Read the full judgment text of CACC 147/2016; CACC 346/2016; CACC 375/2017 on BabelCite. This Court of Appeal judgment was delivered on 18 July 2018 before Macrae VP, McWalters JA and Poon JA.
Criminal law – dangerous drugs – trafficking in ketamine – sentencing guidelines – cross-border trafficking – enhancement of sentence – Department of Justice statistics – expert medical evidence – consolidated appeals involving three applicants who pleaded guilty to trafficking in ketamine, with operative narcotic quantities of 1,670 grammes (Chan Ka Yiu), 2,898 grammes plus 2.74 grammes of methamphetamine hydrochloride (Leung Lok Yi), and 3,550 grammes (Yeung Lok Hei); two cases involved cross-border importation from the Mainland at Lok Ma Chau Control Point, one involved street trafficking in San Po Kong, Kowloon – first issue: whether the sentencing guidelines for trafficking in ketamine established in Hii Siew Cheng [2009] 1 HKLRD 1 remain valid in light of a claimed decline in ketamine abuse – held: yes; the Hii Siew Cheng guidelines remain valid and there is no warrant for relaxing them – the court relied on expert evidence from Professor Laidler, Dr Chu and Professor Tang confirming that the harmful effects of ketamine feared in Hii Siew Cheng have been fully justified, including irreversible urological damage, bladder damage with possible renal failure, brain atrophy, cystitis, psychosis and depression, and the apparent decline in prevalence may itself be attributable to the consistency and severity of the guidelines – second issue: whether further detailed guidelines are needed for trafficking in ketamine narcotic substantially above 1,000 grammes – held: no; only 13 of 56 post-Hii Siew Cheng cases involved amounts over 1,000 grammes, and the existing approach in Sin Chung Kin [2013] 1 HKLRD 627 (starting point no less than 18 years for 2,000g, no less than 20 years for 3,000g, with discretionary increases above 3,000g not proportional to quantity) and re-affirmed in Chow Yau Ching [2014] 2 HKLRD 639 provides sufficient guidance – third issue: whether guidelines should be issued for cross-border enhancement of ketamine trafficking sentences – held: yes; new guidelines issued to apply prospectively only: up to 500g of ketamine narcotic – up to 6 months' enhancement; 500-1,000g – 6 months to 1 year; 1,000-3,000g – 1 to 2 years; over 3,000g – 2 years – Chan Ka Yiu's appeal dismissed: 18 months' enhancement for the international element was appropriate given her prominent role in packaging and carrying 1,670g of ketamine, where her fingerprints were found on the packaging, and the 36% total discount (one-third for plea plus 2.6% for participation in an unsuccessful controlled delivery) was not interfered with, the additional discount for controlled delivery being within the trial judge's discretion per Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692 – Leung Lok Yi's appeal dismissed: 42.15% discount correctly calculated using the same 'just under 43%' language as Toh J in Kam Siu Wang, and 2 years' enhancement for the international element was appropriate for slightly more than 2½ times the 1,130g quantity in Tsang Koon Lap and the additional methamphetamine hydrochloride component – Yeung Lok Hei's appeal dismissed: starting point of 19 years 9 months and final sentence of 13 years 2 months' imprisonment for street trafficking 3,550g of ketamine was neither manifestly excessive nor wrong in principle, and the applicant could not have complained had the sentence been slightly longer – all three applications for leave to appeal against sentence refused.
Legal issues: Continuing validity of Hii Siew Cheng sentencing guidelines for ketamine · Need for sentencing guidelines for ketamine trafficking above 1,000 grammes · Guidelines for cross-border enhancement of ketamine trafficking sentences · Chan Ka Yiu - international element enhancement and discount for plea/assistance · Leung Lok Yi - discount calculation and international element enhancement · Yeung Lok Hei - starting point and sentence for large-quantity street trafficking
Outcome: All three applications for leave to appeal against sentence refused and all three appeals dismissed. The court issued new guidelines for cross-border enhancement of ketamine trafficking sentences, to apply prospectively only.
Cited by 15 cases · Cites 9 cases