HKSAR v. Ip Yuet Ho
Read the full judgment text of CACC 455/2007 on BabelCite. This Court of Appeal judgment was delivered on 26 June 2008.
1. On 26 th June 2008, we allowed the applicant’s appeal and reduced his sentence by 4 months. We indicated that we would hand down our written reasons in due course and this we now do.
Cited by 22 cases · Cites 4 cases
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CACC 455/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 455 OF 2007 (ON APPEAL FROM HCCC No. 167 of 2007) ----------------------
---------------------- Before: Hon Stuart-Moore VP, Yeung JA in Court Date of Hearing: 26 June 2008 Date of Judgment: 26 June 2008 Date of Handing Down Reasons for Judgment: 4 July 2008 -------------------------------------- REASONS FOR JUDGMENT -------------------------------------- Hon Yeung JA (giving the reasons for judgment of the Court): Introduction 1.On 26th June 2008, we allowed the applicant’s appeal and reduced his sentence by 4 months. We indicated that we would hand down our written reasons in due course and this we now do. The Facts 2.On 1 December 2006, the applicant, Ip Yuet-ho was intercepted by police officers outside Room 2 Man Wai Building 5/F in Yaumatei (“the premises”) as he was trying to enter it with a set of keys. The applicant was taken into the premises and Lo Chun-tung (“Lo”) was found playing TV games at the sitting room. 3.The applicant and Lo were both searched. The applicant had, in a small plastic bag inside his shoulder bag, 0.4 gram of a solid containing o.31 gram of cocaine, but nothing suspicious was found from Lo. 4.Later, Lam Fung-yee (“Lam”) also entered the premises with keys, claiming to be visiting the applicant. Lam was found to be carrying three plastic bags of 1.4 gram of a crystalline solid containing 1.39 gram of “ice”. 5.A search of the premises produced a large number of manufacturing and packaging paraphernalia with traces of cocaine, including:
6.The total quantity of cocaine seized from the premises is 73.91 grams of a solid containing 50.7 grams of cocaine, and 3.06 grams of a solid containing 3.04 grams of “ice”. The cocaine was worth $66,445 and the “ice” was worth $1,147. 7.The applicant admitted that the dangerous drug found inside the premises belonged to him. He further told the police that he rented the premises in October 2006 after “Ah Wai” promised to supply him with cocaine and to reward him for selling the cocaine to others. 8.The applicant further admitted that he was responsible for breaking the cocaine into power form and then would mix it with water and soda powder before putting the mixture into tubes to heat up. The mixture, after cooling, would be broken into lumps and then put into plastic bags. 9.The aforesaid incident led to an indictment consisting of 5 charges against the applicant, Lo and Lam. The 1st charge of manufacturing a dangerous drug and the 2nd charge of trafficking in a dangerous drug were joint charges against the applicant, Lo and Lam and they related to the dangerous drugs found inside the premises. 10.The 3rd charge of possession of a dangerous drug against the applicant related to the cocaine found in his shoulder bag. The 4th and 5th charges were separately directed at Lam and Lo respectively. 11.The applicant pleaded guilty to the 1st, 2nd and 3rd charges before Deputy High Court Judge Geiser. The Sentence 12.For the 1st and 2nd charges, the judge sentenced the applicant to 8 years and 8 months’ imprisonment, and 6 years’ imprisonment respectively to run concurrently. 13.For the 3rd charge, the judge sentenced the applicant to 4 months’ imprisonment to run consecutively to the sentences on the 1st and 2nd charges. The total sentence on the applicant is 9 years’ imprisonment. 14.The applicant sought leave to appeal against sentence and Mr Frederic Whitehouse represented him. The Grounds 15.Mr Whitehouse submitted that the starting point of 13 years adopted by the judge for the 1st charge was manifestly excessive even though it was one suggested by defence counsel to the judge. He said 11 years should be adopted instead. 16.Mr Whitehouse further submitted that the sentence on the 3rd charge should be wholly concurrent. 17.Mr Whitehouse emphasized that in manufacturing cases, the quantity of drugs is only one factor to be taken into consideration and the other perhaps more important factor is the scale of the operation. Mr Whitehouse submitted that the present case is a low-scale operation, comparable to HKSAR v Wong Ping-kay (CACC 495/2001), which attracted a starting point of 10 years. 18.Mr Whitehouse asserted, in his written argument, “provided that the quantity of drug is not large, the precise amount, in manufacturing cases, is hardly relevant, because the consideration must always be the scale of operation.” 19.Mr Whitehouse further asserted that the amount of the drugs, the subject matter of the 3rd charge, is small and could have been included in the 2nd charge and it would not have made any difference to the sentence. In the circumstances, Mr Whitehouse suggested that it was wrong in principle to impose a consecutive sentence on the 3rd charge. Discussion 20.Dangerous drugs related offences are serious offences and a fortiori if the offence is one of manufacturing dangerous drugs because, unlike a drug trafficking offence when the quantity of dangerous drugs involved is static, the quantity of dangerous drugs seized in a manufacturing case only represents those that has, so far, been manufactured, and has not been disposed of. 21.Roberts CJ observes in R v Wong Chun-ping and Others [1984] HKLR 247 at p 257:
22.In Wong Ping-kay [2002] 3 HKLRD 161, the defendant mixed heroin and caffeine with a blender and then put the mixture in straw containers for sale. The total quantity of heroin seized was 14.88 grams with a retail value of just over $10,000. Under the Lau Tak-ming [1990] 2 HKLR 370 tariff, trafficking in 14.88 grams of heroin would attract a starting point of just over 5 years, yet the Court of Appeal adopted a starting point of 10 years on the basis that it was comparatively a small scale manufacturing operation. 23.The present case involves 50.7 grams of cocaine and 3 grams of “ice” with a retail value of over $60,000. The quantity of the drugs and their mixed nature made it a more serious case that Wong Ping-kay (supra). 24.The quantity of drugs involved is certainly a relevant factor, albeit not the only one in the sentence of drug manufacturing cases (see the judgment of P Chan J (as he then was) in R v Cheung Wai-kwong [1997] 3 HKC 496). 25.The quantity of drugs involved in the present case, not an insignificant quantity and if we may add, indicates that it was a larger operation than what was involved in Wong Ping-kay (supra). 26.The summary of facts admitted by the applicant suggests that he rented the premises in October 2006 for the purpose of manufacturing dangerous drugs and a reasonable inference is that by the time of his arrest, he had been doing it for almost two months. The applicant also admitted that there was a large number of manufacturing and packaging paraphernalia in the premises. 27.The judge was perfectly entitled, on those facts, to conclude: “In the present case, the scale of the operation, whilst not large, does appear to be rather larger than the Wong (Ping- kay) case”. 28.In any event, the process of manufacturing cocaine, as described by the applicant, is a simple process and does not require a large quantity of sophisticated equipment. The pictures taken of the premises indicate that the applicant had employed not less than three burners, a few test tubes and a large number of plastic containers and bags in his manufacturing process. 29.Mr Whitehouse’s submission that the present case was a “low-scale operation” may not be entirely correct. 30.On the facts of the case, we were not persuaded that the 13-year starting point for the 1st charge, adopted by the judge, was manifestly excessive. 31.The applicant carried a small quantity of cocaine (0.31 gram) in his shoulder bag when he returned to the premises in which another larger quantity of cocaine (50.7 grams) was found. The applicant was sentenced to 6 years’ imprisonment for trafficking in that larger quantity of cocaine and a small amount of “ice”. 32.If the small quantity of cocaine found in the applicant’s shoulder bag, possibly for his own consumption, were to be included in the larger quantity found inside the premises to form the subject matter of a drug trafficking charge, it was unlikely that the sentence for the drug trafficking charge would be different. 33.Mr David Leung, for the respondent, had responsibly conceded that a consecutive term of 4 months’ imprisonment for the applicant’s possession of the 0.31 gram of cocaine could not be supported and we agree. 34.If this amount had been part of the cocaine in the trafficking charge, it would have made no difference to the sentence. It could not be right, in our opinion, that because the applicant was going to consume this quantity himself he should now find himself faced with a longer sentence than he would have received if all the cocaine was to be trafficked by him. 35.As a matter of principle, this was an aspect of the application on which leave must be granted. Treating the hearing as the appeal, we quashed the order that the 4-month sentence on the 3rd charge should be served consecutively and, in its place, we ordered that this sentence was to be served concurrently to the sentences on the 1st and 2nd charges. The sentences imposed by the judge will otherwise stand. 36.The appeal succeeded to the extent that the applicant’s total sentence was reduced from 9 years to 8 years and 8 months’ imprisonment.
Mr David Leung, SGC of the Department of Justice for the Respondent. Mr FredericWhitehouse instructed by Messrs Kevin Ng & Co assigned by the Director of Legal Aid for the Applicant. |
Cases cited in this judgment