HKSAR v. Leung Chun Pong

CACC 5/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 5 OF 2009

(ON APPEAL FROM HCCC NO. 256 of 2008)

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Before: Hon Stuart-Moore Ag. CJHC and Wright J

Date of Hearing: 26 May 2009

Date of Judgment: 26 May 2009

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J U D G M E N T

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Hon Wright  J (giving the judgment of the Court):

1.On 20 June 2008, the applicant was observed by police officers to approach a vehicle and place a bag, which he had been carrying, into the luggage compartment. He was intercepted. The luggage compartment of the vehicle was searched. Receptacles containing various narcotics, namely 373.03 grammes of ketamine 68.38 grammes of cocaine and 4.44 grammes of methamphetamine hydrochloride (Ice), were found. The applicant subsequently told the police that he was to deliver the narcotics on behalf of another in return for $1000.00.

2.The applicant pleaded guilty at the time of his committal. He was sentenced on 12 December 2008 by Deputy Judge Geiser to serve a period of 9 years imprisonment. He arrived at this figure by the adoption of a starting point of 16 years imprisonment, allowing the full one-third discount which reduced the sentence to 10 years and 8 months and then deducting a further 20 months for “…other mitigating features… apparent from the papers.” resulting in an overall discount of 43.75%.

3.The applicant now seeks leave to appeal the sentence. No complaint is made on behalf of the applicant in respect of the discounts afforded him. He contends that the judge erred by taking the applying the cocaine or Ice tariffs to the total weight of narcotics, thus effectively ignoring the fact that the overwhelming majority comprised ketamine which, gramme for gramme, attracts a lower sentence.

4.The judge indicated that, considering the drugs in isolation, he would have adopted a starting point of 9½ years imprisonment for the ketamine, following Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1; 9 years imprisonment for the cocaine, following R v LAU Tak Ming [1992] HKLR 370 as extended to cocaine in A-G v Pedro Nel Rojas [1994] 2 HKCLR 69; and 4½ years for the Ice (see A-G v CHING Kwok Hung [1991] 2 HKLR 125). Rightly, no issue is taken with the individual theoretical starting points.

5.The judge indicated that if he took “the individual approach”, by which he meant simply adding together the individual sentences, the starting point would be one of 23 years imprisonment which he correctly identified as being “far too high”. He indicated a preference to follow a “combined approach” by which he meant aggregating the quantities of narcotic, which totalled some 440 grammes, and then imposing a sentence based on the drug which attracted the highest tariff – in this instance, either Ice or cocaine.

6.This case is a further illustration of the difficulties with which a judge may be faced when sentencing a person trafficking in different quantities of drugs which attract different tariffs. In HKSAR v YIP Wai Yim and Another CACC80/2003 this court, differently constituted, considered these difficulties, reviewed the various approaches to sentencing which had been adopted in a number of different cases, discussed the appropriate approach to be followed, and recognized that that would be dependent, to an extent, on the nature and quantities of the drugs involved but that, ultimately, the task of the judge was to “…sentence fairly, realistically and in a commonsense manner”.

7.In sentencing, the judge said:

“I prefer the combined approach that your counsel… has put before me, and if one adds up the total amount of narcotic, it comes to some 445 grammes. If it had all been either cocaine or Ice, which are the more potent narcotics, then the starting point would be precisely the same, some 16 years imprisonment.

Accordingly, I adopt as my starting point a sentence of 16 years imprisonment.”

8.16 years imprisonment would have been an appropriate starting point for some 440 grammes of either Ice or cocaine. However, we are satisfied that in the present case the judge erred in principle by, effectively, failing to recognize the fact that a sentence of  9½ years imprisonment would have been appropriate for approximately 84% of the drugs and to adjust the overall starting point accordingly. (See, for example, HKSAR v YIP Pik Kwai [1000] 3 HKLRD 42 and HKSAR v WONG Kam Wo [2001] 2 HKLRD 290)

9.The appropriate overall starting point would have been 14 years imprisonment. Applying the total discount afforded by the judge, the sentence should have been 7 years 10 months imprisonment.

10.We accordingly allow the application, treat the hearing as the appeal proper, allow the appeal, set aside the sentence imposed and substitute therefor a period of 7 years 10 months imprisonment.

Ms Alice Chan, SPP,  Department of Justice, for Respondent

Mr David Boyton, instructed by Director of Legal Aid for the Applicant