HKSAR v. Cheng Chi Wai

[English Translation–英譯本]

CACC 50/2019

[2021] HKCA 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 50 OF 2019

(ON APPEAL FROM HCCC NO 240 OF 2018)

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Before: Hon Yeung VP, Pang JA and M Poon J in Court

Date of Hearing: 27 January 2021

Date of Judgment: 2 March 2021

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JUDGMENT

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.The appellant (CHENG Chi Wai) pleaded guilty to a total of four charges in the Magistrates’ Court, including (1) trafficking in 290 grams of dangerous drug cocaine (Charge 1); (2) manufacture of dangerous drug cocaine (Charge 2); (3) possession of 4.65 grams of dangerous drug “Ice” (Charge 3); and (4) manufacture of dangerous drug cocaine (Charge 4), and was committed to the High Court for sentence.

2.On 31 January 2019, Mr. Justice Poon, Judge of the Court of First Instance of the High Court (the trial judge) adopted a starting point of 13 years and 6 months; 38 years; 2 years and 34 years for the above four charges respectively.

3.Due to the appellant’s timely guilty pleas, the trial judge reduced the above starting points by one-third to 9 years (Charge 1); 25 years and 4 months (Charge 2); 1 year and 4 months (Charge 3); and 22 years and 8 months (Charge 4).

4.The trial judge ordered that the sentences for Charges 2 to 4 be served concurrently with one another, but consecutively to 1 year and 8 months out of the sentence for Charge 1, coming to an overall sentence of 27 years.

5.Having been granted leave by a single judge of the Court of Appeal, the appellant launched a formal appeal against sentence through his counsel Mr. James Tze.

Facts

6.At around 9:38 p.m. on 10 August 2017, the appellant was stopped and searched by the police at a car park on Tong Yan San Tsuen Road, Yuen Long and 335 grams of a solid containing 290 grams of cocaine was found in the paper bag that he was holding in his hand (Charge 1).

7.The police immediately took the appellant to his residence nearby at The Parkhill to conduct a search. The police found at different parts of his residence at The Parkhill a total of 1.747 kilograms of cocaine, drug-manufacturing paraphernalia and materials including a large amount of baking powder (Charge 2). The police also found 4.65 grams of dangerous drug “Ice” on a tea table in the living room (Charge 3).

8.The appellant admitted that the above drugs and drug-manufacturing paraphernalia and materials all belonged to him, and they had nothing to do with his girlfriend who was at the scene. The appellant was the tenant of the residence at The Parkhill, and his girlfriend was the tenant of another residence nearby (the residence on Hong Lok Road).

9.The police managed to enter (the residence on Hong Lok Road) by keying in the electronic lock passcode provided by the appellant and found upon search of different parts therein another batch of cocaine with a total weight of 914 grams, as well as drug-manufacturing paraphernalia and materials including some baking powder (Charge 4).

10.The appellant admitted that the paraphernalia and materials seized from the residence at The Parkhill and the one on Hong Lok Road were used for processing cocaine and the packaging of processed cocaine. The appellant said that his friend Kit Jai had been supplying him with cocaine for processing and sale for a year, but he could not remember how many times he had obtained cocaine from Kit Jai. The appellant also explained his drug-manufacturing process.

11.Information showed that the value of cocaine involved in Charge 1 (if it was “crack cocaine”) was HK$437,845 and that in Charge 2 and Charge 4 (if it was “crack cocaine”) was HK$3,930,816.

Appellant’s Background and Mitigation

12.At the time of sentencing, the applicant was 40 years old and had a daughter about two years old. The applicant had 17 criminal convictions, including six counts of possession of “dangerous drugs” and one count of “trafficking in dangerous drugs”. The applicant was sentenced to six years’ imprisonment in 1997 for “trafficking in dangerous drugs”. In 2008, the applicant was sentenced to 4 years and 4 months’ imprisonment for possession of “dangerous drugs” and he was only released in September 2010.

13.At the trial, Mr. Tsang, counsel representing the applicant, stressed that not only did the applicant cooperated fully with the police, but he also pleaded guilty to the charges. He pointed out that as the applicant had a 70-year-old mother and a daughter aged just around two, he hoped that the court could pass a lenient sentence and, if possible, order the sentence on the four charges to run concurrently.

14.Mr. Tsang further suggested that the starting point for manufacturing “dangerous drugs” should be 1.8 times that of trafficking in the same quantity of “dangerous drugs”. The dialogue between Mr. Tsang and the trial judge was as follows:

“Judge: … is there any difference between the sentencing guidelines for trafficking in and manufacturing of dangerous drugs?

Tsang: Yes, they are different. According to the case of Wong Ping Kay [2002] 3 HKLRD 161, generally speaking, the starting point is multiplied by 1.8 times.

Judge: Multiplied by 1.8, right?

Tsang: Yes, yes. But of course, there are other cases, say, if the facts are very serious, the court may not invariably follow the guideline of 1.8 times.”

Trial Judge’s Reasons for Sentence

15.On Charge 1, given the quantity of the drugs (i.e. 290 grams of cocaine), the trial judge considered that the appropriate starting point should be around 13 years and 6 months. Due to the applicant’s guilty plea, the sentence was reduced by one-third to 9 years. With regards to Charge 2 and Charge 4, the trial judge noted that if the charges had been “trafficking in dangerous drugs”, based on the quantity of drugs in these charges (i.e. 1.747 kilograms of cocaine and 914 grams of cocaine), the appropriate starting points would have been 24 years and 21 years and 6 months respectively.

16.The trial judge was of the view that if the suggestion by Mr. Tsang to multiply the starting point for “trafficking” in the same quantity of “drugs” by 1.8 times was adopted by reason that the charge was one of “manufacturing dangerous drugs”, the starting points for Charge 2 and Charge 4 would then be 43 years and 38 years respectively. The trial judge considered those starting points excessive, and therefore he made the starting points for “drug-manufacturing” 1.6 times the starting point for “trafficking” in the same quantity of “drugs”, that is, around 38 years and 34 years as a result.

17.The trial judge also reduced the starting points of 38 years and 34 years by one-third to 25 years and 4 months and 22 years and 8 months on account of the applicant’s guilty pleas.

18.On Charge 3, the trial judge adopted a starting point of 2 years and reduced the sentence by one-third to 1 year and 4 months because of the applicant’s guilty plea.

19.Taking into account the totality principle, the trial judge reckoned that the sentences for Charges 2 to 4 should run concurrently, while 1 year and 8 months out of the 9 years’ sentence for Charge 1 should be served consecutively to the 25 years and 4 months for Charges 2 to 4, resulting in a total sentence of 27 years.

Grounds of Appeal

20.Mr. Tze considered that the total sentence imposed on the applicant was manifestly excessive. However, on individual charges, his complaint was only against the sentences for Charge 2 and Charge 4.

21.Mr. Tze submitted that the trial judge had erroneously held that the sentence for a general “drug-manufacturing” offence should be 1.8 times that of a “drug-trafficking” offence involving the same amount of drugs. He took the view that the case of Wong Ping Kay cited by the trial judge did not support that proposition either.

22.Mr. Tze also pointed out that the trial judge had, relying on the market value of the drugs involved, mistakenly held that the facts of the case were serious. Mr. Tze considered that it was only a medium-sized “drug-manufacturing” case which should not lead to a starting point of almost 40 years.

23.Mr. Tze cited the sentences in a number of “drug-manufacturing” cases to show that sentences for “drug-manufacturing” offences could be far lower than the 1.6 times adopted by the trial judge when compared to sentences for “drug-trafficking” offences with the same quantity of “drugs”.

24.Mr. Tze took the view that there should not be a fixed multiple for “drug-manufacturing” offences involving the same quantity of “drugs” as in a “drug-trafficking” offence. He also believed that the larger the amount of drugs involved, the smaller the multiple should be.

Discussions

25.The sentencing of “drug-manufacturing” offences is more difficult than that of “drug-trafficking” offences, the main reason being that the quantity of drugs involved in a “drug-trafficking” offence is fixed, and the sentence is based mainly on the quantity of the drugs; whereas the quantity of drugs involved in a “drug-manufacturing” offence is extremely difficult to determine. The drugs seized by the police in a “drug-manufacturing” case represent only the quantity of drugs the defendant had manufactured but not yet sold at the moment the case was cracked. For “drug-manufacturing” cases, it would be inappropriate to deliver a sentence based solely on the quantity of drugs seized.

26.However, there is no doubt that sentences for “drug-manufacturing” offences are far heavier than those of “drug-trafficking” offences involving the same quantity of drugs. In R v Cheung Wai Kwong & Anor [1997] 3 HKC 496, the Court of Appeal made it clear that:

“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”

(An unofficial Chinese translation of the preceding paragraph also appeared in the original text.)

27.It is evident in certain cases that with “drug-manufacturing”, even though only a small amount of drugs was seized, the starting point should not be lower than 10 years’ imprisonment. In R v Wong Chun Ping & Ors [1984] HKLR 247, Chief Justice Roberts made the following suggestion on page 257 of his judgment:

“88. We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years' imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of D.D.”

(An unofficial Chinese translation of the preceding paragraph also appeared in the original text.)

28.In Cheung Wai Kwong, the Court of Appeal took the view that sentencing based on the quantity of drugs seized might be outdated. In that case, the amount of drugs seized by the police at the drug-manufacturing workshop was not large, as during the time the police took to break into the premises, the defendant had flushed some of the drugs down the toilet and cleaned the drug-manufacturing paraphernalia with water. As a result, the quantity of drugs seized by the police was not large.

29.The Court of Appeal ruled that the amount of drugs seized in a “drug-manufacturing” case is only one of the factors to be taken into account in sentencing. The Court of Appeal also ruled that if the drug-manufacturing workshop was of a significant scale and very active, the starting point of the sentence would easily be in excess of 20 years.

30.This Court agrees that the starting point for “drug-manufacturing” offences should not necessarily be linked to the starting point for “drug-trafficking” offences with the same quantity of “drugs” and there should be no fixed proportion between the two. The starting point for “drug-manufacturing” offences must be based on the overall circumstances of individual cases.

31.The quantity of drugs seized at a drug-manufacturing workshop must be one of the relevant factors affecting sentencing as the quantity of drugs seized shows, to some extent, the size and productivity of the drug-manufacturing workshop, and it also reflects the seriousness of the offence.

32.However, apart from the quantity of drugs seized, the length of time for which the drug-manufacturing workshop has existed and operated, its scale and productivity, the quantity and standard of drug-manufacturing paraphernalia, the extent to which the defendant participated in the drug-manufacturing and the role he played in the matter are all important factors to be taken into account in sentencing.

33.Should there be information which shows that the drug-manufacturing act is a one-off rather than a continuous act, a starting point slightly higher than the sentence for “trafficking” in the same quantity of “drugs” may be considered appropriate. However, this Court agrees with the approach adopted in Wong Chun Ping (supra) and reiterates that the starting point for “drug-manufacturing” offences should not be less than 10 years’ imprisonment unless the act of drug-manufacturing was just nominal, for instance, only a one-off mixing and diluting of a small quantity of drugs without involving any sophisticated paraphernalia or a large amount of chemicals as raw materials.

34.If the drug-manufacturing act is a continuous act spanning a period of time, and the drug-manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for drug-manufacturing as well as a not insignificant quantity of high-standard drug-manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.

35.This Court cannot ignore the fact that the purpose of setting up a large-scale and productive drug-manufacturing workshop cannot simply be for manufacturing a small quantity of drugs just once. Over a long period of operation, the quantity of drugs that these drug-manufacturing workshops can produce must be extremely large and certainly would far exceed the quantity of drugs seized on the spot at the workshops. The sentence must therefore reflect the seriousness of these offences. Even if the quantity of drugs seized on the spot is not significant, the sentence for “drug-manufacturing” offences must be substantially higher than that for “trafficking” in the same amount of “drugs”.

36.When it comes to a large-scale, productive and long-running drug-manufacturing workshop, where the defendant plays an active and important role, and where an exceptionally large amount of drugs is seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence.

37.This case concerns two drug-manufacturing workshops at different locations where a large quantity of drug-manufacturing paraphernalia and chemicals used in manufacturing “crack cocaine” were found. Besides, the applicant admitted that he had been manufacturing dangerous drugs for one year at the two locations involved in the case. It is difficult to estimate the total quantity of cocaine successfully manufactured by the applicant during that year, but the total quantity must have been far more than the nearly 3 kilograms of cocaine seized by the police on the material day. Furthermore, according to the sentencing guideline in HKSAR v Abdallah [2009] 2 HKLRD 437, the starting point could already be up to 25 years even if the offence to which an applicant pleaded guilty was one of “trafficking” in about 3 kilograms of cocaine. The applicant’s “drug-manufacturing” offences should result in a starting point well over 25 years.

38.The Court cannot ignore that the applicant played a leading role in the drug-manufacturing process. Not only did he rent the two drug-manufacturing workshops at different locations, but he also obtained the cocaine in person and processed it before selling and delivering the finished products to the buyers.

39.Mr. Tze complained that the trial judge had erroneously referred to the drugs in question as “crack cocaine” and passed the sentence on the basis of the market value of “crack cocaine”. This Court disagrees with the Mr. Tze’s point of view.

40.The trial judge merely indicated what the market value of the drugs would have been had they been made into “crack cocaine” according to the facts admitted by the applicant. In sentencing, the trial judge merely pointed out the quantity of drugs seized by the police, i.e. about 3 kilograms of cocaine, and the appropriate starting point for “trafficking” in that amount of cocaine.

41.Moreover, as Ms. Irene Fan, Acting Senior Assistant Director of Public Prosecutions for the Respondent rightly pointed out, the process of manufacturing “crack cocaine” is simple and fast, requiring only the mixing of cocaine with baking powder and water, and heating the mixture for 15 minutes. The process is then completed after cooling. Information shows that offenders are able to manufacture “crack cocaine” multiple times within the space of two and a half hours.

42.Mr. Tze’s complaint that the trial judge erred in taking the market value of “crack cocaine” as basis of sentencing was unfounded.

43.This Court however agrees that no matter how serious the offence is, there should nevertheless be an upper limit in terms of sentencing, and this upper limit should only be imposed on the most serious category of the same offence.

44.Although the maximum sentence for “drug-manufacturing” is life imprisonment, a sentence of life imprisonment is extremely destructive and should be avoided wherever possible. Unless there are legal provisions stipulating that a life sentence is compulsory as in the offence of murder, the court rarely sentences a defendant to life imprisonment, and unless the offence is particularly serious, the criteria for a life sentence set down in R v Hodgson (1968) 52 Cr App R 113 are not easily established.

45.Of course, this case does not involve a sentence of life imprisonment, but it is the experience of this Court that in cases involving drugs, be it “drug-trafficking” or “drug-manufacturing”, and no matter how serious the case may be, the starting point rarely exceeds 40 years’ imprisonment.

46.At the request of the Court, Ms. Fan conducted further research and concluded that in sentences of “drug-trafficking” cases, even if the quantity of drugs involved was massive, the starting point never exceeded 35 years.

47.In R v Ng Muk-kam (CACC 685/1993) where the defendant was convicted of trafficking in 306 kilograms of morphine salt, the Court of Appeal commuted his life sentence to imprisonment for 35 years as the defendant was not the mastermind in the case, and his culpability was not of the most serious category. In HKSAR v Lee Ming-ho (HCCC 367/2016), the defendant together with other people trafficked in 34.232 kilograms of dangerous drug “Ice”. The applicant was found guilty and sentenced to 37 years’ imprisonment. In addition to the basic sentence of 33 years’ imprisonment, the court increased the sentence to one of 37 years due to its international element and the significant role played by the defendant. (Note: The application for leave to appeal against conviction and sentence in the above case (CACC 130/2019) has yet to be dealt with by the Court of Appeal.) In HKSAR v Heric Rivas and others (HCCC 191/2012), six defendants of foreign nationals were involved who came to Hong Kong to take part in the crime. The case concerned trafficking in 422.5 kilograms of cocaine. The trial judge adopted a basic starting point of 35 years which was then enhanced to 37 years due to the international element involved in the case, and the sentence for one of the defendants was further enhanced to 38 years due to the important role he played.

48.The total term of 27 years imposed on the applicant after his guilty plea is equivalent to a starting point of over 40 years. Should that starting point be adopted in this case, there would be little or no room left for the court to deal with sentencing in “drug-manufacturing” cases that are more serious than the present one.

49.Accordingly, this Court is of the view that the starting point of over 40 years adopted by the trial judge was manifestly excessive and should be adjusted downwards.

50.This Court holds the view that the combined starting point of 34 years for Charge 2 and Charge 4 is sufficient to reflect the seriousness of the applicant’s “drug-manufacturing” offences. As the applicant pleaded guilty to the charges, the total sentence for the two charges should be 22 years and 8 months.

51.Leave is granted to the applicant to appeal against the sentences on Charge 2 and Charge 4, and the sentences on the two charges are reduced to 22 years and 8 months and 20 years respectively.

52.Mr. Tze pointed out that Charge 1 also involved cocaine and stressed that the cocaine involved in the charge must also have originated from the drugs manufactured by the applicant. Therefore, Mr. Tze was of the view that the sentence for Charge 1 should also be served concurrently with the sentences for the remaining charges.

53.Charge 1 is of a different nature than the other charges. The facts showed that the applicant was going to sell the drugs after manufacturing them, and it was extremely likely that at the time of his arrest the applicant was delivering drugs to the buyer according to the sales arrangement. It was evident that the applicant had played different roles in the matter, thereby enhancing the gravity of the applicant’s criminal acts.

54.Furthermore, the drugs involved in Charge 3 were “Ice”, different from the cocaine referred to in the remaining charges. The trial judge has already shown leniency towards the applicant by ordering the sentence of 1 year and 4 months for Charge 3 to be served concurrently with the sentence of the other charges.

55.Overall, it was appropriate for the trial judge to order 1 year and 8 months out of the 9-year sentence for Charge 1 to be served consecutively to the remaining charges. It did not constitute unfairness to the applicant. This Court considers that the combined sentence of 22 years and 8 months for Charge 2 and Charge 4, plus the 1 year and 8 months out of the 9-year sentence for Charge 1, which make a total sentence of 24 years and 4 months (equivalent to a starting point of 36 years and 6 months), is appropriate.

56.This Court allows the applicant’s appeal and reduces the sentences for Charge 2 and Charge 4 to 22 years and 8 months and 20 years respectively. This Court orders that the sentences for Charges 2 to 4 be served concurrently, but 1 year and 8 months out of the nine-year sentence for Charge 1 be served consecutively, arriving at a total term of 24 years and 4 months.

57.The total term the applicant is required to serve is therefore adjusted downwards from 27 years to 24 years and 4 months.

Ms. Irene Fan, Senior Assistant Director of Public Prosecution (Acting), of the Department of Justice, for the respondent

Mr. James Tze, assigned by the Director of Legal Aid, for the applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.