HKSAR v. Islam S M Majharul
Read the full judgment text of CACC 67/2019 on BabelCite. This Court of Appeal judgment was delivered on 3 June 2020 before Hon McWalters JA and Zervos JA.
Criminal law – dangerous drugs – trafficking – sentencing – combined approach – two or more drugs – cocaine and ecstasy – Dangerous Drugs Ordinance Cap 134 s.4(1)(a) and (3) – sentencing guidelines – HKSAR v Lau Tak-ming and Hii Siew Cheng – HKSAR v Yip Wai Yin – base drug determination – potency over quantity – conversion test – ratio test – absurdity test – Form 8 recognizance holder – enhancement – guilty plea discount – one-third discount – The appellant, a 28-year-old Bangladeshi national and Form 8 asylum seeker, was found in possession of 51.7 grammes of cocaine and 479.26 grammes of ecstasy (street value $81,905 and $192,500 respectively) in Room 5 of a Sham Shui Po subdivided flat after police forced entry. He admitted receiving the drugs from a person named "Ali" outside Chungking Mansions and was keeping them pending further instructions, and pleaded guilty at the earliest opportunity. He was sentenced to 9 years and 6 months' imprisonment by Toh J. The Court of Appeal allowed the appeal and reduced the sentence to 8 years and 10 months, holding that the sentencing judge erred in using ecstasy as the base drug under the combined approach because cocaine is the more potent drug – The proper methodology required selecting the more serious drug in terms of potency as the base drug, not the drug in greater quantity, and combining quantities under a single drug's guidelines is only appropriate where the respective sentencing guidelines are very similar – Whether the starting point of 14 years 3 months was manifestly excessive – held yes, the starting point was manifestly excessive because it was derived from an incorrect methodology – cross-checks against the conversion test (12 years 1 month to 12 years 5 months), ratio test (11 years 10 months) and absurdity test (18 years 3 months) confirmed the correct notional starting point was 13 years 3 months – After applying the full one-third discount for the timely guilty plea, the final sentence was 8 years and 10 months – Appeal allowed; sentence of 9 years and 6 months set aside; substituted with 8 years and 10 months' imprisonment.
Legal issues: Correct methodology for determining the base drug under the combined approach in two-drug trafficking cases · Whether the starting point of 14 years and 3 months was manifestly excessive · Appropriate final sentence after applying guilty plea discount
Outcome: Appeal allowed; sentence of 9 years and 6 months' imprisonment set aside and substituted with a sentence of 8 years and 10 months' imprisonment.
Cited by 123 cases · Cites 13 cases
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CACC 67/2019 [2020] HKCA 300 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 67 OF 2019 (ON APPEAL FROM HCCC NO 379 OF 2018) _______________
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_______________ J U D G M E N T _______________ Hon Zervos JA (giving the Judgment of the Court): Introduction 1.By leave of the Single Judge[1] granted on 19 November 2019, the appellant appeals against his sentence of 9 years and 6 months’ imprisonment imposed on him by Toh J (“the Judge”) on 18 February 2019, following his plea of guilty to a single charge of trafficking in dangerous drugs, namely 51.7 grammes of cocaine and 479.26 grammes of 3,4-methylenedioxymethamphetamine (commonly known as “ecstasy”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The summary of facts admitted by the appellant 2.In the evening of 22 February 2018, the police pursuant to a search warrant, entered and searched Room 5 of a subdivided flat on the rooftop of 54 – 56 Un Chau Street, Sham Shui Po, Kowloon. 3.There was no one present inside the flat, so the police forced entry into the premises and searched Room 5. They found inside an unlocked drawer five packets, containing a total of 51.7 grammes of cocaine, 14 packets, containing a total of 2,500 tablets of 479.26 grammes of ecstasy, and an electronic scale. They also found on a bed, a letter addressed to the appellant from the Immigration Department concerning his non-refoulement application. 4.The appellant later returned to Room 5 and admitted that he was the occupier of the premises. He was searched and found in his possession were keys to the flat, the room and the drawer. The appellant was arrested, and he subsequently admitted in a video record of interview that he received the drugs from a person named “Ali”, outside Chungking Mansions, and was keeping them in his room while awaiting further instructions from him. He had yet to receive a monetary reward from Ali for doing so. 5.The estimated total street value of the cocaine and the ecstasy were $81,905 and $192,500 respectively. The mitigation advanced by the appellant 6.At his sentencing, the appellant was represented by Mr Andrew Bullett of counsel, who also appears for him in the present appeal. 7.It was noted that the appellant was 28 years old and a national from Bangladesh. He came to Hong Kong in 2013 and had a clear record. He applied for asylum and was a Form 8 recognizance holder at the time of the offence. 8.In presenting mitigation on behalf of the appellant, Mr Bullett briefly described the appellant’s background and circumstances, noting in particular that he had pleaded guilty to the present offence at the earliest opportunity. He recognised that as the appellant committed the offence when he was a Form 8 recognizance holder, this was an aggravating factor that would have to be reflected in an enhancement of the starting point adopted by the Judge. He suggested the enhancement should be no more than 6 months. He also recognised that as there were two drugs involved in the offence, the Judge should apply the conversion test, which would give a starting point of approximately 11 years in sentencing the appellant. The Judge’s reasons for sentence 9.After setting out the facts of the case and the personal background of the appellant, the Judge noted that there were two types of narcotics involved and briefly discussed the sentencing guidelines of each of them. She decided that she would adopt the combined approach in sentencing the appellant. 10.The Judge found the aggregate amount of dangerous drugs in the present case was 530.96 grammes. She noted that if she treated the 530.96 grammes as ecstasy, it would result in a starting point of 11 years and 3 months, whereas if it was all cocaine it would be 17 years and 6 months. As the amount of ecstasy was much larger than the cocaine, the Judge decided she would use ecstasy as the base drug for her calculation of the starting point. However, she said she would have regard to the fact that part of the 530.96 grammes was cocaine, a more serious drug in terms of potency than ecstasy, and in order to allow for this fact she would increase the starting point of 11 years and 3 months by 2 years to 13 years and 3 months. She then took into account the fact that the appellant was a Form 8 recognizance holder at the time of the offence, and further enhanced the starting point by 1 year to 14 years and 3 months’ imprisonment. 11.The Judge explained that there was no mitigation for the offence other than the appellant’s timely guilty plea for which she would award him the full one third discount. This resulted in a sentence of 9 years and 6 months’ imprisonment. The appellant’s ground of appeal 12.Mr Bullett complains that the Judge, when using the combined approach, erred in not basing her starting point on the sentencing guidelines for cocaine, a more potent drug, which should have been adjusted upward to allow for the significant quantity of ecstasy. He also complains that the Judge did not check the starting point against the results from the conversion test and ratio test, and as a consequence the starting point adopted by the Judge, of 14 years and 3 months imprisonment, was manifestly excessive.[2] 13.In his supplemental submissions, Mr Bullett states that the parties agree that the resulting starting point calculated in relation to:
The respondent’s submissions 14.Ms Lily Ho, for the respondent, concedes the Judge had adopted an incorrect methodology when calculating the initial starting point. However, she submits that there were two aggravating factors that warranted enhancement of the starting point. First, the involvement of two types of drugs, which allowed the appellant to cater for a wider market. Secondly, the fact that the appellant was a Form 8 recognizance holder at the time of the offence. 15.Consequently, Ms Ho contends that the ultimate sentence of 9 years and 6 months’ imprisonment was therefore appropriate. Discussion 16.As already noted, two dangerous drugs were involved in the present case, consisting of 51.70 grammes of cocaine narcotic and 479.26 grammes of ecstasy narcotic. 17.For comparison purposes, it is useful to set out in full the sentencing guidelines of the two drugs in order to have an overall appreciation of the two sets of guidelines in relation to each other as well as of the relevant bands of the guidelines in relation to the quantity of each drug involved in the present case. 18.The sentencing guidelines for trafficking in cocaine in HKSAR v Lau Tak-ming [1990] 2 HKLR 370 (as modified by HKSAR v Abdallah [2009] 2 HKLRD 437) are as follows:
19.The sentencing guidelines for trafficking in ecstasy in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 are as follows:
20.This Court has provided guidance on the sentencing approach that should be taken in relation to an offender for trafficking in two or more dangerous drugs in HKSAR v Yip Wai Yin & Anor,[8] where Ma CJHC (as he then was) stated:
21.The Judge in sentencing the appellant for the two different types of drugs involved explained the approach she would take as follows:
22.The Judge made it clear that she would adopt the combined approach and implicitly rejected the individual approach in sentencing the appellant. We are of the view that she was right to do so because the individual approach would require her adding the two starting points of the drugs together and substantially reducing the notional starting point to cater for the obvious oppressive result of 18 years and 9 months’ imprisonment.[11] 23.Having opted for the combined approach, the Judge was required to determine which of the two drugs she would use as her base drug. She chose ecstasy over cocaine. She seems to have taken this approach because of the significant quantity of ecstasy, representing 90 per cent of the total drugs. 24.The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious) drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point.[12] There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense. 25.There may also be cases where the sentencing court can combine the quantities of the two different drugs and calculate the starting point according to the sentencing guidelines of the base drug with appropriate adjustment. However, this will usually occur when the respective sentencing guidelines of the drugs involved are very similar, such as the guidelines for heroin/cocaine and Ice. In the present case, the sentencing guidelines of cocaine and ecstasy are different and therefore the Judge’s approach of combining the quantities of the two drugs and using the sentencing guidelines of ecstasy with further adjustment for the quantity of cocaine was not appropriate in the circumstances. 26.When comparing cocaine and ecstasy, cocaine is the more or most serious drug in terms of potency. Whilst the quantity of cocaine of 51.7 grammes represented only 10 per cent of the total drugs, it is nevertheless significant in terms of its amount and corresponding sentence of 8 years’ imprisonment. Even though the amount of ecstasy of 479.26 grammes has a corresponding sentence of 10 years and 9 months’ imprisonment. 27.In our view, the Judge should have employed the following methodology for the combined approach.
28.By this method, we arrive at a sentence of 8 years and 10 months’ imprisonment. 29.We observe that this sentencing approach is essentially conducted by an arithmetic calculation but of course it is subject to the discretion of the sentencing court when determining starting points, making adjustments for aggravating or mitigating factors, and assessing the overall sentence. Conclusion 30.For the reasons we have given, we allow the appeal, set aside the sentence of 9 years and 6 months’ imprisonment, and substitute it with a sentence of 8 years and 10 months’ imprisonment.
Ms Lily Ho, SPP, of the Department of Justice, for the respondent Mr Andrew Bullett, instructed by Massie & Clement, assigned by DLA, for the appellant [1] McWalters JA [2] See HKSAR v Chan Yuk Leong, unrep., CACC 318/2013, 8 April 2014, at [12] to [19]. [3] We have done all our calculations to two decimal places. [4] Conversion of 10 years and 9 months sentence (479.26 grammes of ecstasy) to the equivalent grammes of cocaine.
[5] Conversion of 8 years sentence (51.7 grammes of cocaine) to the equivalent grammes of ecstasy.
[6] Ecstasy accounted for 0.90 in weight of the total quantity seized (479.26/530.96 = 0.90), and 0.10 for the cocaine (51.7/530.96 = 0.10). The ratio of 0.90 of 11 years and 3 months (assuming 530.96 grammes of ecstasy) is 10 years and 1 month. The ratio of 0.10 of 18 years and 3 months (219 months) (assuming 530.96 grammes of cocaine) is 1 year and 9 months. The total is 11 years and 10 months. [7] A total of 530.96 grammes of cocaine according to the sentencing guidelines for cocaine is 18 years and 3 months. [8] [2004] 3 HKC 367. [9] These guiding principles endorsed in Hii Siew Cheng, at [103]. [10] Appeal Bundle, 7H-P. [11] The calculation of the starting point based on the individual approach is as follows:
[12] This was explained by Cheung JA in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, at [3]. [13] See Chan Yuk Leong, at [18]; HKSAR v Yau Ka Ming, unrep., CACC 144/2013, 23 August 2013, at [18]. [14] See HKSAR v Ali Saif, unrep., CACC 309/2017, 14 June 2018; HKSAR v Joof Saihou [2018] 3 HKLRD 456, at [29] to [32]. |
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