HKSAR v. Ho Chi Shing

CACC 216/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 216 OF 2008 

(ON APPEAL FROM DCCC 69 of 2008) 

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Before: Hon Stuart-Moore VP, Yeung JA and Hartmann JA in Court

Date of Hearing:   20 February 2009

Date of Judgment:  20 February 2009

Date of Reasons for Judgment:  26 February 2009

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

The Facts

1.On 5 December 2007 at about 10 a.m., the applicant (Ho Chi-shing) stopped his private car on the slow lane outside No 44 Gillies Avenue South, Hung Hom with its headlights on. The applicant then fell asleep.

2.Two patrolling police officers found the applicant’s behaviour suspicious and woke him up. The applicant appeared nervous and the police officers searched him. A small black bag, found in the applicant’s left jacket pocket, contained a total of 19 small transparent plastic bags of powder containing cocaine.

3.A further search of the applicant’s private car resulted in the seizure of other plastic bags of powder containing cocaine or ketamine. There were a total of 20 packets of cocaine powder and 2 packets of ketamine powder.

4.The total weight of the 20 packets of cocaine was 7.79 grammes of a powder containing 5.47 grammes of cocaine. The total weight of the 2 packets of ketamine was 28.28 grammes of a powder containing 24.03 grammes of ketamine.

5.The applicant had on his person, HK$32,024, RMB$100 and two mobile phones.

6.The street value of the cocaine was HK$4,650 to HK$6,325 and that of the ketamine powder was HK$3,971.

7.On 3 June 2008, the applicant appeared before Deputy Judge Woo in the District Court and pleaded guilty to the charge of trafficking in the cocaine and ketamine seized by the police officers on 5 December 2007.

8.The judge, referring to R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, took the view that the starting point for the cocaine trafficking “should not be less than three years” and that the starting point for the ketamine trafficking “should not be more than two years”.

9.The judge clearly was of the view that those starting points were appropriate for the quantities of cocaine and ketamine in question. The judge then reduced the combined starting points of 5 years by 6 months to 4 ½ years’ imprisonment. The judge further reduced the sentence to 3 years on account of the applicant’s guilty plea

10.The applicant sought leave to appeal against sentence. At the end of the hearing, we dismissed the application and these are the reasons.

Grounds of Appeal

11.Mr McGowan, counsel for the applicant, submitted that the total starting point of 4 ½ years was manifestly excessive and that adopting a “combined” approach, a more appropriate starting point should be 4 years.

12.Mr McGowan emphasized that the applicant did not have any previous conviction for drug related offence and therefore deserved a more lenient sentence.

Discussion

13.A defendant, who trafficks in more than one kind of dangerous drugs, can be sentenced on the “combined” approach or the “individual” approach. (See generally the judgment in HKSAR v Chan Ho-wai, unreported CACC 129/2008)

14.In the “combined” approach, adopted in HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42, HKSAR v Wong Kam Wo [2001] 2 HKLRD 290, and HKSAR v Cheng Kwok Leung [2003] 3 HKLRD 542, the most serious drug provides the starting point of sentence, which can then be adjusted upwards to take into account the quantity of the less serious drug.

15.The “individual” approach, adopted in HKSAR v Lai Kwok Hung (unreported), CACC 564/2002 and HKSAR v Cheng Yat Ming (unreported), CACC 455/2006, involves a separate starting point for each of the component drugs and the starting points will then be combined and adjusted to form an overall starting point.

16.Whether to adopt the “combined” or the “individual” approach depends on the circumstances of a particular case and it is a matter of discretion for the sentencing judge. Whatever approach is adopted, the important consideration is the totality of the overall starting point.

17.The applicant trafficked in substantial quantities of both cocaine and ketamine. The drugs were not mixed, but in separate and distinct packages. The judge was entitled to adopt the “individual” approach by identifying separate starting points for trafficking in the cocaine and ketamine, and then adopting an overall starting point. (See the judgment in HKSAR v Cheng Yat Ming, supra)

18.According to the Lau Tak Ming tariffs, the starting point for trafficking up to 10 grammes of narcotic (including cocaine) is 2 to 5 years’ imprisonment.

19.The quantity of 24.03 grammes of ketamine is less than a gramme from band 2 of the Lee Tak Kwan tariffs, which calls for a starting point of 2 to 4 years’ imprisonment.  It should be noted, however, that the Lee Tak Kwan tariffs have been substantially adjusted upward since the judgment was pronounced in SJ v Hii Siew Cheng [2009] 1 HKLRD 1.

20.In all the circumstances, we were not persuaded that there was any justifiable complaint against the separate starting points of 3 years and 2 years.

21.The judge had in effect added the two starting points together and then reduced the combined starting point by 6 months, resulting in an overall starting point of 4 ½ years’ imprisonment.

22.Such an overall starting point, despite the absence of any drug offence in the applicant’s four previous convictions, including offences of dishonesty and violence, cannot be regarded as manifestly excessive.

23.The final sentence of 3 years’ imprisonment is a proper sentence, and the application for leave to appeal against sentence was therefore dismissed.

Mr William Tam, SADPP of the Department of Justice for the Respondent.

Mr James H M McGowan instructed by Messrs George Chan & Co for the Applicant.