HKSAR v. Siu Wai Kam

CACC000629/2002

CACC 629/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 629 OF 2002

(ON APPEAL FROM HCCC 334 of 2002)

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Coram: Hon Stock JA and Ma JA in Court

Date of Hearing: 11 July 2003

Date of Judgment: 11 July 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1This is an application for leave to appeal against sentence. The applicant pleaded guilty before a magistrate on two charges of trafficking in dangerous drugs and the case was remitted to the High Court for sentence. On 4 December 2002 he was sentenced by Mr Recorder Lok to a term of twenty years and eight months' imprisonment.

The facts

2The facts are these. On 14 June 2002 police intercepted a vehicle in Hoi Shing Road. The applicant was the driver and sole occupant. A search of the vehicle resulted in the seizure of two packets subsequently analysed to contain two kilograms of a powder containing 1.72 kg ketamine, which were retrieved from the front passenger seat; and two plastic bags, containing substances later analysed to consist of 53.41 grams of a powder containing 33.45 grams of cocaine and 0.96 grams cannabis, were found inside the glove compartment.

3The applicant was arrested and he said that since he was caught red-handed, he had nothing to say. He said that it was 'K-chai' and he had taken it from a quantity drugs which was at his home; and that he had eight other packets of the drugs at his residence in Tin Shui Wai. He was then taken there, and the police used keys seized from him in order to gain entry. Once there, he led the officers into the master bedroom and pointed at a box and bag on the floor and told the officers that they contained the drugs. The box contained six packets and one plastic bag housing substances later analysed to consist of 5.778 kg of a powder containing 4.96 kg of ketamine. The other plastic bag on the floor contained a substance later analysed to consist of 0.98 kg of a powder containing 0.38 kg of ketamine.

4The applicant was arrested. He was subsequently interviewed, and he said that four days earlier his friend, whom he called "Sap Yee", gave him a box containing ten blocks of ketamine and told him to keep it at his home. He, the applicant, was told that the box contained ketamine and he was to wait for telephone instructions from Sap Yee. Sap Yee had telephoned him on 14 June and instructed him to take two blocks of ketamine to Tsuen Wan. Whilst on his way there he was stopped by the police. He said that he had expected to receive a reward of $8,000 for each delivery.

5There were two charges. The first was for trafficking in the drugs found in the vehicle, namely, two kilograms of a powder containing 1.72 kg of ketamine; and 53.41 grams of a powder containing 33.45 grams of cocaine and 0.96 grams of cannabis. The second charge covered the drugs found in the applicant's home; they were 6.75 kg of a powder containing 5.34 kg of ketamine; this, too, was a charge of trafficking.

6The applicant is aged 33 years, and has one previous conviction which was for an offence of theft in 1994, which could not have been very serious given the fact that he was fined. The mitigation advanced on his behalf at trial concentrated on the lesser role which he is said to have played a few days before his arrest as a transporter of the drugs from Mai Po to his home, at a stage when he said that he did not know that they were drugs. Nonetheless, he said, he was then told that they were drugs, and he kept them, and he agreed to deliver them, for a reward of only of $8,000. There was no packing or other paraphernalia found at the premises where he lives.

The sentence

7The learned Recorder adopted the following approach. He started with the quantity of cocaine in the vehicle, and said that he took a starting point of six years' imprisonment for that and, given the plea of guilty, he imposed a sentence of four years' imprisonment. He then said that he adopted a starting point of ten years' imprisonment for the ketamine, and with a one-third discount, he sentenced the applicant to a term of six and a half years for the ketamine on charge 1. Then he added the two together and arrived at a sentence of ten years and six months' imprisonment for that charge.

8In respect of charge 2, he took a starting point of twenty-eight years, reduced that by one-third for the plea of guilty to eighteen years and eight months, and then by a further two years on the basis that the applicant had told the police that there were more drugs in his premises. The Recorder thereby arrived at a total of sixteen years and eight months upon the second charge.

9He then ordered that four years of the term imposed in respect of charge 1 was to run consecutively to the term imposed on charge 2, making a total of twenty years and eight months' imprisonment.

Analysis

10We say at once that that was manifestly excessive. The total sentence imposed presupposes, in effect, a starting point in the order of thirty-one years for all the drugs founds, which is a starting point far greater than would be taken even had all the drugs been cocaine or heroin, which obviously they were not. Similarly, the starting point of twenty eight years for the drugs in respect of charge 2 alone, which was directed at the drug ketamine with no cocaine, was in itself more than would be acceptable had all of the drugs been heroin or cocaine.

11Accordingly, we shall grant the applicant leave to appeal against the sentence imposed on each charge, treat this as the hearing of the appeal, and set aside the sentences imposed by the Recorder. It falls to us now to determine what the appropriate sentences be.

12Whilst we have not been addressed on the qualities and dangerousness of ketamine, and whilst there are not as yet guidelines from this Court to sentencing tariffs for ketamine, it is not suggested by anyone as far as we are aware - certainly not before this Court - that the drug is of the same order in terms of seriousness as is either heroin or cocaine or methamphetamine hydrochloride; which is not to say that trafficking in it is not be viewed seriously.

13The judge took the approach based upon a decision of Mrs Justice Bokhary in HKSAR v Chu Ching-tak, HCCC 164 of 2001, 15 October 2001, unreported, that ketamine should be viewed at least on a par with the drug 'ecstasy'. It is not suggested by the respondent, for the purpose of this appeal, that that approach was incorrect. We need not go into the question of tariffs for ketamine nor whether it is indeed to be viewed more seriously than ecstasy. The point has not been argued before us and we proceed, for the purpose of this case only, on the basis that since the judge treated it as if the same tariff should apply to ketamine as applies to ecstacy - and certainly he did not thereby affront the applicant's interests - and since the respondent does not in this case seek to argue that he was wrong to do so, we shall, in this case, apply the same tariff.

14From HKSAR v Lee Tak Kwan [1998] 2 HKC 371, we see that for a quantity in excess of 800 grams of 'ecstacy' the suggested starting point is eight years or upwards. Obviously for a total, as we have here, of seven kilograms of the drug, the starting point will be considerably in excess of that, although the matter is not one of mathematical progression.

15Mr Madigan for the respondent suggests that we can in this case ignore the amount of cocaine as "having no meaningful role" in the sentence. We do not agree. Cocaine is a very serious drug and the quantity which we have here is hardly some minor, insignificant amount. Indeed Mr Ramanathan for the applicant accepts that that approach is not logical. It makes no sense to ignore the cocaine.

Result

16Looking at the drugs in charge 1 as a whole, we take the view that a proper starting point is one of fifteen years' imprisonment, and we substitute for the sentence imposed on charge 1 a sentence of ten years' imprisonment, which gives credit for the applicant's plea.

17As for the second charge, the appropriate starting point there is also one of fifteen years' imprisonment, and the sentence which we substitute in respect of that charge is one of ten years' imprisonment.

18The question now is that of the appropriate totality. In our judgment, the case as a whole merits an overall starting point in the order of eighteen years' imprisonment; which would suggest a sentence after plea of twelve years. This leaves us with the question of the applicant's assistance to the police in telling them that there were drugs in his premises. We have to say the judge gave a discount in this regard which was over generous. There can be no question but that the police would in any event have searched the applicant's home and found the drugs. Nonetheless it does show a degree of cooperation which goes a little beyond the norm, and we take it into account.

19We shall order that one year of the sentence on charge 2 shall run consecutively to the sentence imposed on charge 1, the remainder to run concurrently, making a total of eleven years' imprisonment.

Representation:

Mr Kumar Ramanathan assigned by DLA for the Applicant

Mr P K Madigan, SGC of the Department of Justice for the Respondent