HKSAR v. Wong Wai Hong
Read the full judgment text of CACC 213/2013 on BabelCite. This Court of Appeal judgment was delivered on 26 May 2014 before Stock VP, Lunn JA and D Pang J.
Criminal law – drug trafficking – cocktail of drugs – ketamine and cocaine – starting point for sentence – application of tariff – HKSAR v Yip Wai Yin – HKSAR v Yim Hung Lui Ricky – sentencing appeal – whether enhancement for less serious drug inordinate – whether presence of multiple drug types aggravating factor – HKSAR v Cheung Po Cho Tommy – application of one-third discount for guilty plea – whether discount for partial self-consumption appropriate. The Applicant pleaded guilty in the District Court to one count of trafficking in dangerous drugs, namely 10.63 grammes of ketamine and 6.36 grammes of cocaine by pure narcotic content. Police caught him outside his flat and found a box containing the drugs packaged in 39 resalable plastic bags, together with an electronic scale and additional plastic bags. Under caution, the Applicant stated that the items belonged to him and that he sold drugs to earn money, while consuming about half. The sentencing judge rejected that half of the drugs were for personal consumption, finding them mainly for trafficking. He adopted a starting point of 4 years for each drug, then applied a 'combined' approach to arrive at 6.5 years' imprisonment as the overall starting point, gave a one-third discount for the guilty plea (reducing to 52 months), and a further 2-month discount for partial self-consumption, sentencing the Applicant to 50 months' imprisonment. On appeal, the Applicant complained that the sentencing judge wrongly added the two drugs together to achieve a fictional aggregate of 16.96 grammes of cocaine with a corresponding starting point of 5½ years, which was held to be an incorrect application of HKSAR v Yip Wai Yin. Alternatively, the Applicant submitted that the 2½-year upward adjustment for the ketamine was manifestly excessive. Held, granting leave to appeal, treating the application as the appeal, and allowing the appeal with a reduced sentence. The Court of Appeal held that the method of looking at the fictional aggregate of the most potent drug and the sentence thereby warranted, as discussed in HKSAR v Yim Hung Lui Ricky and HKSAR v Yip Wai Yin, is one appropriate way of testing the correctness of the overall starting point. The 4-year starting point for each individual drug was found to be beyond reproach: AG v Pedro Nel Rojas and SJ v Hii Siew Cheng. However, using cocaine as the base, the 2½-year upward adjustment for the ketamine was inordinate. The ketamine quantity was small and only attracted a 4-year starting point because tariffs are proportionately heavier at the lower ends; the 2½-year enhancement had the effect of imposing what amounted to two consecutive sentences, one for each drug. Approaching the matter from another angle, an overall starting point of 6½ years is the starting point for trafficking in 30 grammes of cocaine, which given the considerable difference in seriousness between cocaine and ketamine, was clearly wrong. The Court acknowledged that the presence of more than one type of drug in trafficking may be an aggravating factor (HKSAR v Cheung Po Cho Tommy), but this did not justify the sentence imposed. The enhancement for the ketamine should not have exceeded 1½ years, and the overall starting point should not have exceeded 5½ years. With credit for the guilty plea and a small discount for partial self-consumption, the Court arrived at 42 months' imprisonment.
Legal issues: Correctness of starting point for cocktail drug trafficking involving ketamine and cocaine
Outcome: Leave to appeal granted; application treated as the appeal; appeal allowed; sentence reduced from 50 months to 42 months' imprisonment
Cited by 4 cases · Cites 8 cases
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CACC 213/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 213 OF 2013 (ON APPEAL FROM DCCC 236/2013) ------------------------
------------------------ Before: Hon Stock VP, Lunn JA and D Pang J in Court Date of Hearing: 20 March 2014 Date of Judgment: 26 May 2014 ------------------- JUDGMENT ------------------- Hon D Pang J (giving the judgment of the court): 1.The Applicant pleaded guilty to one count of trafficking in dangerous drugs, namely 10.63 grammes of ketamine and 6.36 grammes of cocaine by pure narcotic content. He was sentenced by Judge G Lam in the District Court to 50 months’ imprisonment. He seeks leave to appeal against that sentence. The Facts 2.Police laying in ambush caught the Applicant outside his flat. A search of those premises uncovered a box containing all the drugs in question. The ketamine was then in four resalable plastic bags; the cocaine in 35 of the same. Also found were one electronic scale and many plastic bags of the kind mentioned. Under caution, the Applicant stated, “All the items in this … box belong to me, half selling half consumption by me, to sell the drugs to earn some money.” Original Sentencing Exercise 3.The judge did not accept that as much as half of the drugs seized were for the Applicant’s own consumption. Based on the way in which the drugs were bagged, and the fact that packaging paraphernalia was discovered on site, the substances were found to be mainly for trafficking. 4.Insofar as it concerns the issue on appeal, the following is what the judge said:
The Complaint 5.Mr Luk for the Applicant complains that the judge was wrong to have added the two drugs together to achieve a fictional aggregate of 16.96 grammes of cocaine, and the corresponding starting point of 5½ years. It is submitted that that was a wrong application of Yip Wai Yin (ibid) which entails nothing more than first setting the applicable term for the more serious drug (cocaine), and then taking into account the quantity of the other drug (ketamine) to arrive at an ultimate sentence. Alternatively, Mr Luk complains that since 4 years was the adopted starting point for the cocaine, the overall starting point of 6½ years must mean that there was an upward adjustment of 2½ years for the ketamine, which is manifestly excessive. He prays in aid the case of HKSAR v Yim Hung Lui Ricky CACC 266/2011. Discussion 6.In Yim Hung Lui Ricky, the sentencing judge adopted an 8‑year starting point for 26.8 grammes of ice. She then adjusted it to 12 years to cover 4.56 grammes of cocaine and 22.67 grammes of ketamine. On appeal, this was held to be wrong because if the sum total of drugs involved were all ice, the tariff sentence would only be 9 years. Conversely, a 12-year starting point would indicate an offence of trafficking in as much as 180 to 185 grammes of ice. This was said to be absurd. As a result, the overall starting point was reduced to 10 years. 7.Similarly, in Yip Wai Yin, at para 9(2) of the reported judgment[1], this Court said that:
8.Looking at the fictional aggregate of the most potent drug and the sentence which would thereby be warranted, is one method of testing the appropriateness of the overall starting point. That method, as well as others, are discussed by this Court, differently constituted in part, in HKSAR v Chan Yuk Leong CACC 318 of 2013, unreported, 8 April 2014. 9.The 4-year starting point is beyond reproach for each of the index quantities of cocaine (6.36 grammes) and ketamine (10.63 grammes): AG v Pedro Nel Rojas [1994] 2 HKCLR 69; SJ v Hii Siew Cheng [2009] 1 HKLRD 1. Using the cocaine as a base, however, we do find the ketamine-required upward adjustment of 2½ years to be inordinate. 10.The ketamine here is small in quantity; it attracted a 4‑year starting point only because the sentencing tariffs are proportionately heavier at the lower ends. To add to that, the 2½-year enhancement did not seek to mitigate the harshness of the situation; but it rather had the effect of visiting the Applicant with a result suggestive of two, by and large, consecutive sentences – one for each drug. 11.Approaching the matter from another angle, the overall starting point of 6½ years is the proper starting point for trafficking in 30 grammes of cocaine. Given the considerable difference in seriousness between cocaine and ketamine, this result seems to us to be clearly wrong. 12.In taking this view, we acknowledge as correct the Respondent’s submission that the presence of more than one type of drug in trafficking may be an aggravating factor: HKSAR v Cheung Po Cho Tommy CACC 233/2005. We do not, however, think that this consideration justifies the sentence. 13.The enhancement for the ketamine should not have been more than 1½ years; and the overall starting point, not more than 5½. That is the starting point which we adopt. Giving credit for the plea of guilty and for the judge’s acceptance that a small part was for self-consumption, we arrive at a sentence of 42 months imprisonment. Conclusion 14.We grant the applicant leave to appeal his sentence, treat the application as the appeal, allow the appeal and reduce the applicant’s sentence to 42 months.
Miss Chan Man Wai, Vivien, SPP of the Department of Justice, for the respondent Mr Luk Ying Wah, Victor, instructed by Sanny Kwong & Co, assigned by Legal Aid Department, for the applicant [1] [2004] 3 HKC 357 | ||||||||||||||||||
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