HKSAR v. Wan Lau Mei

CACC 389/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 389 OF 2013

(ON APPEAL FROM HCCC NO. 307 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the Court):

Introduction

1.On 25 October 2013 the applicant appeared in the Court of First Instance before Deputy High Court Judge Geiser (“the judge”) having been committed for sentence on two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The offence the subject of the first charge occurred on 14 November 2012 when 2.96 grammes of a solid containing 2 grammes of a cocaine were found on the applicant’s person.

3.The offence the subject of the second charge related to drugs found in a hotel room in which the applicant was residing.  These were various quantities of different types of drugs, namely 3.39 grammes of a powder containing 2.75 grammes of ketamine, 6.28 grammes of a crystalline solid containing 6.05 grammes of methamphetamine hydrochloride (“ICE”), 7.03 grammes of a mixture containing 5.47 grammes of heroin hydrochloride (“heroin”) and 11.49 grammes of a solid containing 8.62 grammes of cocaine.

4.In respect of the first charge the applicant was sentenced to 1 year 4 months’ imprisonment and in respect of the second charge to 4 years 8 months’ imprisonment.  The judge further ordered that the sentence for the second charge should run consecutively to the sentence for the first charge thereby making a total sentence of 6 years’ imprisonment.

5.The applicant applied for leave to appeal her sentence by a notice dated 29 October 2013.

6.On 21 March 2014, we granted leave, allowed the appeal and substituted on each charge a sentence of 4 years 4 months’ imprisonment, to run concurrently. These are the reasons for that decision.

The Circumstances of the Offence

7.This was a typical roadside stop and search situation with the applicant being taken back to her place of residence once it had been determined that she was in possession of dangerous drugs.  The stop and search took place at 15.35 hours on 14 November 2012 in the vicinity of Tokwawan Road, Hung Hom.  No drugs were found on the person of the applicant at the time that she was searched on the street but she agreed to accompany the police officers back to Hung Hom Police Station so that she could be further searched there.

8.Inside the search room at Hung Hom Police Station, the police found the drugs particularized in the first charge inside the applicant’s underpants. The drugs were found wrapped in tissue paper and placed inside a condom.  Also found inside her handbag was RMB1,740, HK$30,619.20, a key to Room 8 of the Nathan Hotel and three mobile telephones.  Upon being arrested and cautioned she responded “Ah Sir, I was going to sell the bag of cocaine to earn money”.

9.Police officers accompanied the applicant back to Room 8 of the Nathan Hotel which was her place of residence.  Armed with a search warrant, they searched the room.  On the bedside table they found a vacuum flask and inside the bottom of the flask there were 53 small plastic bags each containing dangerous drugs.  On the table there was a red handbag and inside this red handbag there was, amongst other things, an electronic scale and numerous small empty plastic bags.  The applicant was then cautioned for trafficking in the dangerous drugs found in her room, to which she replied “Ah Sir, all the dangerous drugs searched out by you in the room were going to be taken away by me for selling”.

10.When subsequently interviewed under caution at the police station, the applicant admitted that she had purchased the drugs from a person she referred to as “Tak Chai”, approximately one week previously for the sum of $13,000 to $14,000 dollars.  She said the equipment found in her room were used to measure the drugs bought from Tak Chai.

11.The Government Chemist examined all the seizures and found them to be the drugs as particularized in the charge.

12.In terms of the quantity of narcotic, the drugs seized are as follows:

First count	-		2 grammes of cocaine
Second count	-	2.75 grammes of ketamine
	-	6.05 grammes of ICE
	-	5.47 grammes of heroin
	-	8.62 grammes of cocaine
Sub-total:		22.89 grammes
Total:			24.89 grammes of narcotic

The Mitigation

13.The applicant appeared at trial represented by Mr McGowan who also appeared before us.  He informed the judge that the applicant was a long-term drug addict and her addiction was responsible for her past criminal record.  She was born in 1961 and first appeared before the courts in 1986 when she was convicted of gambling for which she was fined $400 dollars.  She had similar convictions in 1990 and in 2004.  In 2005 she received her first conviction for a drug offence, namely possession of a Part 1 poison for which she was fined $3,000 dollars.  In 2007, by which time she was 46 years of age, she was convicted of simple possession of a dangerous drug and for this offence she was sentenced to Drug Addiction Treatment Centre.  It was not until 2009 that she was first convicted of trafficking in a dangerous drug and on that occasion she was sentenced to 3 years and 4 months’ imprisonment.  By 2009 she was a drug addict and after being released from prison she apparently relapsed into drug use.

14.Mr McGowan informed the Court that the applicant became involved in drug trafficking in 2009 through the introduction of her then boyfriend.  As a consequence of the conviction that she received at that time, her husband left her and her family disowned her.  Mr McGowan said that on his instructions the boyfriend was also involved in the current offence.  The applicant commenced trafficking on this occasion because she was struggling to make ends meet and she needed to sell drugs in order to support her addiction.

15.According to Mr McGowan the consequence to the applicant of her drug addiction, is that she effectively destroyed her life over the last 10 years. In that time she alienated herself from her family, lost her husband and lost contact with her two children.  She has two daughters, one is now 30 and is married and the other is 18.  For the last 3 years, following her release from prison, the applicant had simply been drifting rudderless and resuming her drug use.

16.Mr McGowan pointed to some hope for her for the future as she could now look forward to receiving support from her family on release from prison for the current offence.  He said that the current offences had caused her family to unite together in support of her and to come to her aid.  Her sister and brother and his wife were all present at court and we note that her sister has come to court for the hearing of the applicant’s appeal.  It was they who arranged for her to be legally represented and they have promised her a place to live when she is released from prison.

17.Because the offences involved a variety of different drugs, Mr McGowan referred the judge to the legal principles involved in sentencing in this situation.  The Court has laid down two approaches, referred to as the individual approach and the combined approach.  In the present case Mr McGowan suggested that the combined approach was the appropriate one for the judge to take and under this approach the judge has to identify what sentencing guideline he will employ for the purpose of determining his sentencing starting point.  Mr McGowan suggested that the judge employ the guideline for heroin and cocaine as these two drugs made up the vast bulk of the total quantity of drugs.

18.No submissions were made by Mr McGowan on whether the sentence for the second charge should be made concurrent to or consecutive with the sentence for the first charge.

The Reasons for Sentence

19.In his Reasons for Sentence the judge recited the facts which related to the charges and then referred briefly to the unfortunate personal history of the applicant.  He then said that for the first charge involving 2 grammes of cocaine he would use the R v Lau Tak Ming [1990] 2 HKLR 370 guidelines and the relevant sentencing band, for quantities up to 10 grammes, has a sentencing range of 2‑5 years’ imprisonment.  He took a starting point of 2 years’ imprisonment which he then discounted by a third to allow for the applicant’s plea of guilty and that left him with a final sentence of 16 months’ imprisonment for the first charge.

20.For the second charge, he noted that it was complicated by reason of there being four different types of narcotic and that in respect of those other than ketamine, the quantities were roughly similar; 6.05 grammes of ICE, 5.47 grammes heroin and 8.62 grammes of cocaine.  Although noting that the quantity of cocaine was slightly larger, he said that in his judgment the most potent narcotic is ICE.

21.In approaching his starting point, he said:

“In determining the appropriate starting with regards sentence on Charge 2, I will adopt the combined approach and take 5 years imprisonment as my starting point, based on 6.05 grammes of “ice”.  In order to take into account the quantities of ketamine, heroin and cocaine, I make an upward adjustment of 2 years imprisonment, increasing the starting point to one of 7 years imprisonment on Charge 2.”

22.He then discounted this sentence by one-third coming to a final sentence for the second charge of 4 years and 8 months’ imprisonment.  He then ordered that the sentence for the second charge should run wholly consecutively to the sentence for the first charge and thereby arrived at a total sentence of 6 years’ imprisonment.

The Grounds of Appeal

23.There are only two grounds of appeal.  The first is that the judge erred in making the sentences on the second charge consecutive to the sentence on the first charge and the second ground is simply that by virtue of this error, and generally, the total sentence is wrong in principle and/or manifestly excessive.

24.The submissions in respect of this appeal by both Mr McGowan and the counsel for the respondent are commendably to the point and succinct. Mr McGowan argues that in cases of this kind, which are frequently before the court, the correct approach is to combine the quantity of narcotic seized from the person on the street with the quantity of narcotic found in the person’s residence or other premises and sentence the person as though the person was charged with one offence only.

25.Under the second ground of appeal Mr McGowan said that the judge, in the circumstances of this applicant, should have taken the sentencing tariff for cocaine and heroin as his guide as these two drugs made up the vast bulk of the narcotic.  Mr McGowan argues that if this sentencing tariff was relied upon then a starting point of around 6½ years, rather than the 7 adopted by the judge, is appropriate.

Discussion

26.Counsel for the respondent Mr Francis Lo, very properly recognized that the judge had erred in the way in which he approached the sentencing of this applicant.  He accepts that the judge erred in ordering consecutive sentences and that as a result the overall sentence was wrong in principle and excessive.

27.There are two sentencing issues present in this case.  The first is how to sentence for two trafficking offences where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations.  This situation most commonly occurs when, as here, drugs are found on the accused’s person in a roadside stop and search and then the accused is taken back to his residence or from premises he has just left and further drugs are discovered.  The cache of drugs in the premises are often the source of the drugs found on the accused’s person.

28.The second sentencing issue is how a judge should sentence an accused who is found in possession of a variety of different drugs.

29.In respect of the first issue the law is now clear.  The judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another.  Separate sentences still have to be imposed and so the judge imposes the same sentence for the first offence, here the streetside possession on the applicant of 2 grammes of cocaine, as he does for the second offence.  He determines the sentence by adding the quantity of drug of the first charge to the quantity of drugs the subject of the second charge, here the drugs found in the applicant’s residence.  An appropriate sentence for this total quantity of drugs is then imposed for both offences with the sentence for the second offence made concurrent with the sentence for first offence.

30.Such an approach more truly reflects the accused person’s culpability as the reality of the situation is that on the day of the charges the accused was in overall possession of the drugs found at the two locations.  It is also an approach which ensures that the accused’s final sentence is not artificially inflated by separating out the drugs of the two charges as though the accused had been guilty of two quite separate offences and then imposing consecutive sentences. (See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.)

31.This error is the subject of the first ground of appeal and it is accepted by the respondent that it is an error into which the judge fell.

32.The applicant, therefore, succeeds on her first ground of appeal and the order of the judge that the sentence for the second charge be served consecutively to the sentence for the first charge is set aside.  Furthermore, as the judge has not sentenced properly for the first charge that sentence is also set aside.

33.Once the drugs of the first charge are combined with the drugs in the second charge, the total quantity of drugs in which the applicant was trafficking then becomes:

	2.75	grammes of ketamine
	6.05	grammes of ICE
	5.47	grammes of heroin hydrochloride
	10.62	grammes of cocaine
Total:	24.89	grammes of narcotic

34.That brings us to the second sentencing issue of how to sentence an accused who is trafficking in a variety of different drugs.  The Court of Appeal has set out two approaches to this task which have become known as the combined approach and the individual approach.  These approaches are clearly set out by Ma CJHC (as he then was) in HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 at 371 H-372 F:

“ 9. In a number of decisions of this court, various approaches have been adopted or approved in relation to the sentencing of cocktail drugs or where a number of different quantities of drugs is the subject of a charge of trafficking in dangerous drugs:

(1) The ‘individual’ approach as outlined above of looking at each component of the cocktail or the batch, and then sentencing by adding up the different sentences relevant to each individual drug: see for example HKSAR v Lai Kwok Hung (CACC 564/2002, 23 April 2003, unreported) (CA).

(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.

(3) The methodology of this ‘combined’ approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs – see HKSAR v Cheung Kwok Leung Lowence (CACC 539/2002, 22 April 2003, unreported) (CA). By ‘the more or most serious drug’, we are not referring to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of Ice and Ketamine are found in a cocktail, the more serious drug is taken to be Ice even in terms of quantity, it may be less than the Ketamine.

(4) We have so far used the term ‘significant’ quantities in a cocktail. This is in contrast to insignificant amounts, in which case the court may choose to ignore such small quantities for the purpose of sentencing.

10. Whichever approach is appropriate will depend on the circumstances of the case, but we are of the view that the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and a commonsense manner.”

35.The judge was aware of the two different approaches and decided, correctly in our view, to adopt the combined approach.  As this Court said in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 at 859:

“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.”

36.Under the combined approach it is necessary for the judge to identify the drug sentencing tariff that he will employ.  This is done by identifying the drug which makes up the bulk of the narcotic seized or where the drugs are of significantly differing potency the judge may use the tariff of the more potent drug if it makes up a significant proportion of the total quantity of drugs being trafficked.

37.Here, the judge noted that the most potent drug amongst the applicant’s cache was ICE and so decided that he would use the tariff for that dangerous drug.  But, the ICE made up only approximately one quarter of the total quantity of narcotic but the heroin and cocaine, which are treated identically for sentencing purposes, made up 16.09 grammes of the 24.89 grammes, approximately 65% of the total narcotic.  The difference in potency between ICE and heroin and cocaine is not so great as to justify, in these circumstances, the use of the ICE tariff instead of the heroin/cocaine tariff.  In our view the judge erred in preferring the former tariff over the latter.

38.Taking a global view of the drugs being trafficked, the appropriate course was recognize that there were three serious and potent drugs in the applicant’s possession, heroin, cocaine and ICE.  Adding the ICE to the cocaine and heroin produces a total narcotic of 22.14 grammes of serious and potent drugs and the applicant should have been sentenced for that amount using the heroin/cocaine sentencing tariff.  Ketamine is too different a drug from heroin, cocaine and ICE for it to be included with them and the only issue is whether a separate additional sentence should be imposed for it.

39.A quantity of 2.75 grammes of ketamine would, on the guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, attract the sentencing range of 2-4 years’ imprisonment which applies to quantities between 1-10 grammes.  2.75 grammes is not so small that it can be ignored but if it was sentenced separately it would artificially inflate the sentence. (See HKSAR v Wong Kam Wo [2001] 2 HKLRD 290 at 294 D and HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 at 372 E.)

40.We believe that the proper way to have regard to it is after an initial starting point has been identified for the 22.14 grammes of cocaine, heroin and ICE when consideration is given to whether this initial starting point should be enhanced to allow for the fact that the applicant was trafficking in a number of different types of drugs.  This Court has said that where an accused is trafficking in a variety of drugs then that is to be regarded as 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.” [1] At this stage account can be taken of the fact that amongst the drugs is ICE which is a more potent drug than heroin and cocaine and there is the small amount of ketamine.

41.The relevant Lau Tak Ming tariff for 22 grammes of heroin/cocaine is that applicable for quantities between 10 and 50 grammes for which the sentencing range is 5 to 8 years’ imprisonment.  The issue then becomes where within this band is the appropriate starting point for this applicant.  We are of the view that an appropriate starting point for this quantity of drugs is 6 years’ imprisonment.  But, when allowance is made the fact that the applicant was trafficking in a number of different drugs amongst which were ICE and the 2.75 grammes of ketamine, we believe that an appropriate enhancement is a further 6 months’ imprisonment.

42.Another area where enhancement of the starting point should be considered for this applicant is in respect of her criminal record which may suggest she is a persistent offender.  She has two prior convictions for drug trafficking and the present and two prior convictions all occurred shortly after her release from prison for the sentence of the earlier offence.  However, we note that the trafficking charges are accompanied by separate possession charges which confirm her claim to being a drug addict and support her assertion that she was trafficking in order to feed her addiction.  The judge did not regard these prior convictions as an aggravating factor requiring a sentence containing an additional element of deterrence.  In light of the personal circumstances of the applicant as revealed to him in the course of the mitigation and confirmed before us on appeal, we think he was right to reach this view.

43.Accordingly, before discount for the plea of guilty the appropriate sentence was 6½years’ imprisonment.  When this is discounted for the applicant’s guilty plea, the final sentence for this charge becomes 4 years and 4 months’ imprisonment.

Conclusion

44.For the reasons we have given, we allowed the application for leave to appeal, treated the hearing of the application as the hearing of the appeal and allowed the appeal.  We set aside the judge’s sentences for both charges and in substitution for them we imposed sentences of 4 years 4 months’ imprisonment on both charges, and we further ordered that the sentence for the second charge shall be served concurrently with the sentence for the first charge.

45.At the hearing of the appeal after the Court had delivered its judgment, the appellant applied for her costs of the appeal.  In the present case where the error of the judge was clear and the respondent had no course open to it other than to concede the appeal we could see no reason why the appellant should not receive her costs.  We, therefore, ordered that the costs of the appeal be awarded to the appellant to be taxed if not agreed.

Mr Francis Lo SADPP, of the Department of Justice, for the respondent

Mr James H M McGowan, instructed by Tang, Wong & Cheung, for the applicant

[1] HKSAR v Yim Hung Lui Ricky CACC 266/2011; unreported, 2 February 2012.