Read the full judgment text of CACC 389/2013 on BabelCite. This Court of Appeal judgment was delivered on 21 March 2014 before Stock VP, McWalters J.
Criminal law – sentencing – trafficking in dangerous drugs – Dangerous Drugs Ordinance (Cap 134) s.4(1)(a) and (3) – two counts arising from drugs found on applicant at roadside stop and further drugs found in her hotel room – whether sentences should be consecutive or concurrent – combined approach vs individual approach to sentencing for cocktail drugs – choice of sentencing tariff – whether prior trafficking convictions are aggravating – appeal against sentence allowed. The applicant was stopped and searched on 14 November 2012 in Hung Hom with 2 grammes of cocaine concealed on her person, and a search of her hotel room disclosed a further 22.89 grammes of dangerous drugs (ketamine, ICE, heroin and cocaine) along with an electronic scale, empty plastic bags and substantial cash. She admitted intending to sell the drugs. The Court of First Instance sentenced her to 16 months' and 4 years 8 months' imprisonment respectively, with the second sentence consecutive, giving a total of 6 years. On appeal, the Court of Appeal held, applying HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, that when drugs are found on the accused and at the accused's premises on the same day they constitute one occasion of possession, and separate but equal (concurrent) sentences should be imposed for the total quantity, not consecutive sentences. The first ground of appeal therefore succeeded. On the second issue, the court confirmed the two approaches set out in HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 and the rule of practice in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 that the combined approach is appropriate where the sentencing brackets for the drugs are not dissimilar, and the individual approach where the drugs are disparate in quantity and potency. The judge had correctly adopted the combined approach, but erred in selecting the ICE tariff as his guideline; the 6.05g of ICE made up only about a quarter of the total 24.89g narcotic, whereas heroin and cocaine (treated identically) made up approximately 65%. The proper course was to combine the ICE with the heroin and cocaine, giving 22.14g of serious and potent drugs to be sentenced under the Lau Tak Ming [1990] 2 HKLR 370 heroin/cocaine tariff (10-50g band: 5-8 years). The 2.75g of ketamine, being too different to be included, was taken into account at the enhancement stage. Starting point of 6 years' imprisonment, enhanced by 6 months for trafficking in a variety of drugs (a wider market, per HKSAR v Yim Hung Lui Ricky), giving 6 years 6 months before discount. The prior trafficking convictions were not treated as an aggravating factor warranting a deterrent enhancement, given the applicant's drug addiction context confirmed by accompanying possession charges. After a one-third discount for guilty plea, the final sentence was 4 years 4 months' imprisonment. Held: appeal allowed; sentences on both charges set aside; substituted sentences of 4 years 4 months' imprisonment on each charge, to run concurrently; costs of the appeal awarded to the applicant. Sentencing math: starting point 6 years; +6 months enhancement for cocktail of drugs; −1/3 guilty plea discount; final 4 years 4 months.
Legal issues: Consecutive vs concurrent sentencing for drugs found at different locations on the same day · Choice of sentencing tariff under the combined approach for cocktail drugs · Treatment of ketamine when applying combined approach to cocktail drugs · Whether prior convictions for trafficking should be treated as aggravating
Outcome: Appeal allowed; sentences on both charges set aside and substituted with concurrent sentences of 4 years 4 months' imprisonment; costs of the appeal awarded to the applicant.
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