HKSAR v. Yim Hung Lui Ricky

CACC 266/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 266 OF 2011

(ON APPEAL FROM HCCC 127/2011)

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BETWEEN

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Before: Hon Cheung and Yuen JJA in Court

Date of Hearing: 2 February 2012

Date of Judgment: 2 February 2012

Date of Reasons for Judgment: 13 February 2012

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the court):

Trafficking in dangerous drugs

1.The applicant pleaded guilty before a magistrate to two charges of trafficking in dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and was committed to the High Court for sentence. Barnes J sentenced him to a total of 8 years’ imprisonment.  He appliedfor leave to appeal against sentence.  We allowed the application and treated it as the appeal proper.  We allowed the appeal and substituted the original sentence with a sentence of 6 years and 8 months’ imprisonment.

Facts

2.The facts can be briefly stated.  The Police arrested the applicant at a staircase in a building in Sham Shui Po and found dangerous drugs on his body (‘Charge 1’). The Police later searched a flat rented by the applicant in which dangerous drugs (‘Charge 2’) and drug packaging paraphernalia were found.

3.The drugs under the first charge were:

1) 26.80 grammes of methamphetamine hydrochloride (‘Ice’) and

2) 22.67 grammes of ketamine.

4.The drugs under the second charge were:

1) 4.56 grammes of cocaine,

2) 1.12 grammes of herbal cannabis,

3) 20 tablets containing 0.12 grammes of nimetazepam and

4) 2 tablets of 7 milligrammes of methamphetamine.

The combined approach

5.As different drugs were involved the judge adopted the ‘combined approach’ as enunciated in cases such as HKSAR v. Yip Wai-yin and Another [2004] 3 HKC 367 by first deciding on the sentence for the most serious drug and then making an upward adjustment to take into account the significant quantities of the other ‘less serious’ drugs.

6.She regarded Ice as the most serious drug and adopted a starting point of 8 years for the 26.80 grammes of Ice (the tariff is 7 to 10 years for 10 to 70 grammes : Attorney General v. Ching Kwok Hung [1991] 2 HKLR 25).  She then adjusted the starting point to 12 years having regard to two of the more serious drugs, namely, 4.56 grammes of cocaine (the tariff is 2 to 5 years for up to 10 grammes : Attorney General v. Pedro Nel Rojas [1994] 2 HKCLR 69 and R v. Lau Tak Ming and others [1990] 2 HKLRD 370) and ketamine (the tariff is 4 to 6 years for 10 to 50 grammes : Secretary for Justice v. Hii Siew Cheng [2009] 1 HKLRD 1) but disregarding the other types of drugs. 

7.She then gave a one-third discount for the guilty plea and imposed a sentence of 8 years’ imprisonment for each of the two charges, both to be served concurrently.

8.The judge had considered that if the ‘individual approach’ in sentence was to be adopted i.e. assessing the individual sentence for each drug then the starting point would be 16 years before adjustment for totality.

The ‘absurdity test’ argument

9.The point taken by Mr. Pang, counsel for the applicant, is a short one.  He relied on a passage in Yip Wai-yin at paragraph 9(2) that

‘ (2) The ‘combined’ approach whereby the court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the court is then able to assess, realistically and fairly, the appropriate sentence. For example, sentencing on the basis of individual drugs may lead to absurdity where the addition of the sentences for each individual drug leads to a higher overall sentence than if the whole quantity of the cocktail or batch merely contained the more or most serious of the various drugs: see here HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42; HKSAR v Wong Kam Wo [2001] 2 HKC 647, [2001] 2 HKLRD 290.’

10.Mr. Pang argued that the combined quantity of drugs in the present case is 55.27 grammes.  If they are all treated as Ice which is the most serious kind among the drugs found, then according to the tariff the sentence should be nine years’ imprisonment which is still less than the 12-year starting point adopted by the judge. The absurd situation envisaged in Yip Wai-yin (the ‘absurdity test’) is engaged.

11.The ‘absurdity test’ is used to crosscheck the appropriateness of the total sentence.  It highlights the difference between the ‘individual approach’ and the ‘combined approach’.  However, as apparent from the authorities, the issue ultimately is whether the totality is correct.  As pointed out by this court the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug : see HKSAR v Cheung Po-cho, Tommy CACC 233/2005, HKSAR v Ho Chak-ming CACC 316/2009 and HKSAR v Cheng Yat-ming CACC 455/2006.

12.In this case apart from trafficking in different types of drugs, the applicant is a repeat offender, having a similar offence in 2004 and other possession of drugs offences.  But even taking these factors into account the starting point of 12 years’ imprisonment is still manifestly excessive.  Looking at the matter from another angle, the 12-year starting point is the equivalent sentence for trafficking in 180 to 185 grammes of Ice.  Seen in this light the totality adopted by the judge was clearly wrong.

Conclusion

13.In our view the appropriate starting point in respect of each sentence is 10 years’ imprisonment.  Given the one-third discount, the sentence for each charge should be 6 years and 8 months’ imprisonment which is to be served concurrently.

Ms Agnes Chan ADPP, of the Department of Justice, for the respondent

Mr Robert Y. H. Pang, instructed by Director of Legal Aid, for the applicant