HKSAR v. Leung Wai Man

CACC24/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 24 OF 2007

(ON APPEAL FROM HCCC 111 OF 2006)

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BETWEEN

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Before : Hon Stock VP, Yuen JA and McMahon J in Court

Date of Hearing : 1 December 2009

Date of Handing Down Judgment : 7 December 2009

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.The applicant was convicted by Deputy Judge E.Toh on his own plea of offences of possession of 33.21 grammes of ketamine (Count 1) and of trafficking in 167.3 kilogrammes of the same drug (Count 2).

2.He was sentenced to 12 months’ imprisonment in respect of the Count 1 offence and to 20 years’ imprisonment for the offence the subject of Count 2. Both sentences were ordered to run concurrently resulting in a total sentence of 20 years’ imprisonment.

3.The facts of the case were that police officers armed with a search warrant had lain in wait outside the applicant’s flat in Cheung Sha Wan. When he exited the premises he was intercepted and searched. The drugs, the subject of Count 1, were found in a plastic bag in his trouser pocket. He was then taken inside the premises and the drugs, the subject of Count 2, were found inside carton boxes stacked together on the living room floor. The retail value of these drugs was something over $42.8 million.

4.The applicant made admissions to the police to the effect that he had been the guardian or storekeeper of the drugs in the eight boxes and knew they contained ketamine.

5.The applicant, who was unrepresented before us, has provided self-made grounds of appeal which essentially complain that the starting point of sentence taken by the judge for Count 2, being a starting point of 30 years’ imprisonment, was too high when the modest nature of the applicant’s role in the scheme of trafficking in the drugs was taken into account. He raises other matters, such as his financial circumstances at the time and his previous lack of any conviction for a serious offence which can in no way count as mitigation in a case of this sort, and which we do not propose to further consider. The applicant makes no complaint about the sentence imposed in respect of Count 1.

6.The quantity of drug involved in Count 2 is very large. So far as the applicable guidelines are concerned, we bear in mind that the present offence occurred in February 2006 well before the new guidelines relating to ketamine (and ecstasy) were published in the judgment of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The applicable guidelines are therefore those in HKSAR v Lee Tak Kwan (1998) 2 HKC 371 where this court concluded that the starting point for trafficking in over 800 grammes of ecstasy should be 8 years and upwards. The guidelines in Lee Tak Kwan were, as a matter of practice, consistently applied to ketamine also.

7.For very large quantities of drug, the comments of the court in HKSAR v Abdallah Anwar Abbas, CACC304/2008 at paragraph 36 are apt :

“36.  In a submission with which we agree, Mr Zervos stated that it was important, at this level of trafficking, that there should be a meaningful distinction between traffickers who deal in 600 grammes of heroin and those who are caught trafficking in twice that quantity.  Equally, a distinction needs to be drawn between those whose offences are aggravated for the purposes of sentence by other factors which call for an enhancement of sentence and those who have no aggravating circumstances to be taken into account against them.”

8.Though those comments are directed specifically to the drug the subject of the charges in that case, i.e. heroin, as a matter of principle they apply generally to the approach to sentencing for large quantities of drugs. There must in the normal course be a meaningful distinction amongst traffickers dealing in significantly different amounts of drug.

9.That distinction however must operate within the parameters of that which was said by Mortimer VP (as he then was) in Lee Tak Kwan. In that case, Mortimer VP observed at p.378 that :

“An arithmetic progression for trafficking in much higher quantities than 800 grammes should be avoided.  The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances.  Some increase of the levels will be justified, for example, where there is evidence of importation or manufacture or other aggravating circumstances for which the accused is responsible.”

10.Another important consideration is that there must be an appreciation that in most cases an even worse scenario involving even larger quantities of drug can be imagined and, in arriving at the correct sentence, must be allowed for. As the court went on to say in Abdallah Anwar Abbas :

“38.  We have in mind, …, not merely as a theoretical possibility but as a matter of practical reality, that room must be left for heroin trafficking sentences which fall into the highest range. …”

11.The final consideration we wish to mention is that of consistency in sentence. Underpinning our system of criminal sentences is a recognition that like offences should attract like sentences. Unjustified disparity in sentencing undermines confidence in the justice system, and it is important that there be consistency in the category of offence where individual mitigation tends, for policy reasons, to count for little.

12.In HKSAR v Yeung Kwok Ming, CACC224/2007, the facts of which also pre-dated Hii Siew Cheng, the applicant had trafficked in 426 kilogrammes of ketamine and had been sentenced after trial to 30 years’ imprisonment. His application for leave to appeal against sentence was dismissed.

13.In our view the starting point of 30 years' imprisonment in this case was too high, given that the same starting point in Yeung Kwok Ming for a quantity of drug nearly three times greater attracted no adverse comment from this court. Further the starting point of 30 years’ imprisonment taken by the judge leaves too little flexibility for the sentencing of even worse cases involving much greater quantities of ketamine, and involving defendants who are the major culprits.

14.Applying the principles we have outlined to the present case, and in the absence of any aggravating factors, an appropriate starting point is one of 27 years' imprisonment. The full discount for the applicant’s plea would reduce that to 18 years' imprisonment. There is no other mitigating factor which is of such substance that it warrants any further discount of sentence.

15.Accordingly we allow the application, treat the hearing as the appeal and allow the appeal to the extent that the applicant’s sentence on Count 2 is reduced to one of 18 years' imprisonment. We do not interfere with the order of the judge that the sentences on Count 1 and Count 2 be served concurrently. That results in a totality of sentence of 18 years' imprisonment.

Mr David Leung, Ag SADPP of the Department of Justice, for the Respondent

The Applicant, in person