HKSAR v Cheng Ling Ling
 3 HKLRD 797,  HKCA 636
Court of Appeal
Criminal Appeal No 66 of 2018
Macrae V-P and Zervos JA
6 June, 9 July 2019
Criminal sentencing — trafficking — dangerous drugs — doing act for purpose of trafficking in substance which defendant believed to be dangerous drug — defendant mistakenly believed substance ketamine — reduction in sentence from that which otherwise would be imposed for trafficking in drugs believed to be possessed to reflect fact actus reus brought little if any harm
D pleaded guilty to trafficking in a dangerous drug (Counts 1 and 3) and doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug contrary to s.4(1)(c) and 3 of the Dangerous Drugs Ordinance (Cap.314) (Counts 2 and 4). Police arrested D after finding 82.2 g of a solid containing 24.1 g of ketamine (Count 1) and 81.5 g of a powder containing Phenacetin, a Part 1 poison (Count 2), in her bag. D referred to all the drugs as “K Chai”. Police later found in her home 224 g of a powder containing 62.4 g of ketamine and 13.14 g of cocaine (Count 3) and a substance containing 481 g of a powder that contained neither a dangerous drug or a Part 1 poison and a substance containing 153.2 g of a powder containing Phenacetin, together totalling 634.2 g (Count 4). D said all the drugs in Counts 1, 2 and 4 were ketamine; those in Count 3 were cocaine; and she had been given the drugs and packaged them to pass on to someone else for a monetary reward. The Judge sentenced D on: Count 1 to 3 years’ imprisonment, applying a ketamine to substance ratio of 29%; and imposed the same sentence on Count 2 because D believed she was trafficking in ketamine and the total quantity of the substance was about the same, and presumed to have the same purity, as that in Count 1. On Count 3, the Judge sentenced D to 56 months’ imprisonment; and on Count 4, applying the 29% purity in Count 1 to the 634 g of substance, he calculated a nominal narcotic content of ketamine of 185 g and sentenced D to 5 years’ imprisonment. Adopting a global perspective, and given the drugs comprised 295 g of ketamine and 13.14 g of cocaine, the Judge ordered 6 months of the sentence on Count 1, 6 months of that on Count 2, and 8 months of that Count 3 to run consecutively to each other and to that on Count 4, making a total sentence of 6 years and 8 months’ imprisonment. D appealed against sentence on Counts 2 and 4 only.
Held, allowing the appeal by substituting a sentence of 5 years and 10 months’ imprisonment, that:
- The offence of doing an act for the purpose of trafficking in a substance the defendant mistakenly believed to be a dangerous drug involved the same mental element as that had the substance turned out to be a dangerous drug. There was thus a substantial degree of criminality. The sentence must deter the harm created by the advancement of the culture and business of drug trafficking (R v Afzal and Arshad  13 Cr App R (S) 145, R v Szmyt  Cr App R (S) 69, HKSAR v Li Oi Yee  1 HKLRD 276, HKSAR v Yeung Ho Ting (CACC 154/2016,  HKEC 1845) applied). (See para.22.)
- The court should look at the sentence which otherwise would be imposed for trafficking in the drugs the defendant believed he possessed and accord a reduction to reflect the fact that the actus reus brought with it little or no harm. The greater the difference between what the defendant actually trafficked and what he believed he was trafficking, the greater the discount provided it did not diminish the gravity of the offence or undermine the deterrent effect of the sentence (HKSAR v Li Oi Yee  1 HKLRD 276, HKSAR v Yeung Hoi Ting (CACC 154/2016,  HKEC 1845) applied). (See paras.26–28.)
- Here, the Judge dealt with the first factor of the typical or usual strength of the dangerous drug that D believed she was trafficking, but did not allow for the “no harm” factor, given the actual nature of the substances involved. (See paras.31–33.)
- On Count 2, applying the 29% ketamine purity in Count 1 to the 81.5 g of substance D believed was ketamine, the narcotic quantity would be 23 g and the starting point 4 years and 7 months. This was reduced for plea to 3 years and, since the substance was Phenacetin, further reduced for the “no harm” element to 2 years and 4 months’ imprisonment. (See para.35.)
- On Count 4, based on the 29% ketamine purity in Count 1, the narcotic quantity of the 634 g of substance D believed was ketamine would be 184 g and the starting point 7 years and 7 months. This was reduced for plea to 5 years and because only 153.2 g of the substance was Phenacetin while the rest was a placebo, further reduced to 4 years’ imprisonment. (See para.36.)
- Taking into account totality, 5 months of the term on Count 1, 3 months of that on Count 2, and 6 months of that on Count 4 were ordered to run consecutively to each other and to that on Count 3, making a final sentence of 5 years and 10 months’ imprisonment. (See para.37.)
This was an appeal against sentence for doing an act for the purpose of trafficking in a substance which the appellant believed to be a dangerous drug imposed by Andrew Chan J. The facts are set out in the judgment.