HKSAR v. Cheng Ling Ling

CACC 66/2018

[2018] HKCA 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2018

(ON APPEAL FROM HCCC NO 289 OF 2017)

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J U D G M E N T

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1.The applicant applies for leave to appeal against the sentence of 6 years and 8 months’ imprisonment imposed on her by Andrew Chan J on 2 March 2018.

2.The sentence followed her conviction on her own plea to trafficking in a dangerous drug, namely 82.2 grammes of a solid containing 24.1 grammes of ketamine (Count 1), doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug, namely 84.5 grammes of a powder containing phenacetin, a Part 1 Poison (Count 2), trafficking in a dangerous drug, namely 22.4 grammes of a powder containing 62.4 grammes of ketamine and 18.27 grammes of a solid containing 13.14 grammes of cocaine (Count 3), and doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug, namely 481 grammes of a powder, which did not contained either a dangerous drug or a Part 1 Poison, and 153.2 grammes of a powder containing phenacetin, a Part 1 Poison (Count 4). 

3.The two offences of trafficking were contrary to section 4(1)(a) and (3) and the two offences of doing an act for the purpose of trafficking were contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap 134.

4.The brief facts giving rise to the offences were that on 17 October 2016, police officers intercepted the applicant, who was in the company of a male, outside a shopping centre at Tai Wai, Shatin. The police officers searched the grey bag that the applicant was carrying and found 7 packets containing a total quantity of 24.1 grammes of ketamine narcotic (Count1) and 6 packets containing 81.5 grammes of a powder containing phenacetin (Count 2).  They also found in her possession two mobile telephones and cash of $1395.10.  The male was also searched but nothing suspicious was found on him.  The police officers arrested the applicant and after she had been cautioned she said, “For the K Chai in that small grey recycle bag, I carried it for someone only.”

5.The police officers then conducted a search of the applicant’s residence where they found one packet containing 62.4 grammes of ketamine narcotic and 24 packets inside 2 packets of 13.14 grammes of cocaine narcotic (Count 3), and one packet of a substance containing 481 grammes of a powder and 57 packets of a substance containing 153.2 grammes of a powder containing phenacetin, amounting to 634.2 grammes (Count 4).  Also present in the residence were two electronic scales and one packet of resealable plastic bags.  After being cautioned, she said, “Ah Sir, that pile of stuff is dangerous drug too.  I also helped others carry it outside to someone only.”

6.In a subsequent video recorded interview, the applicant, when shown the 13 packets seized from her, said they were all ketamine which she recognised because she used to take it when she was young (the 13 packets relating to Counts 1 and 2), and when shown the other items found at her residence, said the two packets were cocaine (Count 3) and all other packets were ketamine (Count 4).  She explained that in the evening on 16 October 2016, she received all the drugs from an unknown male.  She was instructed to package the drugs, and in order to do so she purchased two electronic scales. After packaging the drugs, she was to pass them to another person on 17 October 2016 for which she would receive $1000 for every 1000 grammes of drugs. 

7.It was admitted that the street value of the ketamine was $85,495 and the cocaine was $19,110.  It is noted that the street value of ketamine was calculated on a total of 310.89 grammes of a powder which was then multiplied by $275 (being street value of ketamine per gram), but the actual ketamine narcotic involved was 86.5 grammes.  It is not clear how the street value of cocaine was calculated, whether it was done on the total solid of 18.27 grammes or the actual cocaine narcotic of 13.14 grammes.

8.The judge in his reasons for sentence outline the mitigation presented on behalf of the applicant.  She was at the time of sentence 34 years old and a single parent with an 8-year-old son.  She was on welfare benefits and as a result of financial difficulties she agreed to package the drugs for another.  It was submitted that she needed the money for her son’s extracurricular activities and out of greed and stupidity she committed the present offences.

9.This is how the judge sentenced the applicant[1].

10.On Count 1, for 24 grammes of ketamine he adopted a starting point of 54 months’ imprisonment which he reduced by one third for the applicant’s plea of guilty to 36 months’ imprisonment.  It should be noted that on an arithmetic calculation of the guideline tariff the starting point is 56 months’ imprisonment[2].

11.On Count 2, he noted that the applicant had trafficked in 81.5 grammes of a substance purported to be ketamine and for the purpose of sentencing treated her the same as he did on Count 1 and imposed a sentence of 36 months’ imprisonment after her plea. 

12.On Count 3, for 62.4 grammes of ketamine he adopted a starting point of 72 months’ imprisonment and for the 13.14 grammes of cocaine he enhanced the sentence by 1 year to 84 months’ imprisonment which he reduced by one third for the applicant’s guilty plea to 56 months’ imprisonment.

13.On Count 4, he noted that the applicant had trafficked in a total of 634 grammes of a substance purported to be ketamine and he adopted the ketamine to substance ratio in Count 1 of 24 grammes to 82 grammes (0.29 or 29%) and calculated the narcotic content to be 185 grammes for which he adopted a starting point of 90 months’ imprisonment in accordance with the guideline tariff.  He then reduced the starting point by one third for her guilty plea to 60 months’ imprisonment.

14.The judge then took a global view of the case and noted that the drugs involved consisted of 295 grammes of ketamine or its equivalent, and 13.14 grammes of cocaine.  He ordered that 6 months of Count 1, 6 months of Count 2, and 8 months of Count 3 run consecutively to each other and to the 60 months on Count 4, making a total sentence of 80 months’ imprisonment.

15.Mr Hanif Mughal, counsel for the applicant, advances three grounds of appeal against sentence. 

16.First, he contends that in relation to the sentence on Count 3, the judge was wrong to take the ketamine tariff as the base for sentencing and that he was wrong in principle not to cross check the starting point according to the tests as set out in HKSAR v Chan Yuk Leong, CACC 318/2013, 8 April 2014, unreported. 

17.I do not find this ground reasonably arguable. The judge applied the combined approach when sentencing for the quantities of ketamine and cocaine in Count 3 according to the methodology in HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367[3]. He was addressed on the cross check tests and clearly had them in mind when he passed sentence.  He arrived at a final starting point of 84 months’ imprisonment which he reduced by one third for the applicant’s guilty plea to 56 months’ imprisonment[4].

18.It is to be noted that he made no enhancement to the starting point for the aggravating factor of there being multiple drugs. The overall sentence imposed by the judge cannot be said to have been excessive and there is no basis for complaint.

19.Secondly, he contends that the judge by not considering the cross check tests meant that the extent and range of the upward adjustment of sentences on Counts 1, 2 and 3 ordered to run consecutive to the sentence on Count 4 was on the high side.  Thirdly, he contends that the overall sentence of 80 months’ imprisonment was also too high.

20.I do not consider the second and third grounds to be reasonably arguable as they allied to the first ground. 

21.There is an issue of sentencing principle in relation to Counts 2 and 4 that arose in oral submissions that provides the applicant a reasonably arguable ground of appeal against her sentence. However, depending on how the issue is resolved, it leaves open what the resultant sentence would be.

22.The judge was faced with a rather complicated case for sentencing in that he had to deal with multiple offences involving a batch of drugs, as well as substances believed to be drugs.  It is in relation to the latter matter that there is an issue.

23.The applicant on Counts 2 and 4 was sentenced for trafficking in quantities of a substance she believed was ketamine but which turned out to be in Count 2, a powder containing phenacetin, a Part 1 Poison, and in Count 4 a substance that was a combination of a powder that did not contained either a dangerous drug or Part 1 Poison, and a powder containing phenacetin, a Part 1 Poison.  In such circumstances, it has been held in HKSAR v Li Oi Yee [2012] 1 HKLRD 276 that a sentencing court should look at the sentence which would have been imposed for trafficking in the drugs the defendant believed he or she possessed, and accord a reduction in recognition of the fact that the physical element of the offence brought with it no harm. I will refer to this sentencing principle as the “no harm element”.

24.Whilst the judge was undoubtedly aware of the need to reduce the applicant’s sentence for this factor, it is arguable that the approach he took in doing so may not have been correct or complete, depending on how it is viewed[5]. He applied the same sentence of Count 1 (82.2 grammes of a solid containing 24.4 grammes of ketamine) on Count 2 (81.5 grammes of a powder) because the amount of substances were the same[6]. He acknowledged in the course of submissions that he was applying the same purity of the substance of 29% based on Count 1 on Count 4 when determining the narcotic content[7].

25.In other words, the judge determined the quantity of ketamine narcotic in Counts 2 and 4 by reducing the total quantity of the substances to 29%.  He seems to have done this on the basis that the applicant would have believed that she was trafficking in drugs with a narcotic content similar to the drugs in Count 1.  See R v Szmyt [2010] 1 Cr App R (S) 69, cited with approval in Li Oi Yee at paragraph 11, where the court presumed that the appellant believed he was importing ecstasy tablets of “a typical usual strength.”  Having reduced the quantity of the substances to 29% in each count, did the judge do so to cater for the fact that the applicant believed the substances that she was to package was of “a typical usual strength”, and if he did, should he have allowed for the “no harm element”, bearing in mind that there was a quantity of Part 1 Poison involved, or did he do so to cater for the “no harm element”, and if he did, was that the correct approach.

26.As to Count 2, the quantity of the substance that the applicant believed was ketamine, or contained ketamine, was 81.5 grammes.  Applying the ketamine to substance ratio in Count 1 of 24 grammes to 82 grammes (29%), as the judge did in Count 4, the quantity of narcotic would be 23 grammes which would attract, according to the guideline tariff, a starting point of 4 years and 7 months’ imprisonment.  Depending on the reduction for the “no harm element”, bearing in mind that the substance contained a Part 1 Poison, the starting point would be reduced by one third for the applicant’s guilty plea which conceivably may result in a sentence less than the 36 months’ imprisonment imposed by the judge. 

27.As to Count 4, the same issue arises.  The quantity of the substance that the applicant believed was ketamine, or contained ketamine, was 634 grammes, but based on the judge’s ketamine to substance ratio of 0.29, the quantity of narcotic would be 184 grammes which would attract, according to the guideline tariff, a starting point of 7 years and 7 months’ imprisonment.  Again, depending on the reduction for the “no harm element”, bearing in mind that 153.2 grammes of the powder contained a Part 1 Poison, the starting point would be reduced by one third for the applicant’s guilty plea which conceivably may result in a sentence less than the 60 months’ imprisonment imposed by the judge.

28.As already noted, the judge, having determined a sentence on each count, applied the totality principle and arrived at an overall sentence of 80 months’ imprisonment.  The appropriateness of the overall sentence will depend on whether the sentences on Counts 2 and 4 were correctly determined, and correct. 

29.It follows from what I have said that I do not find the three grounds of appeal reasonably arguable.  However, I do find the issue that has been raised in relation to the approach in sentencing on Counts 2 and 4 to be reasonably arguable, and grant leave on this limited basis.  In this respect, I grant leave to the applicant to amend her Perfected Grounds of Appeal. 

30.The applicant is reminded of her right to renew her application for leave to the Court of Appeal on the grounds that have not been found reasonably arguable, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application on these grounds of appeal.

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

Mr Hanif Mohamed Mughal, instructed by Kenneth Sit, for the applicant