “Ice” would then be 10.28 grammes, giving a starting point of about 84.2 months’ imprisonment[3].

15.Therefore, it was submitted, the overall starting point should have been somewhere between 77.5 months and 84.2 months, with an average of around 80 months’ imprisonment.

The respondent’s submissions

16.Mr Ivan Leung, for the respondent, does not take issue with Mr Lee’s calculations under the various tests he addressed[4].  However, he submitted that these ‘tests’ were merely cross-checks on the total sentence, and a strictly arithmetical approach should not be slavishly applied regardless of the circumstances.  He also emphasised that the tests applied by the applicant did not take into account such aggravating features as were warranted by the facts of this particular case.  Those would include the fact that the applicant had a previous conviction for trafficking in dangerous drugs; that he had barely a month and a half before the commission of this offence emerged from serving a sentence for simple possession in the Drug Addiction Treatment Centre; and the fact that the present offence was committed whilst on bail for another offence of simple possession.  Further, the applicant was convicted in the present case of trafficking in more than one kind of dangerous drug.  He submits that the upward adjustment of 15 months’ imprisonment for the cocaine component from the 6½ years’ (or 78 months’) imprisonment for the “Ice” component, leading to an overall notional sentence for the two types of drug after trial of 93 months’ imprisonment, was within the sentencing discretion of the trial judge.

Consideration

17.The problem with a strictly arithmetical application of sentencing guidelines is that they can sometimes overlook or obscure features which go to aggravate the starting point for sentence.  Indeed, with respect to Mr Lee’s written submissions (and his oral submissions until engaged by the Court on the issue), they had been concerned purely with an arithmetical analysis of the appropriate sentence based on quantity alone.  In this particular case, however, Mr Leung has identified a number of factors which taken together indicate that a higher notional starting point was appropriate than a strictly arithmetical application of sentence to quantity would suggest.  First, the applicant had a previous conviction for trafficking and had recently emerged from custody, albeit for an offence of possession of drugs: see HKSAR v Law Num Chun [2014] 5 HKLRD 500, at para 31.  Secondly, the present offence was committed on bail for an offence of possession of drugs committed one month earlier: see HKSAR v Leung Ting Fung [2015] 1 HKC 290, at para 34.  Thirdly, the applicant was convicted in the present case of trafficking in two different and serious types of dangerous drug, thus catering for a wider market than one single drug: see HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011), at para 11; HKSAR v Ramirez [2015] 1 HKLRD 966, at para 19.

18.On the other hand, it would seem that the previous trafficking case cannot have been of the worst type, since it was dealt with in the magistracy by a sentence of 12 months’ imprisonment.

19.Had these aggravating features been absent, I might have agreed that there was a reasonable argument that a notional sentence after trial of 93 months’ imprisonment for these particular quantities of “Ice” and cocaine was on the high side, when viewed arithmetically in relation to the relevant guidelines.  However, one cannot ignore factors which the appellate courts have long identified as aggravating features in drugs cases, all of which appear to have been present, to a greater or lesser extent, in this case.

20.In the circumstances, I am not persuaded that there are reasonably arguable grounds of appeal in this case.  The application for leave to appeal against sentence is therefore refused.  The applicant is duly advised of his right to renew his application to the Court of Appeal and the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of this application.

Mr Leung Man-fung Ivan, PP, of the Department of Justice, for the Respondent

Mr Victor K C Lee, instructed by the Director of Legal Aid, for the Applicant

[1] Skeleton Argument for the applicant, para 24

[2] The first guideline for cocaine works out to be 2 years, plus an additional 3.6 months’ imprisonment per gramme. Therefore, 5.63 grammes of cocaine would attract: 24 + (3.6 x 5.63) = 44 months.

[3] Skeleton Argument for the applicant, para 26

[4] Written submissions for the respondent, para 16