Criminal Appeal No. 177 of 1997
Comparison between Hong Kong and UK drugs legislation and guideline cases on heroin and ecstasy.
UK guidelines should not be followed.
Properties of ecstasy considered.
Guidelines for sentencing for trafficking in ecstasy:
Up to 25 grammes - entirely within the discretion of the sentencer
Over 25 to 400 grammes - two years to four years
400 to 800 grammes - four years to eight years
Over 800 grammes - eight years and upwards
For very small quantities immediate custodial sentence for first offenders may not be necessary.
For more than 800 grammes, arithmetic progression to be avoided.
Increase of sentence is justified for importation, manufacture or other aggravating circumstances.
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
1997, No. 177
Coram: Hon Power, V.-P., Mortimer, V.-P. and Mayo, J.A.
Date of Hearing: 27 March 1998
Date of delivery of Judgment: 26 May 1998
J U D G M E N T
Mortimer, V.-P. (giving the judgment of the Court) :
1. On 11 March 1997 the appellant pleaded guilty before Stuart Moore J (as he then was) in the Supreme Court to an offence of trafficking in tablets and tablet fragments containing about 733 grammes of 3,4-methylenedioxy-methamphetamine hydrochloride. There were 11,050 whole tablets and a quantity of fragments. These drugs are known as MDMA and colloquially as ecstasy.
2. The judge took 20 years as his starting point which he reduced to 12 years after taking into account the plea of guilty and other mitigating factors. The appellant appeals against that sentence with leave.
3. On the day of the offence the appellant arrived at Kai Tak Airport from the Netherlands. After passing Immigration, he was stopped at the Luggage Inspection Counter in the Customs Hall. He and his luggage were searched. The drugs in the indictment were found.
4. In answer to the customs officer, he said Ah Chong made arrangements for him to go to the Netherlands on 9 August 1996. In the Netherlands he met Mike who asked him to bring the drugs back to Hong Kong for a reward of HK$30,000. Mike made arrangements for the appellant to stay in a Hilton Hotel in the Netherlands and the dangerous drugs were delivered to him there. The arrangement in Hong Kong was for the appellant to await a phone call from Ah Chong. No payment had been made to the appellant before his arrest.
5. When sentencing the judge said about the drug
"... It is a drug that is relatively new to Hong Kong, at least in these huge quantities, and sentences imposed should be designed to stop this new drug before the drug becomes too prevalent here. Europe is well-acquainted with its dangers and so is the United States, and it would probably, unless I pass a deterrent sentence upon you, be prevalent here. I am not going to draw any fine distinctions between Heroin or Cocaine and Ecstasy. I have not the slightest doubt that the English Court of Appeal was right when it said that no distinction should be drawn. That was decided in Regina v Warren and Beeley 1 CAR, page 233. I refer to it because you may well wish to challenge my decision in the Court of Appeal here. I make it plain that I treat you on exactly the same basis as I would have done if this had been heroin. Ecstasy is a dreadful drug and will not be tolerated in Hong Kong".
6. The judge sentenced on the basis that:
(1) Large quantities of the drug are new to Hong Kong.
(2) Sentences should be imposed to stop abuse of the drug before it becomes too prevalent - See Cons JA (as he then was) in AG v Leung Pang-chiu  HKLR 608 - "Appropriate sentences are necessary to nip the process in the bud".
(3) That the drug is prevalent in Europe and the United States and a deterrent sentence is necessary to prevent it becoming prevalent in Hong Kong.
(4) That fine distinctions between heroin, cocaine and "ecstasy" are not justified so the guidelines for heroin in R v Lau Tak-ming 2 HKLR 370 are appropriate; see R v Warren and Beeley  1 CrAppR 233 where the English Court of Appeal draws no distinction between heroin and "ecstasy".
On this basis the judge took as a starting point 20 years and reduced it to 12 for the plea of guilty and other matters of mitigation.
7. There are two questions for our consideration:
(1) Whether the judge was wrong in principle to adopt the guidelines for heroin laid down by this Court in R v Lau Tak-ming 2 HKLR 370.
(2) Whether the starting point of 20 years imprisonment (reduced to 12) was manifestly excessive in all the circumstances.
Guidelines for "ecstasy"
8. The prosecution has invited the court to consider making sentencing guidelines for the offence of trafficking in MDMA/MDEA or "ecstasy".
9. We accede to this suggestion in the hope that guidelines will encourage judges to pass sentences sufficient to discourage the abuse of this drug but taking into account its properties and its effect on society. Also, guidelines may assist in achieving a greater consistency in sentencing for offences involving this drug.
The first issue - was the judge wrong in principle to adopt the guidelines for heroin laid down by this Court in R v Lau Tak-ming?
10. The guidelines laid down in R v Lau Tak-ming for heroin are well recognised and have been followed without criticism since 1990. There has been no suggestion in this case that they should be varied or revised.
11. In applying the guidelines in Lau Tak-ming to "ecstasy" the judge adopted the reasoning of the English Court of Appeal in Warren and Beeley. This decision is only persuasive but it is necessary to examine the reasons carefully to ensure that they are appropriate to Hong Kong having regard to the UK drugs legislation and the guidelines laid down by the English Court for heroin and other Class A drugs.
12. The necessary comparisons demonstrate at once that the statutory schemes and sentencing guidelines are different in the two jurisdictions. The United Kingdom Misuse of Drugs Act 1971 divides controlled drugs into three classes - A, B and C - depending upon the degree or type of harm involved. "Ecstasy" is not specifically mentioned in any of the classes but is a Class A drug consequent upon the definition in the "compounds" specified in Schedule II paragraph 1(c).
13. Heroin and opium are both Class A drugs. Cannabis, cannabis resin and methaqualone are Class B drugs.
14. The statutory scheme in Hong Kong is quite different. The Dangerous Drugs Ordinance (Cap 134) specifies "dangerous drugs" in Part I of the First Schedule but these drugs are not further categorised. (Parts III and IV contain some modifications not relevant to the present enquiry)
15. In the United Kingdom the broad approach to sentencing has been much influenced by statutory categorisation of the drugs. See Warren and Beeley. The relevant guideline authority is R v Arunguren and others (1995) 16 CrAppR(S) 211 in which the English Court laid down the sentencing guidelines for heroin. These differ widely from those in Lau Tak-ming. For example, for importation of 500 grammes of heroin of 100% purity, Arunguren suggests that the sentence should start at 10 years and upwards. For five kilogrammes or more, the level is 14 years and upwards. The contrast with the Hong Kong guidelines is marked. The uppermost range considered in Lau Tak-ming is for 400-600 grammes suggesting between 15 and 20 years imprisonment. For 500 grammes, therefore, the starting point is 17 or 18 years. Five kilogrammes lie outside the Lau Tak-ming guidelines and would attract about 25 years imprisonment.
16. The decision in Warren and Beeley is based on the premise that the same criteria should apply to "ecstasy" as to heroin on the classification in the Misuse of Drugs Act 1971. See Taylor LCJ at 236 to 237:
"In applying the criteria in what way we consider that the tariff in regard to offences concerning Ecstasy will be maintained substantially at the same levels as in relation to the other class A drugs. It is to be assumed, since Parliament has so classified the drugs, that drugs within one class are to be regarded similarly."
17. In Arunguren's case the same approach was assumed - that all Class A drugs should be dealt with at substantially the same level. The same principle is applied to Class B drugs:
"As in relation to class A drugs ... the court should not attempt to distinguish between different drugs included by Parliament in class B on the basis that one such drug was more or less pernicious than another." Per Bingham LCJ in R v Wijs, The Times 21 May 1998.
When considering English cases, it must be borne in mind also that the maximum sentences for the different classes of drugs vary.
18. The absence of classification in the Hong Kong Ordinance has made it necessary for this Court to consider the properties and harmful effects of individual drugs in fixing the appropriate sentence and recommending guidelines. See, for example, the enormous differences in the level of sentence suggested in R v Lau Yiu-nam  HKLR 954 for opium and in R v Lau Tak-ming 2 HKLR 370 for heroin, both of which are Class A drugs in the United Kingdom Ordinance.
19. In view of the disparity in the sentencing guidelines and the differences in the statutory framework between the two jurisdictions, there is no sound basis upon which the Hong Kong courts can regard the approach in Warren and Beeley as appropriate in Hong Kong.
20. The approach of this Court has been to consider the degree or type of harm involved in the misuse of...