Read the full judgment text of CAAR 000007/2006 on BabelCite. This Court of Appeal judgment was delivered on 6 June 2008 before Ma CJHC, Stuart-Moore VP, Stock JA.
Criminal law – dangerous drugs – trafficking in ketamine and ecstasy – sentencing guidelines – review of sentence – cross-appeal – psychotropic drugs of abuse – drug trafficking – Cocktail Drugs (ketamine and ice mixture) – Sentencing Methodology – Application for leave to appeal against conviction – appeal against sentence – Drug Abuser's mental condition – guidelines updated – retrospectivity – section 81A and section 81B of the Criminal Procedure Ordinance (Cap. 221) – section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134) – Whether the Lee Tak-kwan ecstasy guidelines should be revised – Whether separate ketamine guidelines should be formulated – Whether the judge erred in applying ecstasy guidelines to a ketamine trafficker – Whether the additional 2 years for ecstasy in Wong's case was an appropriate adjustment or a separate sentence – Whether the conviction was safe – Whether the medical condition of an offender warrants a discount – Whether the new guidelines have retrospective effect – The court held that both ketamine and ecstasy are addictive in the sense that they give rise to psychological dependence and are toxic, distinguishing Lee Tak-kwan [1998] 2 HKC 371 – The court held that the existing Lee Tak-kwan guidelines should be updated and that unified guidelines for both drugs should be formulated since the weight of narcotic content per dose is comparable – New tariffs formulated with seven bands from within sentencer's discretion (up to 1 g) to 14 years and upwards (over 1,000 g) – The court held that under the combined approach in HKSAR v Yip Wai-yin, a meaningful adjustment for the ecstasy component in a cocktail of ice and ecstasy should be 18 months rather than 2 years – The court held that the conviction was safe based on overwhelming circumstantial evidence – The court held that the new guidelines are not retrospective and that Hii and Wong are not adversely affected – In CAAR 7/2006, application for review allowed but no alteration to Hii's sentence under s.81B – In CACC 126/2007, application for leave to appeal conviction dismissed; appeal against sentence allowed with sentence reduced from 5.5 years to 5 years' imprisonment – Sentencing guidance also given on 'social trafficking' and non-custodial sentences for traffickers in these drugs.
Legal issues: Whether the Lee Tak-kwan ecstasy guidelines should be revised and whether separate guidelines for ketamine should be issued · Whether the judge erred in sentencing Hii by applying the Lee Tak-kwan ecstasy guidelines to a ketamine trafficker · Appropriate methodology for sentencing cocktail drug trafficking under Yip Wai-yin · Whether Wong's application for leave to appeal conviction should be granted
Outcome: In CAAR 7/2006, the application for review of sentence succeeds to the extent that new guidelines are issued, but no alteration is made to Hii's sentence. In CACC 126/2007, the application for leave to appeal conviction is dismissed; the application regarding sentence is allowed and Wong's sentence is reduced from 5.5 years to 5 years' imprisonment.
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