HKSAR v. Cheung Po Cho Tommy

CACC 233/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 233 OF 2005 

(ON APPEAL FROM DCCC 11 of 2005)

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BETWEEN

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Before: Yeung JA and Tong J in Court

Date of Hearing: 19 October 2005  

Date of Judgment:  19 October 2005 

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 J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.On 20 August 2005, the applicant – Cheung Po Choi, Tommy was intercepted by two police officers outside 5/F, No. 12 Boundary Street.

2.The police officers searched the applicant and found two plastic bags on his person, one containing a 6.13-gramme mixture with 6.02 grammes of ice and one containing a 3.99-gramme mixture with 2.21 grammes of heroin.

3.The applicant claimed to be a courier for a reward of $300.

4.The applicant was then charged with trafficking in those drugs.

5.On 10 May 2005, the applicant pleaded guilty to the charge before Judge Chua in the District Court and was sentenced to four years and four months’ imprisonment.

6.The judge adopted a starting point of six years and six months and reduced it by one-third on account of the guilty plea.

7.The applicant now seeks leave to appeal against sentence.

8.Mr Marray, on behalf of the applicant, argues that the starting point of six years and six months and hence the final sentence of four years and four months are too high. He suggests that when the charge involved two types of drugs, the judge should not have added up the sentences for each type. He takes the view that a more appropriate starting point is five years and six months.

9.The often-cited case – AG v Ching Kwok-hung [1991] HKLR 125 laid down the following tariffs for unlawful trafficking in ‘ice’ – up 10 grammes: 3-7 years and between 10 and 70 grammes: 7-10 years.

10.The reference to “up to 12 grammes” in the 1^st band in the report is clearly a typographical error as the 2^nd band starts at 10 grammes (See HKSAR v Capitania Edwin F., CACC 28 of 2004 and HKSAR v So Shuk Yee CACC 460 of 2004).

11.The appropriate starting point for trafficking in 6.02 grammes of ‘ice’ alone certainly would not be less than 5 years.

12.According to Lau Tak Ming [1990] 2 HKLR 570, trafficking in up to 10 grammes of heroin attracts a starting point of 2 to 5 years’ imprisonment. For 2.21 grammes of heroin, the proper starting point would be at least 2 years.

13.If one were to add up the two sentences, the starting point for trafficking in 6.02 grammes of “ice” and 2.21 grammes of heroin would at least be 7 years’ imprisonment.

14.Clearly the judge did not add up the sentences for the two types of drugs as she only adopted a starting point of 6 years and 6 months.

15.Sentencing on a drug-trafficking offence involving more than one type of drug is not easy. There is suggestion that the appropriate sentence for the more serious drug should be adopted with an upward adjustment for the presence of other drug, the extent of which depends on its nature and potency (See HKSAR v Yip Wai Yin & Another CACC 80 of 2003).

16.Yip Wai Yin (supra) concerns cocktail drugs whereas we are concerned with two types of drugs in different packages.

17.In Yip Pik Kwai v HKSAR [1999] 3 HKLRD 42, the court was also dealing with a drug trafficking offence involving both ‘ice’ and heroin in separate packages. Mayo JA observed at p. 43:

“One point does arise on this application which does require consideration. In the event of separate parcels of dangerous drugs being found by the authorities it is normally the practice to sentence a defendant on the total quantity of dangerous drugs rather than on the individual smaller quantities. This can be a matter of significance as the sentencing guidelines do not increase at a constant rate.

We do not see any reason why a different approach should be adopted simply because the two separate parcels of dangerous drugs are of a different nature namely ‘ice’ and heroin.”

18.The suggestion appears to be that the sentence should reflect the total quantity as if it were just one type of drug.

19.This, in our view, is a lenient approach. The presence of more than one type of drug in a drug trafficking offence must itself be an aggravating factor.

20.The total quantity of ‘ice’ and heroin is 8.23 grammes. It should not be dealt with as if it were all heroin as the major part is ‘ice’. If the 8.23 grammes were all ‘ice’, the proper starting point would not be much less than 7 years.

21.The applicant had 16 previous convictions, many of which were drug-related. He was convicted of trafficking in a dangerous drug in 2002.

22.A bad record is not an aggravating factor, but it also means that the applicant is not entitled to any leniency for having a good record.

23.We have considered the points ably made by Mr Marray, we are not persuaded that the starting point adopted by the judge is wrong.

24.The sentence of 4 years and 4 months for trafficking in 6.02 grammes of ‘ice’ and 2.21 grammes of heroin is not a lenient sentence, but neither is it manifestly excessive to justify interference by this court.

25.The application for leave to appeal against sentence is therefore refused.

Mr David C Leung, SGC of the Department of Justice for the Respondent.

Mr John Marray instructed by Messrs Haldanes for the Applicant.