HKSAR v. Ko Ka Hing

[English Translation – 英譯本]
CACC 355/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 355 OF 2008

(ON APPEAL FROM DCCC NO. 403 OF 2008)

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BETWEEN

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Before: Hon Cheung JA and Tong J in Court

Date of Hearing: 22 May 2009

Date of Judgment: 3 June 2009

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court):

Application for leave to appeal against sentence

1.On 6 October 2008 the applicant pleaded guilty before Deputy District Judge Anthony Kwok to two counts of trafficking in dangerous drugs. Charge 1 involved 7.77 grammes of cocaine in solid form and 1.81 grammes of ketamine in powder form, whereas Charge 2 involved 11.36 grammes of cocaine in solid form and 37.71 grammes of ketamine in powder form. The two offences therefore involved 19.13 grammes of cocaine and 39.52 grammes of ketamine in total. Judge Kwok sentenced the applicant to imprisonment for 58 months. The applicant now seeks leave to appeal against sentence.

Facts

2.The facts showed that on 14 March 2008, police officers intercepted the applicant outside the entrance of a building in High Street, Sai Ying Pun and found a key on his person, which was a key to the applicant’s residence in that building. On the strength of a search warrant granted by the court, the police officers entered the flat with the applicant immediately. A search was first conducted on the applicant inside the flat. From his underpants a large plastic bag was found, which contained three packets of dangerous drugs (i.e. the dangerous drugs referred to in Charge 1) and 15 re-sealable transparent plastic bags. Besides, the police found from the applicant’s bed 16 bags of dangerous drugs (i.e. the dangerous drugs referred to in Charge 2).

Sentencing approach

3.The Court of Appeal has set forth in a number of decisions the two sentencing approaches to be adopted in respect of a defendant who trafficked in more than one type of dangerous drugs:

(1) The first approach is the “individual approach” where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount;

(2) The second approach is the “combined approach” where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point; but no such adjustment is required if the less serious drug is present in insignificant quantity.

(3) Where the “combined approach” is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. On the other hand, if the two types of drugs are present in similar quantities, the quantity of the drug of greater potency will provide the basis for the starting point.

(4) As a rule of practice, where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the “combined approach”; where, on the other hand, the two drugs are disparate in quantity and potency, the “individual approach” is to be preferred.

(5) The appropriate approach to be adopted is a matter of discretion for the sentencing court, to be exercised in light of the circumstances of the particular case. No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point, see: HKSAR v. Chan Ho Wai (CACC 129/2008); HKSAR v. Yip Wai Yin and another [2004] 3 HKC 367;HKSAR v. Cheung Kwok Leung [2003] 3 HKLRD 542; HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42.

4.To the above principles, we would add the following observations:

(1) In respect of a mixture of different types of dangerous drugs, i.e. the so-called “cocktail drugs” or “designer drugs”, which usually involves the use of one of the components to enhance the potency of another, it is more appropriate for the court to adopt the “combined approach” in determining the starting point.

(2) In fact, whichever approach is adopted, the court will inevitably have to fix a sentence for each type of drug and then make adjustments as appropriate, in order to avoid the absurdity referred to in Yip Wai Yin: where the “individual approach” is adopted, the addition of the sentences for each individual drug may lead to a far higher overall sentence than if the whole quantity of the mixture merely contained the more or most serious of the various drugs.

The calculations made by Judge Kwok

5.In the present case, Judge Kwok adopted the “individual approach”. He first considered the starting point for each of the two types of dangerous drugs and then arrived at an overall starting point.

6.First of all, Judge Kwok considered that the appropriate sentence for 19.13 grammes of cocaine should be 68 months’ imprisonment (the sentencing guidelines in Lau Tak Ming for trafficking in heroin are applicable to sentencing for trafficking in cocaine, see AG v. Pedro Nel Rojas [1994] 2 HKLRD). Judge Kwok accepted that cocaine was more potent than ketamine. However, as much as 39.52 grammes of ketamine was involved in the present case and, upon the sentencing guidelines then applicable, the relevant starting point was 27 months’ imprisonment (the starting points for ketamine and ecstasy were then the same, see Lee Tak Kwan [1998] 2 HKLRD 46 and HKSAR v. Leung Chun Fung [2003] 2 HKLRD 282). In the end, Judge Kwok adopted 87 months’ imprisonment as the overall starting point and, giving the one-third discount for the guilty plea, reduced the term to 58 months.

Ground of appeal

7.Mr. Hung, Counsel for the applicant, points out that, assuming all the 58.65 grammes of dangerous drugs in question were the more serious type of drug, namely cocaine, then according to the guidelines, the appropriate starting point would be 8 years (i.e. 96 months). However, on the “individual approach” that Judge Kwok adopted, the two starting points of 68 months and 27 months added up to 95 months, which was almost the same as the said notional starting point of 96 months. It is therefore submitted that the “individual approach” was unfair to the applicant.

Our opinion

8.Given the two types of dangerous drugs in the present case appeared not as a mixture but in separate packages, we do not think that Judge Kwok erred when he adopted the “individual approach” in determining the starting point. In adopting this approach, Judge Kwok had considered the principles in Chan Ho Wai as well as the potency and quantities of the dangerous drugs in question. As Judge Kwok did not arrive at the overall starting point by simply adding up the two individual starting points, the absurdity referred to in Yip Wai Yin did not arise. Judge Kwok merely adjusted the starting point of 68 months upwards to 87 months.

9.In fact, the fundamental issue in the present case is whether the starting point of 87 months adopted by Judge Kwok was at variance with the totality principle. In view of the large quantities of the two types of dangerous drugs in question, we do not consider the starting point of 87 months manifestly excessive. The application is dismissed accordingly.

Ms. Olivia Tsang, Senior Public Prosecutor, for the Respondent.

Mr. Andy Hung, instructed by the Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.