HKSAR v. Sin Chung Kin and Another

[English Translation – 英譯本]

CACC 458/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 458 OF 2011

(ON APPEAL FROM HCCC NO. 232 OF 2011)

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BETWEEN

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Before: Hon Yeung Ag CJHC and Yuen JA in Court

Date of Hearing: 25 July 2012

Date of Judgment: 25 July 2012

Date of Handing Down Reasons for Judgment: 17 August 2012

REASONS FOR JUDGMENT

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

Introduction

1.The two applicants Sin Chung-kin (“Sin”) and Hon Chi-on (“Hon”) pleaded guilty before Derek Pang J to two charges of trafficking in dangerous drugs, namely ketamine and cocaine.  Charge 1 involved 4.49 kg of a powder containing 3.02 kg of ketamine; Charge 2 involved 3.1 kg of a powder containing 2.1 kg of ketamine and 29.21 g of a solid containing 18.8 g of cocaine.

2.Furthermore, Sin and Hon each pleaded guilty to one charge ofpossession of a dangerous drug.  Charge 4, to which Sin pleaded guilty, involved 0.58 g of a solid containing 0.38 g of cocaine; Charge 3, to which Hon pleaded guilty, involved 2.49 g of a solid containing 1.93 g of cocaine.

3.For Charges 1, 2 and 4, Sin was sentenced to imprisonment for 11 years, 12 years and 8 months respectively, with 3 years and 8 months thereof  to run consecutively, making a total term of 14 years and 8 months.

4.Similarly, for Charges 1, 2 and 3, Hon was sentenced to imprisonment for 11 years,12 years and 8 months respectively, with 3 years and 8 months thereof to run consecutively. The total term for Hon was also 14 years and 8 months.

5.The two applicants applied for leave to appeal their sentences.  In the case of Sin, his application was made out of time.  Having heard and considered the merits thereof, we dismissed the applications.  The reasons for our judgment are set out below.

Prosecution case

6.On 25 November 2010, a private car stopped outside a dilapidated building at 18G Tai Tong Kuk, Yuen Long.  The car was driven by Hon, and his girlfriend (Madam Yuk) and Sin were passengers, occupying the front passenger seat and the back seat respectively.

7.Hon left the car and opened the front door of the building with a key.  He then entered the building with Sin, and Madam Yuk waited in the car.  At that time, Sin was carrying a shoulder bag on the shoulder and holding a white plastic bag in the left hand.

8.After about 30 minutes, Hon and Sin left the building.  Sin was still carrying the shoulder bag and the white plastic bag.  Hon got into the car and took the driver seat, while Sin sat on the left side of the back seat.  Then Customs officers approached the group, requesting to search the car.  Hon attempted to drive off but failed.

9.Subsequently, Hon, Sin and Madam Yuk were taken out of the car and separately questioned by the Customs officers.

10.The officers found a white plastic bag onthe back seat taken by Sin. The bag contained powder weighing 4.49 kg in total and containing 3.02 kg of ketamine (Charge 1).

11.Sin admitted that this batch of ketamine belonged to him.  He said he was going to take it to someone.

12.In the shoulder bag carried by Sin there was 0.58 g of a solid containing 0.38 g of cocaine (Charge 4).  Sin said the cocaine was for his own use.

13.Then, by using a key found on Hon, the Customs officers entered one of the rooms in the building.  From a table and the floor in the room they seized powder weighing 3.10 kg and containing 2.1 kg of ketamine, a solid weighing 29.21 g and containing 18.8 g of cocaine (Charge 2), as well as some materials and paraphernalia for manufacturing drugs.  Hon said that he was aware of the nature of the drugs but that he did not know to whom the drugs belong.  Sin admitted that the drugs belonged to him and that he intended to sell them to other people.

14.The Customs officers also seized a tenancy agreement, which showed that Hon was the tenant of the building.  Later, in another place of residence rented by Hon, the officers found a solid weighing 2.49 g and containing 1.93 g of cocaine (Charge 3).

15.Sin and Hon admitted that they unlawfully trafficked in the dangerous drugs involved in Charges 1 and 2.  They also admitted to possessing the drugs involved in Charges 4 and 3 respectively.

16.The total value of the ketamine involved in Charges 1 and 2 was approximately $880,000, and the total value of the cocaine involved in Charges 2, 3 and 4 was approximately $29,000.

17.Sin was 18½ years old and had one conviction for possession of offensive weapon. Hon was 25 years old and had six conviction records for offences including unlawfully trafficking in and possessing dangerous drugs.

Approach taken by the Judge

18.The learned Judge did not discern any mitigating factor in favour of the two defendants except their pleas of guilty.

19.The Judge took the view that the appropriate overall starting point for trafficking in ketamine totalling 5.12 kg and cocaine totalling 18.8 g was imprisonment for 22 years.  As both defendants pleaded guilty, the term of imprisonment was reduced by one third to 14 years and 8 months.  In the end, the Judge passed the above-mentioned sentences on the defendants for each of the charges and ordered that 3 years and 8 months was to run consecutively, resulting in a total sentence of 14 years and 8 months for each defendant.

Grounds of appeal

20.Mr. Poon, Counsel for both applicants, complained that the sentences passed by the Judge were excessive. Mr. Poon also invited this Court to lay down sentencing guidelines for offences of trafficking in large quantities of ketamine.

Discussion

21.Ketamine is highly toxic and extremely hazardous to the human body.  Since 2005 there has been a sharp increase in the quantities of ketamine seized by the police, and ketamine has become the most widely abused drug among youngsters aged below 21.  In S for J v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal, having received relevant expert evidence, acknowledged the above situation and, on that basis, went on to revise the sentencing guidelines for trafficking in ketamine.

22.The revised guidelines are as follows:

(1)	Up to 1 g:	within the court’s discretion
(2)	Over 1 g to 10 g:	2-4 years
(3)	10 g to 50 g:	4-6 years
(4)	50 g to 300 g:	6-9 years
(5)	300 g to 600 g:	9-12 years
(6)	600 g to 1,000 g:	12-14 years
(7)	over 1,000 g:	14 years upwards

23.Where large quantities of ketamine are involved, although it is not possible to enhance the starting points proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.

24.The starting points for trafficking in dangerous drugsaredetermined according to the quantities of the drugs involved.  For trafficking in large quantities of dangerous drugs, the “tariffs” laid down by the Court of Appeal have never exceeded 20 years’ imprisonment.  In the case of trafficking in heroin, 400 g attracts 15 years’ imprisonment and 600 g 20 years’ imprisonment (see R v Lau Tak-ming & Others [1990] 2 HKLR 370).  In the case of trafficking in “ice”, a quantity between 300 g and 600 g attracts 14 to 18 years’ imprisonment (see AG v Ching Kwok-hung [1991] 2 HKLR 125).  According to these authorities, when the quantity of the heroin in question is increased by 50% from 400 g to 600 g, the starting point will increase from 15 years to 20 years; and when the “ice” in question is doubled from 300 g to 600 g, the starting point will go up from 14 years to 18 years.

25.The maximum sentence for trafficking in a dangerous drug is life imprisonment. When the quantity of the heroin or “ice” involved is so large that it is measured by the kilogramme, the starting point may well go far beyond 20 years and may even reach 30 years or more.

26.Mr. Poon pressed the point that there had been decided cases involving trafficking in large quantities of ketamine, in which offenders received sentences lighter than those received by the applicants.  Mr. Poon cited a large number of such cases, including HKSAR v Siu Wai Kam [2003] HKC 338, HKSAR v Leung Wai Man (CACC 24/2007), HKSAR v Cheung Yuk Keung (CACC 498/2006), HKSAR v Ng Siu Kam (CACC 474/2009).  The judgments in the first three cases cited by Mr. Poon are not applicable because they were delivered before the judgment in Hii Siew Cheng.  Ng Siu Kam concerned the offence of conspiracy to traffic in a dangerous drug and the quantity of the drug involved was merely an estimate.  Furthermore, in that case the Court of Appeal did not explain clearly the rationale for passing the sentence that it did.  Therefore, the case offers limited guidance.

27.The longest sentence in the guidelines laid down in Hii Siew Cheng is 14 years’ imprisonment for trafficking in 1,000 g of ketamine.  However, if one follows the rate of enhancement of sentences as is apparent from Lau Tak-ming and Ching Kwok-hung, then for trafficking in 2,000 g and 3,000 g of ketamine (which, respectively, doubles and triples the 1,000 g which attracts 14 years’ imprisonment), the appropriate starting points should respectively be no less than 18 years and 20 years.

28.Taking one step further, if more than 3,000 g of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity.  The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.

29.The first two charges to which the applicants pleaded guilty involved a total of 5.12 kg of ketamine and 18.8 g of cocaine.  The starting point for trafficking in 18.8 g of cocaine alone could be as long as 6 years.

30.The Judge adopted 22 years as the overall starting point and then reduced it by one-third to 14 years and 8 months on account of the applicants’ guilty pleas.

31.Judging from the background of the case and the quantities of the drugs involved, neither the sentences for the separate charges nor the total sentence was manifestly excessive.  There was no room for any reduction.

32.For the above reasons, we have refused to grant leave to the applicants to appeal their sentences.

Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the Respondent.

Mr. Jackson Poon, instructed by Messrs. S.H. Chan & Co., assigned by the Legal Aid Department, for the Applicants.

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