HKSAR v. Yeung Ka Chun, Gary

CACC 500/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 500 OF 2006

(ON APPEAL FROM HCCC NO. 194 OF 2006)

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BETWEEN

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Before : Hon Stock JA and McMahon J in Court

Date of Hearing : 11 January 2008

Date of Judgment : 11 January 2008

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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):

1.In Secretary for Justice & Anor v Hii Siew Cheng & Anor [2008] 3 HKC 323 the Court of Appeal set new guidelines for sentences in cases of trafficking in ketamine and the drug commonly known as ecstasy.  In respect of trafficking in ketamine the common, though perhaps not universal, sentencing practice prior to that decision was to apply the same tariff or guidelines as had been set in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 for the drug ecstasy.  The judgment of the Court in Hii Siew Cheng made clear, at para 100, that the guidelines were not to have retrospective effect; in other words, that they would apply only to offences committed after that judgment.  The approach of the Court of Appeal prior to the recent decision in Hii Siew Cheng was to proceed on the assumption that the same tariff was applied: see HKSAR v Leung Chun Fung [2003] 2 HKLRD 282; HKSAR v Mok Yiu Kau [2007] 4 HKC 586; and HKSAR v Yung Ka Kin CACC 240 of 2007 (9 January 2008, unreported).

2.This applicant was sentenced on 1 December 2006 to a term of ten years’ imprisonment by Deputy Judge Wright (as he then was) in the High Court.  The applicant had pleaded guilty to an offence of trafficking in dangerous drugs on 6 July 2006 at the Customs Arrival Hall, Lok Ma Chau Control Point, namely, 2,182.19 grammes of a powder containing 1,861.88 grammes of ketamine and 298 tablets containing 44.03 grammes of ecstasy.  He first pleaded guilty before a magistrate and was sent to the High Court for sentence.  He now seeks leave to appeal against sentence.

3.The brief facts were that he was intercepted at the control point and searched and these drugs were found upon him.  He said that he had been paid by someone to bring them into Hong Kong from Shenzhen.  The retail value of the drugs seized was HK$361,983. 

4.At the date of the offence, the applicant was aged 30 years.  He was not a person of previous good character.  In 2001, he had been fined $3,000 for possession of dangerous drugs.

5.The sentencing judge reviewed the history of sentencing for trafficking in ketamine and particularly the evidence that had been placed before the Court of First Instance in Hii Siew Cheng, and he took the view that that evidence established that there were compelling reasons for treating ketamine more seriously than it had been, a view subsequently vindicated by the decision of the Court of Appeal in June 2008.  He said that were he to apply the Lee Tak Kwan guidelines and treat ketamine for sentencing purposes as of equivalent gravity to ecstasy, he would have taken a starting point in the order of 12 years’ imprisonment.  Instead, because of the view he had formed, following a detailed analysis of the evidence relating to the two drugs, he adopted a starting point of 15 years’ imprisonment, treating the 44 grammes for the drug ecstasy as making no material difference.

6.In line with MOK Yiu Kau and Yung Ka Kin, we are satisfied that this applicant must benefit from the principle that the sentencing approach that ought to have been adopted was one that accorded with the general practice prevailing at the time of the commission of that offence and with the guidelines then established, even though it would appear from the learned judge’s remarks that the practice might not have been as universal as we have hitherto assumed.

7.The respondent has, somewhat to our surprise, sought to uphold the starting point of 15 years’ imprisonment, not by suggesting that the previous practice did not exist or that it should not be followed in this case, but that that starting point is consistent with the guidelines for ecstasy in Lee Tak Kwan.  We fail to see how that can possibly be so.

8.We are prepared to take the same starting point as the judge suggested that he would have taken had it been an ecstasy case, namely, 12 years’ imprisonment which, we believe, was appropriate given the aggravating feature that this was a case of importation of drugs.  Given the plea of guilty, the sentence should be one of eight years’ imprisonment.

9.Accordingly, we grant the applicant leave to appeal against sentence and, treating the hearing of the application as the appeal, we allow the appeal, set aside the sentence of ten years’ imprisonment and substitute therefore a sentence of eight years’ imprisonment.

Mr Ng Man-sang, Alan, instructed by M/s Cheng, Wong, Lam & Partners, assigned by DLA for the Applicant

Ms Winsome Chan, SPP, of the Department of Justice for Respondent