HKSAR v WAN LAU MEI (尹劉美)

COURT OF APPEAL
CACC 389/2013
Hon Stock VP and McWalters J

Date of Judgment: 21 March 2014

Date of Handing Down Reasons for Judgment: 27 March 2014

Counsel for the Respondent: Francis Lo SADPP

Counsel for the Applicant: James H M McGowan

Criminal law and procedure – Sentencing – Dangerous Drugs – Trafficking –

Cocaine totaling 10.62 g – 2.75 g ketamine – 6.05 g “ICE” – 5.47 g heroin – Different
quantities of drugs found in defendant’s possession on same day but at different
locations to be taken into account collectively – Sentencing tariff for the most
potent drug is taken only if it makes up a significant proportion

The applicant appealed against the sentence in respect of two counts of drug
trafficking where different quantities of drugs, including cocaine totaling 10.62 g,
2.75 g ketamine, 6.05 g “ICE” and 5.47 g heroin, were found in her possession on the
same day but at two different locations. She was sentenced to 1 year 4 months’
imprisonment for 2 g cocaine found in the first location and 4 years 8 months’
imprisonment for the rest of the drugs found in the second location. The second
charge was to run consecutively to the first sentence.

In respect of the second charge, the combined approach was adopted so that one
sentencing tariff would be used followed by an upward adjustment to reflect the
quantities and seriousness of other drugs. The sentencing tariff for ICE was taken
because it was the most potent narcotic among the four drugs.

Two issues were raised in this appeal:

(a) whether the judge erred in considering the quantities found at different locations
separately; and
(b) whether the judge erred in taking the sentencing tariff for ICE.

Held, appeal allowed:

(1) The two offences should be regarded as representing one occasion of
possession of the total amount of drugs and sentences should be imposed on both
offences for that total, making the sentences concurrent with one another. 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 also ensures that the final sentence is not
artificially inflated. [29]-[30]

(2) The judge was correct in deciding to adopt the combined approach.
Nonetheless, the sentencing tariff for the most potent drug is taken only if that drug
makes up a significant proportion of the total quantity of drugs being trafficked. In
the present case, ICE made up only approximately one quarter of the total quantity of
the narcotic but the heroin and cocaine, which are treated identically for sentencing
purposes, made up approximately 65% of the total narcotic. The court held that the
heroin/cocaine tariff should have been used. [35]-[37]

(3) After reviewing other aggravating factors and mitigating factors, the court
concluded that, before discount for the plea of guilty, the appropriate sentence for
each charge was 6 years 6 months’ imprisonment, of which 6 months’s imprisonment
was an upward adjustment for the ICE and ketamine. The final sentences were 4 years
4 months’ imprisonment for each charge which shall be served concurrently. [41]-[44]