HKSAR v. Tam Yi Chun

CACC 524/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 524 OF 2011

(ON APPEAL FROM HCCC NO. 126 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Stock VP (giving the Judgment of the Court):

Introduction

1.On 4 October 2013, we handed down judgment in this application for leave to appeal conviction and sentence.  We dismissed the application in relation to conviction but adjourned that in relation to sentence in order to receive submissions on the question:

“… whether there is justification, for sentencing purposes, in treating trafficking in very large quantities of methamphetamine hydrochloride differently from very large quantities of heroin and, if there is, whether this Court should provide guidelines in respect of such quantities and, if so, what those guidelines should be.”

The guidelines – heroin and ICE

2.The issue has its genesis in:

(1) different sentencing tariffs for trafficking in the two drugs, as laid down in R v Lau Tak-ming and others [1990] 2 HKLR 370 in the case of heroin and AG v Ching Kwok-hung [1991] 2 HKLR 125 in the case of methamphetamine hydrochloride ( commonly known as ICE); and

(2) the fact that guidelines have been issued for trafficking in very large quantities (over 600 grammes) of heroin (see HKSAR v Abdallah [2009] 2 HKLRD 437), but no guidelines have been issued for trafficking in very large quantities (over 600 grammes) of ICE.

3.The guidelines in respect of heroin came first in time, namely, in May 1990.  The judgment of the Court of Appeal in Lau Tak-ming proposed the following tariffs for imposition after trial:

“(a) Up to 10 grammes of narcotic: 2 to 5 years imprisonment.

(b) Between 10 grammes and 50 grammes: 5 to 8 years.

(c) Between 50 grammes and 200 grammes: 8 to 12 years.

(d) Between 200 grammes and 400 grammes: 12 to 15 years.

(e) Between 400 grammes and 600 grammes: 15 to 20 years.

“Amounts of over 600 grammes falling into the ‘very large quantities’ category. … in appropriate cases which fall into that category, we consider that there can be an upward increase in the ‘cut-off sentence’ … bearing in mind that the maximum sentence provided for by the legislation is life.”

4.In Abdallah, which came before the Court some 18 years after Lau Tak-ming, the Court was concerned about disparity in sentences in the category of very large quantities of heroin and noted the frequency in recent years of seizures of heroin weighing more than 600 grammes.  The time had come for further guidelines to supplement those in Lau Tak-ming, by extending them to cover the most serious trafficking offences.  The guideline starting points for traffickers convicted after trial was there set as follows:

“(i) 600 to 1,200 g – 20 to 23 years imprisonment;

(ii) 1,200 to 4,000 g – 23 to 26 years imprisonment;

(iii) 4,000 to 15,000 g – 26 to 30 years imprisonment;

(iv)  Over 15,000 g – At the sentencer’s disretion.”

5.Ching kwok-hung was decided one year after Lau Tak-ming and the following tariffs for trafficking in ICE were there prescribed:

“(1) up to 10 grammes – 3 to 7 years’ imprisonment;

(2) between 10 and 70 grammes - 7 to 10 years imprisonment;

(3) between 70 and 300 grammes - 10 to 14 years imprisonment;

(4) between 300 and 600 grammes - 14 to 18 years imprisonment;

(5)  over 600 grammes - 18 years’ and upwards.”

In the original judgment, the first category read "up to 12 grammes”, but “12” was a typographical error : see HKSAR v Capitania Edwin F. CACC 28 of 2004, unreported, 11 August 2004.

The present case

6.In the present case, the applicant was convicted after trial of trafficking in 1,916 grammes of ICE.  The sentencing judge said:

“ There is a guideline for heroin of large amounts that was recently passed in March of 2009. Since that judgment it is my experience that judges in the High Court have been following the heroin guideline as the guide also to ‘Ice’. They have done that because no one sensibly advances a proposition that heroin is worse than ‘Ice’ as a dangerous drug. Accordingly I shall follow the guidelines in Abdallah.”

7.He took a starting point of 23 years imprisonment and enhanced it by two years for the international element, thereby arriving at a sentence of 25 years imprisonment.

The complaint

8.The grounds of appeal in relation to sentence attacks the judge’s approach on the basis that it was “wrong in principle as the larger amounts of methamphetamine hydrochloride attract lesser sentence(s) than similar amounts of heroin hydrochloride”; relying largely on the fact that 600 grammes of heroin attracts, according to Lau Tak-ming, a starting point of 20 years’ imprisonment whereas the same quantity of ICE, according to Ching Kwok-hung, attracts a starting point of 18 years’ imprisonment.

9.Counsel for the applicant understandably relies on the decision of this Court, differently constituted, in HKSAR v Chan Po wah and another CACC 179 of 2012, unreported, 26 March 2103.  That too was an application for leave to appeal a sentence imposed by Line J upon two applicants who had pleaded guilty to trafficking in 1,500 grammes and 1,522 grammes, respectively, of methamphetamine hydrochloride.  Line J, sentencing in April 2012, took a starting point of 23 years imprisonment in respect of each applicant, enhanced that to 25 years imprisonment to allow for the aggravating feature of an international element and discounted the resulting term by one third in recognition of the plea of guilty, thereby arriving at a sentence in respect of each applicant of 16 years eight months imprisonment.  In so sentencing the applicants, the judge applied the tariff guidelines in Abdallah.

10.The Court in Chan Po wah held that in applying the Abdallah guidelines to trafficking in ICE, the sentencing judge had erred.  The Court said, at para 19:

“ … it [the guideline for heroin] was simply an inappropriate guideline to employ when sentencing for this drug. The reason the Court of Appeal devised specific guidelines for ICE was because there were a number of differences between the nature and use of the two drugs which made it inappropriate to apply or adapt the heroin guideline to ICE. Of course, since the guidelines were laid down in … Lau tak-ming … they have been revisited in Abdallah specifically to cater for amounts above 600 grammes. No such review of the ICE guidelines has occurred so no revision has taken place in respect of amounts above 600 grammes. Whether it is now time for this to happen is an issue which will have to be considered on another occasion. As a consequence of the judge’s error in applying the Abdallah guideline it now falls for this court to sentence the applicants in accordance with the correct guideline.”

11.By “the correct guideline” the Court referred, not to some tariff guidelines for trafficking in large quantities of ICE, but to the 18 year starting point for trafficking in 600 grammes of ICE and to sentences passed in other cases for amounts similar to those in Chan Po wah. It seems that counsel for the respondent accepted, in the course of argument in that appeal, that other sentencing cases for amounts around 1,500 grammes of ICE “suggested a sentencing range of 21 to 22 years as the appropriate starting point.” (see para 25).

12.What the Court did in Chan Po wah was to take a starting point of 21 years’ imprisonment in respect of each applicant, increased that to 23 years to allow for the aggravating factor of international trafficking and discounted that by one-third to allow for the pleas of guilty; thereby allowing the appeal and substituting sentences of 15 years four months imprisonment.

An apparent anomaly

13.It is against that background that this Court has examined the rationale for the historic distinction in tariffs in respect of trafficking in the two different drugs; and has received written and oral testimony of experts whereby to ascertain whether that rationale holds good today.

14.There is, on the face of it, a strange feature about the ICE guidelines in Ching Kwok-hung, when viewed against those in Lau Tak –ming: it is that the prescribed sentences for trafficking in ICE are higher for quantities up to about 400 grammes to 420 grammes than for like quantities of heroin, whereas for larger quantities of ICE the suggested sentences are lower than those prescribed in the counterpart guidelines for the same amounts of heroin.

15.So, for example, trafficking in 10 grammes of heroin attracts a starting point after trial of five years’ imprisonment whereas trafficking in the same quantity of ICE attracts a starting point after trial of seven years imprisonment; trafficking in 70 grammes of heroin is likely to attract a starting point after trial of about 8½ years’ imprisonment, but trafficking in the same quantity of ICE is likely to attract a starting point of 10 years’ imprisonment.  Conversely, trafficking in 600 grammes of heroin attracts a starting point after trial of 20 years’ imprisonment but the lesser term of 18 years’ imprisonment in the case of ICE.

The original rationale

16.The answer to this apparent anomaly is to be gleaned from a study of the judgment in Ching Kwok-hung.  The extensive citation which now follows not only reveals the rationale for the approach then adopted but, as an adjunct, merits revisiting for its stark reminder of the gravely deleterious effect of this drug, a description which serves to explain why it is that the courts in this jurisdiction impose harsh and unforgiving sentences on those who traffic in this substance.

17.Having received expert evidence, the Court in Ching Kwok-hung said this, at pp 128 - 130:

“The trial judge was very conscious of the fact that this was one of the few cases relating to ICE to come before the courts. … The only previous large seizure in Hong Kong had been in 1983.

…

… Chief Inspector Kruger Young [of the Narcotics Bureau] … was disinclined, because of the then lack of a market in Hong Kong for ICE to give any indication of value. It is however a drug which is causing considerable problems in other countries, particularly in the United States of America. The fact that there is little or no evidence of its general use in Hong Kong, evidence which normally stems from the number of seizures made, does not mean that this Court should not at least attempt, by stressing its serious nature, to provide guidelines to deter those who would seek to deal with it. We respectfully adopt and follow the line taken by Cons JA …in The Attorney General v Leung Pang Chiu [1986] HKLR 608 where he said :

‘It is better to eradicate a bad habit before rather than after it has taken a firm hold.’

ICE has made a start in this Territory. We should attempt to nip that process in the bud.

What evidence there is shows that in 1989 there were two seizures of drugs, this case and one other. It was the Chief Inspector's opinion that these drugs were destined for outside Hong Kong. In 1990 there have been 16 seizures, all of relatively small amounts and thought to be for personal consumption.

…

One-tenth of a gramme of ICE without re-use would be sufficient for three to four of what in the vernacular are called ‘hits’. An ICE addict needs far less of the substance than does a heroin addict. ICE can be used and reused. Its effect lasts between 2 to 12 hours with the average being somewhere in the middle of that period.

…

Dr Leung was of the view that on the basis of use and reuse 10 to 15 ‘hits’ could be obtained from one gramme. It was also his view - and this is echoed in the American publications to which we have been referred – that ICE is more addictive than heroin, a user can be ‘hooked’ by a first-time try.

It is difficult to draw parallels between heroin and ICE, but ICE is one of most powerful stimulants known. … Dr Leung was of the view that if heroin is rated as the No. 1 hard drug then methamphetamine would be in the top three.

Addicts … achieve antisocial behaviour which includes violence…. [The drug] overtaxes the body and causes the body to, in effect, burn itself out. Users commonly have vitamin and mineral deficiencies. There is lowered resistance to disease and prolonged use will cause damage to the organs particularly the lungs, liver and kidneys. Continued use causes a heavy degree of psychological dependence which in turn can lead to a psychotic state, insomnia, anxiety, depression and fatigue. Toxic psychosis, similar to paranoid schizophrenia and delusional states, can result from long-term, or heavy short-term, use. The paranoid disorders associated with it, unlike those associated with the use of cocaine, may persist for days or weeks and at times even longer. Prolonged use can create tolerance resulting in the user having to resort to heavier dosages. … The progressive toxic effects of amphetamine abuse may lead to death or there can be a rapid deterioration of physical and psychological health…

… We are persuaded that ICE is a drug to be taken very seriously indeed. In ways it is more deleterious to its abusers, and to society in general, than is heroin. In our judgment guidelines should emerge now before ICE becomes prevalent in Hong Kong in order to deter both those who would seek to use it and those who seek to exploit the abuser.

…

In our judgment … because of its highly addictive nature, it ease of manufacturer and its intense effect, ICE comes in at the same level, if not slightly above, heroin.

…

Generally, it would be proper for trial courts to bear in mind that the amounts required by the personal abuser, as opposed to the trafficker, are considerably smaller in the case of ICE than they are in the case of heroin.” (Emphasis added)

18.Pausing there, we note that:

(1) ICE was then a relatively new phenomenon to Hong Kong;

(2) there was little or no evidence of its general use in this territory;

(3) there had been few seizures and, of those, all or most were of "relatively small amounts … thought to be for personal consumption”;

(4) the rationale for heavier tariffs in the first three or so bands, as compared with trafficking in like amounts of heroin, was that the ICE addict needed far less of the substance than does a heroin addict; and

(5) there seems to have been to that date few, if any, seizures of very large quantities.

The experience since Ching Kowk -hung

19.Twenty three years have passed since Ching Kwok-hung and the evidence which we have examined establishes that the rationale there explained for the higher tariffs for trafficking in ICE (when compared to like quantities of heroin) in the first few bands holds good today, but that the rationale for the lower tariff (than for heroin) in respect of very large quantities is no longer valid.

20.In this regard, we are particularly grateful for the industry and assistance of Chief Inspector Tan Wing-cheung of the Narcotics Bureau; Dr Ng Po-king of the Forensic Science Division, Government Laboratory; and Dr Tse Man-li, Consultant and Deputy Director of the Hong Kong Poison Information Centre under the Hospital Authority.  Each provided written reports and each assisted this Court with oral testimony.

21.Chief Inspector Tan is responsible for research, monitoring and reporting on trends relating to drug trafficking in, and abuse of, various types of illicit drugs.  He prepared a statement on the trends in, and prevalence of, trafficking in large quantities of ICE in Hong Kong in comparison with the trends in and prevalence of trafficking in large quantities of heroin and cocaine and he did so by producing arrest and seizure figures since 2009.  By “large quantities” we mean quantities in excess of 600 grammes. He produced for us a number of tables but, for the purposes of this judgment, it is necessary to refer to only a few of the figures.

22.In 2009, 2010, 2011, 2012, and 2013, there were, in the case of heroin, 19, 23, 31, 36, 37 seizures respectively for quantities between 0.6 kg and 1.2 kg.  In the same years, in the case of ICE, there were, for the same quantities, respectively three, three, one, 10, and 23 seizures; a dramatic increase in the case of ICE.  A similar trend is discernible with even larger quantities.  So, for example, in 2011 there were four seizures of heroin in quantities between 4 kg and 15 kg and no such seizures of heroin in that range in the year 2013; whereas in 2011 there was one seizure of ICE in that range and yet seven seizures in that range in 2013.  For all cases over 0.6 kg of heroin there was a decrease between 2011 and 2013, inclusive, from 65 seizures to 49; whereas in the same period in the case of ICE, there was a dramatic increase from 13 cases in 2011 to 52 cases in 2013.

23.It follows that the number of seizures of very large quantities of ICE is increasing whereas there is no such obvious increase in relation to heroin although, as the Chief Inspector emphasised, for the latter drug the number of seizures in each year is still large.

24.It follows also that inasmuch as there were few examples of trafficking in ICE in very large quantities before and in 1991, a factor which seems to have informed the apparent anomaly to which we have referred, that picture has changed dramatically, a picture which is the product of a significant increase in recent times in local demand for ICE.

25.This increase in the popularity of amphetamine type stimulants is part of a worldwide phenomenon, most particularly in North America and in East and South-east Asia.  It is not necessary for present purposes to rehearse in detail the reasons for this increase but amongst the reasons are the facts that the manufacture of the stimulants is not limited by the need to cultivate crops under special climatic conditions and that detection of amphetamine abuse is more difficult because the outward signs of addiction are less obvious than in the case of opioids.  The suggestion is that in the case of younger drug abusers, heroin use is leveling off or even declining; although we emphasise, should emphasis be necessary, that if this be so, it warrants no less vigilance and no lighter a sentencing policy in relation to heroin than hitherto.  The Chief Inspector reported also on the significant increase in this region in the use, and in trafficking large quantities of, cocaine.

26.Dr Tse endorsed much of what was said about ICE in Ching Kwok–hung.  It is, he said, usually of a very high purity and can be used or reused readily.  The average abuse dosage for new or infrequent users of the drug is in the range of 0.05 to 0.1 grammes per day; whereas, for this group, the average daily consumption of a heroin user is in the range of 0.25 to 0.7 g. “For such new or infrequent users [of ICE],” he said, “each ‘hit’ can bring about an effect lasting up to 12 hours and they often purchase half a gram to be shared among them, using a single bottle to smoke the ICE together.  This method of abuse may appeal to them socially and can help to spread the abuse of ICE among peer groups and increase the ease in ‘hooking up’ new users up to several of them at a time. In this regard, ICE, in my opinion, is a drug more dangerous to young people than heroin.”

27.As for regular users of ICE, the average daily consumption is in the range of 0.1 to 0.5 grammes; whereas the average daily consumption of a heroin user is in the range of 0.25 to 0.7 grammes.  In that the Court in Ching Kwok hung said that “an ICE addict needs far less of the substance than does a heroin addict,” and that “ICE can be used and reused,” Dr Tse says that if that was the rationale for imposing a heavier sentencing deterrent in respect of  ICE (as we see in relation to the lower bands) it remains a valid rationale.

28.Dr Tse also said that ICE is highly addictive, as addictive as heroin; but it has features in its effect different from heroin and in some respects more alarming and deleterious.  Clinical management of heroin intoxication is simpler compared with management of ICE intoxication in that, for the former, antidotes are available in hospitals which can be administered swiftly and effectively whereas acute ICE intoxication has no antidote and usually induces a state of excitement or confusion with paranoid ideas which, unlike with those suffering from heroin intoxication, frequently causes the abuser to resort to violence.  ICE intoxication usually requires longer, more complex and costly medical treatment than heroin intoxication and in a large proportion of long-term ICE abusers causes psychosis, typically resembling paranoid schizophrenia. Other chronic effects include an increased risk of ischaemic heart disease, acute myocardial infarction, sudden cardiac death, cardiomyopathy, as well as other problems.  ICE abuse by pregnant women increases the rate of pregnancy related complications including fetal death, prematurity, babies with low birth weight, withdrawal syndrome in the newborn and long lasting negative effect on the neurobehavioural development of the baby, continuing into childhood. In short, Dr Tse’s opinion is that "the overall harm of ICE is high among abusive substances and is … assessed to be the same as, if not slightly above, that of heroin.”

29.He notes that at the time of Ching Kwok–hung, there was, according to the judgment in that case, little evidence of the general use of ICE in Hong Kong but, according to Government Laboratory experience, ICE has now become one of the most common drugs of abuse in Hong Kong and the trend is increasing.  Huge quantities are imported for local consumption.

30.A particularly worrying feature of the evidence of both the Chief Inspector and Dr Tse is the increased use of drugs, including ICE, amongst schoolchildren.  There is evidence of the use of ICE by those even as young as 10 years, abuse which is not dictated by economic grouping.  This is therefore a pervasive evil which warrants strong sentencing deterrence.

Analysis

31.The result of this evidence and our acceptance of it, is that there is now no acceptable rationale for a distinction in sentencing for trafficking in large quantities of ICE on the one hand and large quantities of heroin on the other.  Trafficking in large quantities of ICE is, and has for some time since Ching Kwok–hung become a major problem, a problem not reflected by the 1991guidelines.  That fact needs now to be reflected in sentencing.  On the other hand, there remains good reason for rendering sentences heavier for trafficking in the lesser quantities of ICE than for similar quantities of heroin.  It could be said that the logic for smaller quantities should apply as well to the large quantities, but so stiff are the sentences for very large quantities of heroin that it would be difficult to justify still heavier sentences for large quantities of ICE than those prescribed by Lau tak–mingfor heroin.

32.There needs therefore to be an adjustment to the Ching kwok-hung guidelines to bring sentencing for trafficking in very large quantities of ICE in line with the guidelines for trafficking in very large quantities of heroin as intimated by Abdallah.

33.In the light of the evidence we have received, the objective must be to set guidelines which recognise:

(1) as did Ching Kwok-hung, that the ICE addict needs far less of the substance than does a heroin addict need heroin;

(2) that there has in recent years been a dramatic rise in this jurisdiction in the use of ICE and in particular in its use amongst the young for whom the danger is even greater than is heroin; and

(3) that there is no longer a justification for the anomaly or “crossing” point to which we have earlier referred whereby for very large quantities the starting point is lower in the case of ICE than in the case of heroin.

34.Doing the best we can to achieve that objective, we make no change to the Lau Tak-ming guidelines, but we recast the sentencing guidelines for trafficking in ICE by indicating the following tariffs to be imposed after trial:

(1) up to 10 grammes – 3 to 7 years imprisonment;

(2) between 10 and 70 grammes – 7 to 11 years imprisonment;

(3) between 70 and 300 grammes – 11 to 15 years imprisonment;

(4) between 300 and 600 grammes – 15 to 20 years imprisonment; and

(5) for amounts of 600 grammes and over, the same tariffs as are prescribed in Abdallah for those quantities of heroin.

35.These are starting points after trial, in other words before enhancement for aggravating features, if any, and before reduction for such mitigating factors, most commonly in this category of offence, a plea of guilty.  It is still for the sentencing judge to take into account, in application of the tariffs, the degree of involvement of the offender, the previous history if any of narcotic offences and the aggravating fact, where it is present, of international trafficking which includes, for this purpose, trafficking to and from the Mainland.

The present application

36.The question then arises whether the sentence imposed in this particular case lends itself to justifiable complaint. 

37.In sentencing the applicant, the judge applied the Abdallah guidelines, took a starting point of 23 years imprisonment and augmented that by two years to reflect the international element: these were drugs cleverly concealed and on their way through Hong Kong from the Mainland and bound onwards for Japan.  We repeat that in applying the Abdallah guidelines, the judge said:

“Since [Lau tak-ming] it is my experience that judges in the High Court have been following the heroin guideline as a guide also to “Ice’. They have done that because no one sensibly advances a proposition that heroin is worse than ‘Ice’ as a dangerous drug. Accordingly, I shall follow the guidelines in Abdallah.”

38.By “following the heroin guideline as a guide also to ‘Ice’ ”, the judge was clearly referring to the guidelines for very large quantities.  In saying, that “no one sensibly advances a proposition that heroin is worse than ‘Ice’ as a dangerous drug,” the evidence which we have heard and accepted convincingly shows that ICE is indeed at least as dangerous as heroin, if not more so.  But whether the judge was correct in suggesting that all judges have been applying the Abdallah guidelines to trafficking in very large quantities of ICE is less clear.

39.What is clear, however, is that there has, at the appellate stage, been an inconsistency of approach in sentencing for trafficking in very large quantities of ICE and a number of sentences have been substituted upon appeal which are significantly lower than had the Abdallah guidelines been applied. Some of the lower sentences were referred to, and analysed, in HKSAR v Stonanovic Milka, CACC 110 of 2010, unreported, 3 November 2010.  This inconsistency is unfortunate because, although there must always be room for adjustment to give effect to the individual justice of a case and although judges may “justifiably give allowance” for mitigating factors and for “any matters personal to a prisoner” (Ching Kwok-hung at p 130I), the truth is that, for policy reasons, the latitude for personalised sentencing in drug trafficking cases is much limited, wherefore “consistency of sentencing is … especially important in drug cases … where it is so easy for an offender to feel he has been treated unequally”: per McWalters J in Chan Po Wah at para 22.

40.A case close to the present in terms of quantity of drugs and one which had in mind the analysis in Stojanovic Milka, is HKSAR v Lee Kwok Wai and another, CACC 87 of 2009, unreported, 4 November 2011.  That was a case of trafficking in 1.896 kg of ICE and carried an international element.  The judge took a starting point of 22½ years imprisonment.  In the case of the first applicant, he enhanced that to a term of 24 years imprisonment to give effect to the international element; and in the case of the second applicant, the enhancement was to 25 years imprisonment because of the greater role played by the second applicant, described by the sentencing judge as “running this enterprise, giving the orders and seeking to keep yourself at a distance from the execution of the plan and the risks involved in that.”  This Court was satisfied that the starting points and the ultimate sentences were unimpeachable.

41.We think that a just way of approaching the present application is to recognise that even if the Abdallah guidelines have in practice been applied by first instance judges to trafficking in very large quantities of ICE, that has not been the consistent approach at the appellate level. Further, given the fact that Ching Kwok hung provided a tariff of 18 years imprisonment for trafficking in 600 grammes of ICE, whereas Lau Tak-ming provided a tariff of 20 years for trafficking in 600 grammes of heroin, it is difficult to see how a faithful adherence to Ching Kwok-hung could - at least in the initial stages on and after the 600 gramme point - properly result in a strict application of Abdullah to ICE.  For present purposes, therefore, the applicant should have the benefit of the uncertainty and be sentenced on the basis that at the time of the offence of which she was convicted, the Abdallah guidelines did not apply to trafficking in very large quantities of ICE and that a slightly lower tariff was applicable at that level.

42.In applying Abdallah to this case, the sentencing judge was perhaps slightly generous in adopting a 23 years starting point, though not manifestly lenient. But for reasons which we have provided, it was an error of principle at that date to apply the Abdallah guidelines; even though we now endorse the sentencing judge’s assessment of the relative effects of the two drugs.

43.Taking Lee Kwok-wai as an appropriate comparator, we will apply in this case a starting point of 22½ years imprisonment; that should be aggravated by two years for the international element, with a resulting sentence of 24½ years imprisonment.  That is but a six month difference compared to the sentence which has been imposed in the court below, which would be “tinkering” if the basis of our interference was that the sentence was manifestly excessive; but since our decision turns on an issue of principle, we are satisfied that the alteration is warranted.

Result

44.Accordingly, the application for leave to appeal sentence is granted, we treat the hearing of the application as the appeal, we allow the appeal, set aside the sentence of 25 years imprisonment and substitute a sentence of 24 years six months imprisonment.

45.It follows from this judgment that for offences committed after it is handed down, the revised tariffs which we have particularised for trafficking in ICE, including those for trafficking in quantities of over 600 grammes, should be applied.

Mr William Tam, DDPP of Department of Justice, for the Respondent

Mr John Reading, SC and Mr David Boyton, instructed by Littlewoods, for the Applicant