The Queen v. Cheng Yeung
Read the full judgment text of CACC 460/1988 on BabelCite. This Court of Appeal judgment was delivered on 14 April 1989 before A Bon Silke VP, Hunter JA, Penlington JA.
Criminal law – dangerous drugs – possession for the purpose of trafficking contrary to section 7 of the Dangerous Drugs Ordinance (Cap 134) – sentencing tariff – search of room yielding mixtures containing salts and esters of morphine together with Part I poisons under the Pharmacy and Poisons Ordinance (Cap 138) – applicant pleaded guilty in Magistrates' Court and committed to High Court for sentence – whether quantity-based tariff in Chan Chi-Ming v B [1979] HKLR 491 remains appropriate basis for sentencing – whether No 4 heroin should be notionally converted into No 3 heroin for application of the tariff – held, yes, following the approach in Pravit Pramechit v the Queen for heroin base, notional conversion of No 4 to No 3 is preferred to give one scale and a true comparable – whether quantity-based tariff has a practical ceiling – held, a tariff based primarily on quantities runs out at 20 kg, beyond which sensible distinctions based on quantity can no longer be drawn – whether an after-trial tariff for section 7 can practically exceed 20 years – held, no; above any section 7 tariff space must be left for greater penalties appropriate for the trafficker, manufacturer, and importer – whether starting figure of 23-25 years adopted by trial judge was too high and whether insufficient weight was given to applicant's role as a simple warehouseman – held, starting figure was too high and the new '20 kg' cut-off has an element of novelty to the applicant's disadvantage – leave to appeal granted, application treated as hearing of appeal, sentence reduced from 18 years to 14 years as an act of mercy – refined tariff: quantities between 1 kg and 20 kg attract a range of 8 to 20 years with regard to both quantity and the defendant's particular role; quantities above 20 kg attract sentences in the region of 20 years after trial.
Legal issues: Notional conversion of No 4 heroin to No 3 heroin for tariff purposes · Cut-off point X kg for quantity-based sentencing distinctions · Whether 18-year sentence was manifestly excessive
Outcome: Application for leave to appeal allowed and treated as the hearing of the appeal; sentence reduced from 18 years to 14 years imprisonment as an act of mercy.
Cited by 28 cases · Cites 1 case
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CACC000460/1988
Headnote
BETWEEN
--------------------- Coram: A Bon Silke, V.-P., Hunter & Penlington, JJ.A. Date of hearing: 10 March 1989 Date of delivery of I judgment: 14 April 1989 --------------------- J U D G M E N T --------------------- Hunter, J.A. : 1. On 15 May 19 88 a search was conducted of a room occupied by the applicant at No 562A, Nathan Road. Hidden in various places in the room were found :
2. On 10 August 1988 the applicant pleaded guilty in the Magistrates Court to a charge of possession of the dangerous drugs s out in (a) she (b) for the purposes of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance (Cap 134), and further to possession of the said poisons. He was committed to the High Court for sentence. On 9 September 1988 Deputy Judge Daniell imposed a sentence of 18 years imprisonment upon the drugs charge and 2 months imprisonment concurrent on the poisons charge. No issue is taken in relation to the latter sentence, but the applicant now seeks leave to appeal against the former. 3. This application raises the difficult question of the appropriate sentencing, level for possession of very substantial quantities of dangerous drugs for the purposes of trafficking. At the lower end of the quantum scale, the tariff guidelines laic down in Chan Chi-Ming v B [1979] HKLR 491, have gone a long way to achieve their object of bringing about consistency of sentencing and thus fairness between offenders. To a considerable and beneficial extent the courts, the legal profession, and offenders know they stand. 4. At the upper end of any quantities scale choice ceases, and any graph has to level out. As Kempster JA put it in R v Lau Lon Fu [1987] Cr App Fo 773 :
In that case the Court declined to interfere with a 20 years sentence imposed for Possession for unlawful trafficking of "between 60 kg and 70 kg of No 3 heroin worth ... some HK$7m". 5. If choice ceases at 60 kg, it exists below that figure and down to 1 kg. This is the area of difficulty and ambiguity, where, the upper scale in Chan Chi-ming : "very substantial (about 1,000 grammes). From 8 to 12 years save in cases of an unusually serious nature" has Proved to he much less precise, and where courts have had difficulty in plotting the curve of the graph. This application illustrates some of the problems. 6. The first is quantities. The basic general considerations expressed in Chan Chi-ming were :
Although it is in any event difficult to see why a trafficker who reduces the percentage of salts of esters of morphine in his mixture for his own profit can claim any credit upon the basis that he is less of a social evil than the vendor of a stronger mix, the Court has consistently applied the second general consideration and rejected suggestions that weaker mixes in any way went in mitigation. 7. Instructive statistics for 1979-1988 were put before the Court by the Crown, ultimately without objection from the applicant, so long as the Court did not seek to use them to alter any tariff to his particular disadvantage. These statistics show :-
8. These statistics show material changes between the situation existing in 1979 and that today. The overall picture is one of deterioration the sentencing levels have had little apparent deterrent effect. The problems arising from the introduction of No 4 heroin in increasing quantities did not fall for consideration as they did not exist. 9. Evidence of value was put before the sentencing judge in the for of statement from Inspector Lau Yat line. He said that the 42 bags containing 11,456 grammes of mixture, which we shall call as he did the No 3 heroin, would yield retail, at May 1988 prices, some HK$565,720. In relation to the 5 bags containing 788.22 grammes of a mixture of what we shall call No 4 heroin, he said that if this was converted into No 3 heroin it would produce 12,265 grammes, and they, at May prices, would be worth some HK$605,645. He spoke solely of values in Hong Kong and made no suggestion as to the retail value of No 4 heroin in say USA. 10. The first question here is what are the relevant quantities : at what point does this case enter the scale? For the applicant Mr Plowman submits that the Court must take the total of the two mixtures figures of 12,243.7 g (ie 11,456.48 plus 788.22) and the value of a little over HK$0 565m to allow for the No 4 heroin quantity but at the No 3 heroin price it is wrong he submits to do any notional conversion of her No 4 heroin into to 3 heroin and thus arrive at a total of 23,721 g (ie 11,456 plus 12,265) and a total value of HK$1.17m. He submitted first that this would run contrary to the Court's persistent refusal to consider the purity of the mixture. If the Court has declined to reduce the tariff for low purity it cannot consistently, he argued, increase it for higher purity. Secondly he said that not all the evidential requirements suggested by McMullin VP in Suvit Utthayanwatana v the Queen [1982] HKLR 323,325 were satisfied. Thus, he asserted, it was notorious that No 4 heroin was sold in the USA. 11. Further although he strongly criticised the judge's ultimate sentence, he submitted that his initial approach was correct. The judge referred simply to a vast quantity of drug and to a street value of a million dollars". This submitted Mr Plowman, shows that the judge had done no notional conversion, had taken the quantity for which he was contending, and a value attrihutable to such quantity. 12. We cannot accept Mr Plowman's submission on quantities. IN Chan Chi-ming this Court was not pronouncing rules of law, but guidelines to fairness and consistency directed at the drug problem in 1979. It was then dominated by the supply of No 3 heroin. A tariff based upon quantities produces no consistency unless it is faced upon true comparables. The Chan Chi-ming tariff was based upon No 3 heroin. The statistics show the decline in the purity of No 3 heroin since that date. But it is still No 3 heroin and there clearly remains no good grounds for lowering sentences or the tariff on that account. 13. No 4 heroin on the other hand is suite a different substance. It is no more realistic to value No 4 heroin by reference to the retail price of No 3 it is to compare quantities of the one with the other. One would literally to comparing chalk with cheese. Unless a realistic way of comparing the two substance can be devised there can be no fairness or consistency between possessors of either. 14. A similar problem faced the Court after 1979 when, as these statistics show, there was a very substantial increase in the quantity of heroin base that was seized, ie of mixtures containing esters of morphine as opposed to salts of, esters of morphine In Pravit Pramechit v the Queen [1982] Or App No 665 (unreported), it was recognised that part of the evidential requirements in Suvit were too wide, and that it sufficed if it could to shown, by evidence or admission, "that the seized mixture is capable of being converted into a substance of greater volume" per Silke JA (as he then was). The Court then pointed out that when it came to apply the guidelines in Chan Chi Ming :
15. The considerations there held to apply to the conversion, for the application of the tariff of the esters of morphine to salts of esters of morphine, apply equally to the conversion of No 4 heroin. Both alternatives are open. We prefer a notional conversion of No 4 to No 3, because however unlikely an event in practice, one scale is preferable to two, and it produces a simple result and a true comparable. We recognise an element of fiction in attributing No 3 retail values to the conversion figure. But if, as we have been told, the real street market is in the USA then the true street value would be its US value. This for many reasons is likely to be very much higher even than the equivalent figure in Hong Kong. So this "value" by "conversion" could be the fairest, and perhaps the only way of arriving, at a Hong Kong value truly comparable to the Hong Kong value for No 3 heroin. 16. For these reasons we conclude that the trial judge should have started from the premise that for the purpose of sentencing and the application of the tariff the applicant was in possession of the equivalent of 23.7 kg of a mixture worth some HK$1.1m. 17. Mr Plowman's next two submissions were mare formidable and can conveniently be taken together. In sentencing the Deputy Judge said that after trial the applicant could have expected "a sentence of something like between 23 and 25 years". He discounted this to 18 years by reason of the applicant's plea of guilty at the earliest possible moment, his cooperation with the police, and the other mitigating factors put before him. Of these the main factor was that it was urged that the applicant had only acted as a warehouseman for the drugs for small reward on behalf of a particular trafficker. Mr Plowman advanced two criticisms. First he said that the starting figure was much too high; second that insufficient weight was given to the applicant's role as a "simple" warehouseman. 18. In support of his attack of the starting figure, Mr Plowman referred us to a number of decisions. These, and others, reveal no consistent pattern and considerable discrepancies. A few examples suffice - in each case the possession was for the purposes of unlawful trafficking :
It is apparent when the Chan Chi Ming tariff has teen extended into the range of larger quantities there has been more variation than consistency. The problem is highlighted by the multi-defendant cases eg R v Chui Lai Ying and R v Chan Wai Shing. The sentence of 13 years on the 10th defendant in the former case arose from an attempt to deal fairly between the various defendants before the Court, and to distinguish between his role and that of the ringleaders. But it is difficult to resist the conclusion that a man charged alone with possession for unlawful trafficking of the same quantity of heroin base, without the benefit of discount from his co-defendants, would have received a heavier sentence. True fairness must, mean consistency between all offenders whether they stand in the dock alone or with others. It has not been achieved. 19. The problem we think car be summarised as follows.
20. We cannot avoid putting a figure upon 'X', and we have given anxious consideration as to what it should be. The dominant sentencing principle behind the present tariff is deterrence, and in this respect it would seen to have had little noticeable effect. At the lower end, the tariff recognises, as is the fact, the immense harm that can be done by comparatively small quantities of dangerous drugs. The tariff is based upon a correlation between quantum and harm. Fairness to those in possession of less than 1 kg suggests that those in possession of more, in the range simply of 1 kg to 10 kg, should to dealt with not necessarily proportionately, but at least not significantly more leniently. Put an other way the graph may start to curve at I kg, but the curve should only be gradual. It was considerations such as these we think that persuaded the Court to arrive at starting figures of 12 years in Attorney General v Hang Mau Fai, and of 14 and 15 years respectively in R v Wong Kin Wan, and R v Yeung Chun Min. Indeed it is not easy to criticise this approach which might suggest that 'X' equals 10 kg. 21. On one view we accept that very considerable harm can be occasioned by a quantity of 10 kg. Conversely, in relation to a section 7 possessor, a point is reached where sensible distinctions based upon quantity can no longer be drawn. A point is reached which invites a severe penalty, and at which the possessor cannot complain if someone yet more deeply involved suffers no more. Balancing these considerations as best we can we assess 'X' at 20 kg, and regard that as the cut off figure. 22. If these considerations were applied to this applicant, he, as the warehouseman of the equivalent of 23.7 kg, would face the tariff maximum subject only to his plea of guilty. Having regard to the weight of evidence against him, it might then not have been easy to conclude that his sentence was manifestly excessive. But we are conscious that there is an element of novelty in our view on quantities, and that we may be breaking new ground to his disadvantage perhaps influenced by the statistics. To make all necessary allowance for this, and as an act of mercy, we allow the application, treat it as the hearing of the appeal, and reduce his sentence to one of 14 years imprisonment. Representation: Mr I G Cross, Senior Assistant Crown Prosecutor, Cheung Wai Sun, Senior Crown Counsel for Crown/Respondent Mr Gary Plowman (M/s Tang, Wong g & Cheung) for Applicant |
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