HKSAR v. Chan Chui Man

CACC 427/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 427 OF 2013

(ON APPEAL FROM HCCC 424 OF 2013)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.The applicant sought leave to appeal against the sentence of 6 years and 4 months’ imprisonment imposed upon her by Deputy High Court Judge Woo on 4 December 2013 following her conviction on her plea of guilty to an offence of unlawfully trafficking in dangerous drugs on 22 May 2013 in domestic premises in Yuen Long in the New Territories, namely 3.23 grammes of cocaine, 2.39 grammes of methamphetamine hydrochloride (“ice”) and 160.78 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we dismissed the application and said that we would give our reasons in due course. That we do now.

Facts

2.In pleading guilty to the charge, the applicant accepted that about 19.15 hours on 22 May 2013 a police officer had followed a man into premises of which the applicant was the tenant at Ground Floor, 16 Wang Lok Street, Yuen Long. 

3.A search of the living room revealed the presence of the substances which, on analysis, were determined to be the dangerous drugs the subject of the charge.  In a drawer of a closet were found 26 plastic bags and 33 tissue paper packets of ketamine, 10 plastic bags of ice, 19 plastic bags of cocaine, an electronic scale, many other re-sealable plastic bags, a dehumidifier, $1,710 and a pink straw. 

4.Under caution, the applicant said “Being penniless, I intend to make quick money to help support the living by selling the dangerous drugs.  Do give me a chance.”  In a video recorded interview conducted under caution of the applicant the following day, the applicant admitted that she had purchased 300 grammes of ketamine and a small amount of cocaine and ice for several thousand dollars.  She bought 3 different types of drugs so that she could provide a choice for her customers.  She had packed the drugs into different packages which were to be sold at different prices.  She said that she could earn $1,000 odd from selling the drugs which had been seized.

5.The applicant accepted that the cache of dangerous drugs had a street value of about HK$32,003.

Reasons for Sentence

6.In his reasons for sentence, the judge noted that the applicant was a 27-year-old divorcee drug addict.  He observed that she had been before the courts on 7 occasions, the majority of which were in respect of offences related to possession of a dangerous drug.

7.The judge stated that he rejected mitigation advanced on behalf of the applicant that part of the dangerous drugs cache was for her own use.  In the course of mitigation the judge had indicated that, without evidence, he would not accept that submission, namely that the applicant consumed daily 0.5 grammes of ice, 1 gramme of cocaine and 3.5 grammes of ketamine.  Nevertheless, counsel for the applicant indicated that he did not seek to advance evidence in a Newton hearing.

8.Having noted that the charge concerned three different kinds of dangerous drugs, the judge said that this Court had identified two different approaches to imposing the appropriate sentence of imprisonment in those circumstances :[1] 

“ namely the individual approach and the combined approach. The individual approach is to look at each component of the cocktail or batch and then to sentence by adding up the different sentences relevant to each individual drug. The combined approach involves the calculation of the applicable sentence for the more or most serious drug in terms of potency, then to take into account significant quantities of other and less serious drug. Whichever approach is appropriate depends on the circumstances of the case, though the combined approach will often be the better one to enable the judge to sentence fairly, realistically and in a commonsense manner.” [Italics added.]

9.Having said “I will first check the sort of sentence that the defendant may face by using the individual approach”, the judge referred to the guidelines for sentence provided in the judgments of this Court for the respective dangerous drugs.  Then, the judge stipulated starting points for sentence of 2½ years’ and 3 years’ imprisonment for the 3.23 grammes of cocaine and the 2.39 grammes of ice respectively.  Next, he stipulated a starting point for sentence of 7½ years’ imprisonment in respect of the 160.78 grammes of ketamine.  Finally, he noted that the aggregate of those three sentences was 13 years’ imprisonment.  That, he said was “on the high side for the quantities of drugs found in this case as a whole.”

Starting point

10.Noting that the applicant was a drug addict herself and that she was “apparently trying to sell drugs in order to feed her habit and that was at the expense of spreading the evil amongst others”, the judge stipulated an overall starting point for sentence of 9½ years’ imprisonment.

Discount

11.For her plea of guilty, the judge afforded the applicant a discount of one third from that taken as the starting point for sentence.

Sentence

12.Accordingly, the judge sentenced the applicant to 6 years and 4 months’ imprisonment.

Ground of appeal against sentence

13.The sole ground of appeal against sentence advanced by Mr H Y Wong on behalf of the applicant was that the overall starting point taken for sentence stipulated by the judge of 9½ years’ imprisonment was too high, given that the quantities of cocaine and ice were relatively small.  He submitted that the judge had erred in adopting starting points of 2½ years’ imprisonment for cocaine and 3 years’ imprisonment for ice. Those sentences were too high.  It was to be inferred that the judge had regarded the lower of the two sentences stipulated in the range of sentences in the appropriate band of sentence set out in the guidelines as a minimum sentence.  That was an error.  The judge had a discretion in sentencing.  In consequence, the judge erred in stipulating an overall starting point of sentence of 13 years’ imprisonment.  It was contended that, having regard to the relatively small quantities of cocaine and ice, he should have exercised his discretion and adopted lower starting points for those dangerous drugs.

A CONSIDERATION OF THE SUBMISSIONS

14.Although the judge did not say so in terms, having stated that he proposed to “check” the appropriate sentence by first using the ‘individual approach’, it is clear that is the basis upon which he then imposed sentence.  There is no dispute between the parties that is what the judge did and that was the appropriate approach.

15.Mr Andrew Li, for the respondent, submitted that, although he accepted that a judge has a discretion to adopt a lower starting point for sentence than that which could be calculated by application of an arithmetic approach to the sentencing guidelines, there were aggravating factors in the commission of the offence to which the judge made no reference.  First, in trafficking unlawfully in three different dangerous drugs the applicant, as she admitted in effect under caution, was able to reach a “wider market” of drug abusers.[2]  Secondly, the applicant had been released from Drug Addiction Treatment Centre only two weeks before the commission of the offence.

16.No issue was taken with the starting point of 7½ years’ imprisonment stipulated by the judge for trafficking unlawfully in 160.78 grammes of ketamine.  We were satisfied that was the appropriate starting point to be taken for sentence in respect of the ketamine. At issue were the starting points taken by the judge for trafficking unlawfully in 3.23 grammes and 2.39 grammes of ice, respectively 2/12 years and 3 years’ imprisonment.

17.In HKSAR v Yeung Kam Chun[3] a differently constituted division of this Court rejected the submissions of the respondent that the guidelines for sentencing for trafficking unlawfully in ice articulated in the Attorney General v Ching Kwok Hung[4] were to be interpreted as requiring a judge to impose a minimum sentence of three years’ imprisonment.  In the judgment of the court Yeung JA, as he was then, said :[5]

“ We do not read Ching Kwok Hung in that way. For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”

18.In that case, the judge had imposed a sentence of 2 years’ imprisonment after trial for the offence of trafficking unlawfully in 1.59 grammes of ice.  Here, the judge stipulated a starting point for sentence of 3 years’ imprisonment for trafficking unlawfully in 2.39 grammes of ice.

19.Although the quantities of those two drugs are relatively small, nevertheless they are by no means insignificant.  We were satisfied that those sentences fell within the range of sentence to be imposed for trafficking unlawfully in those quantities of those respective dangerous drugs.

20.Having identified, for the purpose of stipulating the overall starting point of sentence, the fact that the aggregate of the individual stipulated starting points taken for sentence was 13 years’ imprisonment, as Mr Wong submitted it was appropriate for the judge to take into account that the guidelines for sentence articulated by this court in respect of cocaine and ice “..are biased with relatively heavier sentences imposed on trafficking in lesser amounts”.[6]  So, given that the guidelines for sentence in respect of cocaine and ice, although different in detail, have broad similarities, in order to check the relevance of the individual starting points for sentence to the aggregate sentence of 13 years’ imprisonment, regard might be had to the calculation of sentence based on the aggregate of the quantities of cocaine and ice, namely 5.62 grammes on the assumption that the aggregate quantity was, on the one hand, ice and on the other hand cocaine.  On that basis, the starting point for sentence of 5.62 grammes of ice would be about 5 years’ imprisonment, whereas for that amount of cocaine would be about 3½ years’ imprisonment.  On either basis, if added to the starting point for trafficking unlawfully in ketamine of 7½ years’ imprisonment, an aggregate sentence of less than 13 years’ imprisonment results, namely in the range of 11 to 12½ years’ imprisonment.  The proportion of the quantity of ice to cocaine was in the ratio of 3:4.  That suggests that a more relevant figure for the judge to have had recourse to, in determining totality of sentence, was an assumed aggregate sentence of 11½ to 12 years’ imprisonment.

21.Although the fact that the applicant trafficked unlawfully in three different dangerous drugs is by itself an aggravating factor in the commission of the offence, a more important aggravating factor was the fact that the applicant trafficked unlawfully in both ice and ketamine.  In combination, they pose a greater harm to the abusers than either taken alone.[7] Whilst it is the fact that the different dangerous drugs were packaged for sale separately, clearly they were available for sale together so that there was a potential, as Mr Wong accepted, that they could be combined readily.  On the other hand, as Mr Andrew Li submitted, there was a considerable imbalance between the quantities of ketamine and ice, which implied a limitation on the potential combined use of the two dangerous drugs.

CONCLUSION

22.On any view, the judge was correct to describe the aggregate sentence of 13 years’ imprisonment as “on the high side”.  For the reasons set out earlier, we take the view that his reference to the aggregate sentence of 13 years’ imprisonment, without the suggested qualification, was capable of being misleading.  However, as we have already noted, the judge did not advert to the aggravating factor of the availability for sale of both ketamine and ice and, in particular, the exacerbated deleterious effects of the two drugs when taken in combination.  In the result, although we regard the starting point for sentence stipulated by the judge of 9½ years’ imprisonment as on the high side, we are satisfied that it was within the range of sentence that lay within the judge’s discretion.  Accordingly the application for leave to appeal against sentence is dismissed.

Mr Andrew Li, SPP, of the Department of Justice, for the respondent

Mr Wong Hay Yiu, instructed by H. L. Wong & Co., assigned by Director of Legal Aid, for the applicant

[1] See: Appeal bundle p 4 line E to I.

[2] HKSAR v Yim Hung Lui Ricky (CACC 266/2011; unreported, 13 February 2012) at paragraph 11.

[3] HKSAR v Yeung Kam Chun (CACC 427/2004; unreported, 8 March 2005).

[4] Attorney General v Ching Kwok Hung [1991] 2HKLR 124.

[5] HKSAR v Yeung Kam Chun, paragraph 17.

[6] HKSAR v Chan Yuk Leong (CACC 318/2013; unreported, 8 April 2014).

[7] HKSAR v Chan Yuk Leong (CACC 318/2013; unreported, 8 April 2014) at paragraph 25 citing HKSAR v Cheung Kwok Leung [2003] 3HKLRD 542 at paragraphs 30-32.