FACC No. 6 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 6 OF 1998 (CRIMINAL)
(ON APPEAL FROM CACC No. 364 OF 1997)
||MARK ANTHONY SEABROOK
||HONG KONG SPECIAL ADMINISTRATIVE REGION
||Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Lord Nicholls of Birkenhead NPJ
Date of Hearing: 4 March 1999
Date of Handing Down: 11 March 1999
J U D G M E N T
Chief Justice Li:
1. I agree with the judgment of Mr Justice Bokhary PJ.
Mr Justice Litton PJ:
2. I agree with the judgment of Mr Justice Bokhary PJ.
Mr Justice Ching PJ:
3. I agree with the judgment of Mr Justice Bokhary PJ.
Mr Justice Bokhary PJ:
4. It is only in the rarest of cases that an appeal against sentence will reach this Court. This is such a case: there being conflicting decisions of the Court of Appeal on a matter of sentencing principle. In granting leave to appeal to this Court, the Appeal Committee certified the involvement of two closely related points of law of great and general importance. They are the points raised by these two questions of sentencing principle:
(1) Do sentencing guidelines which reduce sentences ever benefit even those who were sentenced before the guidelines were laid down? (By a person being "sentenced", I mean his having a sentence passed upon him at first instance.)
(2) If so, in what circumstances?
In June last year a division of the Court of Appeal answered the first question in the affirmative, and reduced a sentence in circumstances very similar to those of the present case. But one month later the division of the Court of Appeal from whose judgment this appeal is brought answered the same question in the negative, refused to reduce this appellant's sentence, and said that the other division's decision was per incuriam. The Appeal Committee granted the appellant leave to appeal on these two questions and also on the basis of an arguable case of substantial and grave injustice having been done to him.
5. Mr Mullick for the appellant submits as follows. Sentencing guidelines which reduce sentences do in certain circumstances benefit even those who were sentenced before the guidelines were laid down. And such circumstances include those of the present case.
6. Mr Luk for the respondent submits as follows. Sentencing guidelines, whether they increase or reduce sentences, only apply to persons whose offences were committed after the guidelines had been laid down. But a sentencer has a discretion to take into account sentencing guidelines which reduce sentences even if the guidelines had not been laid down until after the commission of the offence or offences in question. This discretion is, however, possessed only by the sentencer. No appellate court has any such discretion.
7. On 9 May 1997 the appellant was convicted after trial before Deputy Judge Chow in the District Court on three dangerous drugs charges laid under the Dangerous Drugs Ordinance, Cap. 134. The 1st and 2nd charges were of trafficking, contrary to s.4(1)(a) and (3). Both of these offences were committed on 3 September 1996. The 3rd charge was of simple possession, contrary to s.8(1)(a) and (2). This offence was committed on 4 September 1996.
8. The type of drug the subject-matter of the trafficking charges was, to give it its full name, "methylenedioxymethamphetamine hydrochloride". This drug is sometimes referred to as "MDMA". Most commonly it is known as "ecstasy". That is what I will call it.
9. As for the type of drug the subject-matter of the simple possession charge, it was cannabis.
The facts in outline
10. In outline the facts relevant to the appellant's offences were these. At the time the appellant was in his late 30s. He was on a visit to Hong Kong from Britain. On the evening of 3 September 1996 in the coffee shop of an hotel in Kowloon City he offered to sell someone 350 tablets of ecstasy. He added that he had three sample tablets of that drug hidden under a cushion on a sofa in the room. The person to whom the offer was made turned out to be an undercover police officer. So the appellant was arrested. The three sample tablets hidden under the cushion were seized by the police. These three tablets were found to contain 0.20 grammes of ecstasy. They are the drugs the subject-matter of the 1st charge, being one of trafficking.
11. Upon arrest the appellant was immediately taken to Homantin Police Station. There he was seen attempting to discard a piece of paper. It was a luggage receipt issued by the hotel in which he had been arrested. Using this receipt the police recovered a bag belonging to the appellant. There was a cassette tape inside the bag. Hidden in the cassette tape were 349 tablets. These 349 tablets were found to contain 21.95 grammes of ecstasy. They are the drugs the subject-matter of the 2nd charge, also being one of trafficking. The retail value of the 352 tablets of ecstasy covered by the two trafficking charges was in the region $49,000.
12. On 4 September 1996, one day after the appellant's arrest, the police went to the premises in Tsim Sha Tsui where he had been staying and conducted a search there. Doing so they found 7.13 grammes of cannabis hidden inside a sock. These are the drugs the subject-matter of the 3rd charge, being one of simple possession. There is no evidence of their value.
13. Having on 9 May 1997 been convicted after trial, the appellant was on 30 May 1997 sentenced to a total of 4 years, 4 months and 7 days' imprisonment. This total was reached by way of two concurrent terms plus one consecutive term. The two concurrent terms were of 18 months on the 1st charge (trafficking in three tablets containing a total of 0.20 grammes of ecstasy) and 4 years and 4 months on the 2nd charge (trafficking in 349 tablets containing a total of 21.95 grammes of ecstasy). The consecutive term was of 7 days on the 3rd charge (simple possession of 7.13 grammes of cannabis).
14. Sentencing guidelines laid down by the Court of Appeal for the assistance of sentencing judges are common and useful. But at the time when the appellant was sentenced in the District Court, no such guidelines existed in respect of ecstasy.
The sentencing judge's approach
15. Deputy Judge Chow's attention was however drawn to the decision of Leong J (as he then was) in R. v. Dullage  2 HKCLR 116, an appeal from the Magistrate's Court to the High Court. Leong J took the following view as to sentences for trafficking in ecstasy. They should be considerably higher than sentences for trafficking in cannabis or methqualone (for which the Court of Appeal laid down guidelines in AG v. Chan Chi Man  HKLR 221). And they should be almost as severe as sentences for trafficking in heroin (for which the Court of Appeal laid down guidelines in R. v. Lau Tak Ming  2 HKLR 370).
16. In sentencing the appellant, Deputy Judge Chow followed the Dullage approach. He noted that the Lau Tak Ming guidelines provided for a starting point of 5 to 8 years for trafficking in between 10 and 50 grammes of heroin. The appellant's conviction under the 2nd charge was for trafficking in 21.95 grammes of ecstasy. The judge took the view that 51/2 years "would be justified" under the Lau Tak Ming guidelines for trafficking in that quantity of heroin. On that footing, he considered that "it would not be unreasonable" to sentence the appellant to 4 years and 4 months' imprisonment under the 2nd charge, which is what he did.
The Lee Tak Kwan guidelines
17. Initially the appellant took out an application for leave to appeal to the Court of Appeal against conviction only. Later he withdrew that application. And then on 4 September 1997 he took out an application for leave to appeal, out of time, to that court against sentence.
18. On 31 March 1998 he appeared, without legal representation, before the Court of Appeal. That court adjourned his application pending its decision in the appeal of a Mr Lee Tak Kwan who had arrived in Hong Kong by air on 16 August 1996 and been caught at customs in possession of 733 grammes of ecstasy meant for trafficking. Mr Lee pleaded guilty and was on 11 March 1997 sentenced by Stuart-Moore J (as he then was) to 12 years' imprisonment.
19. On 26 May 1998 the Court of Appeal gave judgment in Mr Lee's case, which is now reported as HKSAR v. Lee Tak Kwan  2 HKLRD 46. The Court of Appeal reduced Mr Lee's sentence to 5 years' imprisonment, and laid down sentencing guidelines for ecstasy trafficking.
20. These guidelines and the reasons for them are set out with admirable clarity (at p.55 C-J) in the judgment of the court given by Mortimer VP:
"The aim must be to achieve a scale of sentencing for trafficking which will deter those who seek to profit out of the abuse of the drug which has no lawful medical use. Those who must principally be deterred are those who import or manufacture the drug or who indulge in its syndicated supply.
At the same time a balanced approach is required. As a drug which is not addictive and has at most a very low level of toxicity, it does not represent a major threat to society when compared with drugs of high toxicity and addiction such as heroin. But this is not to say that it represents no threat. Idiosyncratic effects are known which can, when combined with prolonged exertion or other drugs, lead in isolated cases to serious medical complications and even death. On the other hand such idiosyncratic effects can arise from almost any other drug which is taken.
There is some suggestion that young people...