HKSAR v. Cheung Man Wai

[English Translation – 英譯本]

CACC 189/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2015

(ON APPEAL FROM HCCC NO 496 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT

Hon J Poon JA (giving the reasons for judgment of the Court):

Introduction

1.The appellant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 Laws of Hong Kong.  The particulars of offence alleged that the appellant, on 14 May 2014, at Room 803, Sun Yee House, Sun Chui Estate, Shatin, New Territories, in Hong Kong (“the flat”), unlawfully trafficked in dangerous drugs, namely (a) 11.54 grammes of a crystalline solid containing 11.25 grammes of methamphetamine hydrochloride, (b) 0.91 gramme of a solid containing 0.37 gramme of cocaine and (c) 18 tablets containing 0.09 gramme of methamphetamine.

2.The case was tried before M Poon J (“the trial judge”) on 3 June 2015.  The appellant pleaded not guilty.  After hearing on the special issue (ie voir dire), the trial judge found that the appellant made a confession voluntarily and she admitted the post recorded statement and the record of the video recorded interview as exhibits.

3.Thereupon, the appellant asked the court to take her plea again and she pleaded guilty. Following that, Mr Cheung, her counsel, mitigated on her behalf.

4.The trial judge adopted 8 years as the starting point and gave the appellant a one fourth discount by reason of her plea of guilty entered after the voir dire, resulting in a sentence of 6 years’ imprisonment.

5.On 20 October 2015, a single Justice of Appeal granted leave to the appellant to appeal against the sentence.

6.On 22 December 2015, after hearing, we allowed the appeal and varied the term of 6 years to 5 years and 6 months.  We hereby give our reasons for judgment as follows.

Admitted Facts

7.Around 8.15 pm on 14 May 2014, the police observed that the appellant and a man left the flat.  They stopped the appellant and questioned her.  They took her back into the flat and conducted a house search in her presence.  The following items were found on a television cabinet in the sitting room:

(1)  A red and black plastic box with a lid, inside which there were 11 resealable transparent plastic bags containing dangerous drug in the form of crystals, 4 resealable transparent plastic bags containing dangerous drug in the form of solids, and 18 resealable transparent plastic bags containing red tablets; and

(2)  A yellow and black plastic box with a lid, inside which there were 1 electronic scale, 1 silverish metal soup-spoon, 12 resealable transparent plastic bags and 1 brown notebook (including 1 piece of paper inside it).

8.The appellant was arrested for trafficking in dangerous drugs.  She said under caution that the dangerous drugs found were respectively ice, coke and yaba, with which she would entertain her friends at parties.  Subsequently, in a video recorded interview the appellant admitted that the dangerous drugs found in the flat were bought by her 3 to 4 months ago for HK$2,000.00 from a friend called Ah Wai.  However, she did not answer any questions or give any explanation in respect of other things found in the flat, including the resealable transparent plastic bags, the electronic scale, the spoon and the notebook and its contents.

9.The government chemist confirmed that the dangerous drugs found in the flat consisted of 11.54 grammes of a crystalline solid containing 11.25 grammes of methamphetamine hydrochloride, 0.91 gramme of a solid containing 0.37 gramme of cocaine and 18 tablets containing 0.09 gramme of methamphetamine.  Police information showed that the retail prices of these methamphetamine hydrochloride and cocaine in May 2014 were respectively HK$4,870.00 and HK$895.00.

Mitigation

10.At the time of the offence the appellant was 25 years old.  She had a clear record.  She claimed that she began to take drugs in 2006, and this habit continued until she married in 2008 and then she stopped.  However, in 2012 her marriage was dissolved.  As a result, she was in low spirit and became hooked on drugs again.  She said that part of the drugs involved in this case were for her own use.  She regretted for her transgression of the law this time and hoped that the court could be lenient to her, so that she could reunite with her son, who was only 6 years old, as early as possible.

Reasons for sentence

11.The trial judge had regard to the appellant’s background and mitigating factors. As 3 kinds of dangerous drugs were involved in the present case, namely ice, cocaine and methamphetamine tablets, the trial judge adopted the combined approach as set out in some authorities.  The trial judge considered that the quantity of ice in the present case was larger than those of the other drugs, so she decided the starting point on the basis of this drug.  She bore in mind that for trafficking in 10 to 70 grammes of ice, the appropriate starting point was 7 to 11 years’ imprisonment, and that the appellant’s trafficking in more than one kind of dangerous drug was an aggravating factor.  The trial judge took into account the market values of the drugs involved, the way in which they were packed, their quantities, and the fact that when the drugs were found in the flat, also found therein were equipment for packing drugs and a notebook suspected to be connected with the sale of drugs.  She took the view that in this case, there was no evidence other than the appellant’s words which supported the claim that the drugs were for her own use, and she gave weight to the fact that upon being cautioned, the appellant immediately said that she intended to entertain her friends with the drugs.  Therefore, the trial judge rejected the appellant’s submission in mitigation that part of the drugs involved were for her own use.

12.In the end, the trial judge used 8 years’ imprisonment as the starting point, gave the appellant a one fourth discount for her plea of guilty tendered after the voir dire, and sentenced her to 6 years’ imprisonment.

Grounds of appeal

13.The appellant put forward 4 grounds of appeal:

(1)  The starting point of 8 years set by the trial judge was too high.

(2)  The trial judge erroneously rejected the appellant’s submission in mitigation that part of the dangerous drugs were for her own use.

(3)  The trial judge was wrong in principle in that she, without any evidential support, suspected that the notebook found in the flat was used as a document for recording the sales of dangerous drugs and that the notebook belonged to the appellant, with the result that the facts of the case became more serious.

(4)  In any event, the overall sentence of 6 years’ imprisonment was manifestly excessive.

We shall now examine them one by one.

1^st ground of appeal

14.Three kinds of dangerous drugs were involved in the present case, namely (a) methamphetamine hydrochloride (commonly called ice), 11.25 grammes in weight; (b) methamphetamine tablets, 0.09 gramme in weight, (totally 11.34 grammes); and (c) cocaine, 0.37 gramme in weight.  Generally speaking, the combined approach should be used in sentencing: see HKSAR v Ku Ka Hing [2009] 4 HKLRD 856.

15.According to the combined approach, since the quantity of ice (11.25 grammes) was the largest among the quantities of the three kinds of dangerous drugs involved, the starting point should be determined on the basis of this quantity.  At the time of the commission of the offence in this case, the Court of Appeal had not yet handed down the judgment in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Therefore, the amended sentencing guideline as to ice was not applicable. Based on the sentencing guideline applicable at that time, the starting point for trafficking in ice of a quantity between 10 and 70 grammes should be 7 to 10 years’ imprisonment: see R v Ching Kwok Hing [1992] 2 HKLR 125.

16.The quantity of ice in the present case was 11.25 grammes.  The starting point should be close to the lower limit of the tariff, ie 7 years.  Apart from ice, the appellant trafficked in two other dangerous drugs, but the quantities were not significant.  The appellant was a first offender, without any conviction relating to dangerous drugs.  Although this was not a mitigating factor which could enable the appellant to receive a term of imprisonment shorter than the one specified in the applicable guideline, the court, in considering the length of sentence specified in the applicable guideline, could give it such consideration as is appropriate.  Taking into account all the circumstances of the present case, we consider that the appropriate starting point should be 7 years and 4 months.  The starting point of 8 years used by the trial judge was manifestly excessive.

17.The appellant said that she intended to give the drugs to her friends for taking at parties, so this case can be dealt with as a case of social trafficking.  We consider that even if what the appellant said is true, the starting point of 7 years and 4 months is already at the lower end of the applicable sentencing scale, she cannot possibly receive any lighter sentence for her social trafficking.

2^nd and 3^rd grounds of appeal

18.These two grounds can be dealt with together.

19.In relation to the appellant’s claim that part of the drugs were for her own use which she raised in her mitigation, the trial judge had this to say:

“I took into account the market values of all these drugs, the number of packets, the fact that the drugs were founded in a flat and that in the flat there was equipment for packing drugs, and the presence of a notebook which was suspected to be in connection with the sale of dangerous drugs. Apart from the defendant’s claim that she was a drug user, there was no other evidence in this regard. On the other hand, once she was arrested, she said that she intended to entertain her friends with the drugs. I do not think that the evidence of this case can show that most of the drugs involved were for the defendant’s own use.”

20.Mr Cheung, counsel for the appellant, submitted that the prosecution case was just that in the flat some packing equipment and a brown notebook with a piece of paper placed inside were found, but that the prosecution did not adduce any evidence to prove to whom the equipment belonged, or what was written in the notebook or on the piece of paper, nor was there any evidence which showed that they were records about the sale of drugs or the defendant had knowledge of their contents.  Moreover, the defendant had never confessed that the packing equipment, the notebook and the piece of paper belonged to her, nor had she admitted that they were records about the sale of drugs.  Therefore, he said, there was simply insufficient evidence to prove that:

(1)  the packing equipment belonged to the appellant;

(2)  the notebook and the piece of paper belonged to the appellant;

(3)  the notebook was a record of the sale of dangerous drugs; or

(4)  the defendant had knowledge of the contents of the notebook and the piece of paper.

21.Mr Cheung further submitted that although according to the brief facts, the defendant said that the dangerous drugs were to be used by her for entertaining her friends at parties, this statement did not contradict nor was it inconsistent with her submission in mitigation that she herself would consume part of the drugs.  The first time she came into contact with dangerous drugs was in 2006, and in 2008 she temporarily stopped taking drugs, but in August 2012 she resumed taking the above-mentioned different kinds of dangerous drugs.  On the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116 (§§14-19), the discount to sentence given on the ground of self-consumption should be 10% - 25% of the basic starting point.

22.No Newton hearing was held by the trial judge to deal with the issue of whether part of the dangerous drugs were for the appellant’s own consumption.  Usually, it is unnecessary for a court to conduct a Newton hearing to determine whether part of the dangerous drugs are for self-consumption: see HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 (§12.) In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal held that given the dangers of the abuse of the contention that part of the drugs were for a defendant’s own consumption, the court should look with great care at all the surrounding circumstances in order to decide whether or not to accept this ground of mitigation, and that the factors which should be considered included:

(1)  the quantity and value of the dangerous drugs;

(2)  how the drugs were wrapped and how many packets were found;

(3)  whether the drugs were discovered at a residential unit owned or rented by the trafficker, or whether they were being carried in a public place;

(4)  whether there were, at the scene where the drugs were found, paraphernalia associated with dangerous drugs, including items used for packaging, weighing and diluting drugs and items used for consumption of drugs;

(5)  whether the defendant was an addict;

(6)  the explanation given by the defendant following arrest;

(7)  the defendant’s general means and his ability to pay for the drugs involved in the case otherwise than by trafficking in them; and

(8)  whether the defendant had any criminal record relating to drug offences.

23.In the present case, not only the dangerous drugs in question were found in the flat, also found therein included an electronic scale, equipment for packing dangerous drugs and a notebook.  The reasonable and irresistible inference is that all these were drug-related paraphernalia or equipment.  The trial judge’s suspicion that the notebook was a record about the sale of dangerous drugs is reasonable.  The trial judge obviously had considered all relevant factors before she rejected the contention that part of the drugs were for the appellant’s own consumption.  We agree with the conclusion reached by the trial judge.

4^th ground of appeal

24.Having regard to the appellant’s personal background, including the fact that she was a first offender, and all the circumstances of this case, we considered that 7 years and 4 months was the most appropriate starting point.  After giving her the one fourth discount to which she was entitled on account of her plea of guilty entered subsequent to the voir dire, the sentence became 5 years and 6 months.

Conclusion

25.For the above reasons, we made the order referred to in paragraph 6.

Mr Victor Cheung, assigned by the Legal Aid Department, for the Appellant.

Mr Andrew Li, Senior Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.