HKSAR v. Gurung Laxman

CACC 385/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 385 OF 2015

(ON APPEAL FROM DCCC 501 OF 2015)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.The appellant was tried before District Judge Sham (“the judge”) on a charge sheet containing one count of trafficking in a dangerous drug, namely 7.23 grammes of a crystalline solid containing 7.09 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 13 October 2015 he was convicted by the judge and sentenced to 5 years and 6 months’ imprisonment.

2.On 5 November 2015, the appellant filed a Notice of Application for Leave to Appeal against both his conviction and sentence.  The application was heard on 5 October 2016, and the appellant was granted leave to appeal both his conviction and his sentence.[1]

The prosecution case

3.It was the prosecution case that at around 9:15 am on 2 March 2015, the police went to a makeshift shelter in the sitting-out area at the rear of Battery Street, Yau Ma Tei.  The shelter was open to public view, with no door or window.  It consisted of wooden planks erected around a sofa which appears to have been used as a bed.  The appellant was sitting on the sofa with another man when the police arrived and when the police instructed him to stand up they found he had been sitting on a packet of drugs. 

4.The drugs were in three bags; one larger bag containing most of the drugs, and two smaller bags.  All three packets were wrapped together in tissue paper to form a single packet and then bound with tape.  The two small packets contained a total of only 0.61 grammes of a solid containing 0.60 grammes of “Ice” whilst the larger packet was alleged to have contained 6.62 grammes of a solid containing 6.49 grammes of “Ice”.[2]

5.At the time of his arrest, the appellant was also found in possession of a black iPhone 4 and HK$100 in cash.  It was an admitted fact that according to an officer of the Narcotics Bureau the estimated street value of the drugs would have been around HK$2,863. 

6.It was also an admitted fact that the appellant was in possession of the drugs but that he denied trafficking in them.  The trial turned on the issue of whether the appellant possessed the dangerous drugs for the purposes of trafficking in them or whether he possessed them for his own consumption. 

7.It was part of the admitted facts that the appellant was a drug abuser prior to his admission to Christian Zheng Sheng College from 13 May 2002 to 14 July 2005.  He had also entered residential drug rehabilitation with the St. Stephen’s Society from 6 July to 17 July 2012 and from 19 July to 12 August 2012. 

8.The prosecution relied upon the quantity and estimated value of the dangerous drugs to show that the appellant possessed them for the purpose of unlawfully trafficking in them. 

The defence case 

9.The appellant elected to give evidence at trial.  He said that he was 32 years of age and had been a drug abuser since 1999 when he was 16 years of age.  He had completed Form V at the Christian Zheng Sheng College to which he had been referred by a social worker in order to quit his drug habit.  He thereafter remained free of drugs until 2010 when he relapsed and again began using drugs.  He then attended the St Stephen’s Society but after treatment there he was still unable to completely break free of his drug habit. 

10.At the time of the offence he was consuming drugs at home four to five times a week, consuming almost 1 gramme of drug on each occasion.  He would take the drug before he went to work and he would then be able to focus normally.

11.The appellant testified that on the night before the day of his arrest, his friend had introduced him to a new dealer who said he could provide him with drugs.  The appellant then paid this person HK$1,300 and went home to wait for the drugs to become available.  At around 3-4 am the next morning, the appellant received a call and was told to go to the sitting-out area at Battery Street in order to collect the drugs.  When he arrived at around 5 am, a Chinese male gave him the packet of drugs and said it contained two extra packets as a bonus because it was the appellant’s first purchase from this dealer.  After he had received the drugs, the appellant intended to go home to consume some of them but had stayed to talk with a friend and, because he was suffering from withdrawal symptoms, had fallen asleep on the sofa.

12.The appellant said the drugs he purchased would be sufficient to last him one week and this was how he normally purchased drugs.  It was easier for him to purchase drugs to last him for a week to 10 days rather than on a day to day basis.  He could keep the drugs at home where he could use them without risk of detection.

13.In relation to his finances, he stated that he worked part-time at a garage and earned approximately HK$8,000 to HK$9,000 a month.  He would sometimes give his parents HK$2,000 to HK$3,000 a month but he would make payments to his parents only “once in a while”.

14.In cross-examination it was put to him, which he denied, that it was he who had wrapped the drugs in tissue paper and tape.  It was also put to him, and which he also denied, that the drugs were his and that he intended to sell them in order to fund his addiction. 

The judge’s Reasons for Verdict

15.In his Reasons for Verdict the judge set out the prosecution case noting that substantial parts of it were not in dispute and that:

“The trial turns on a very narrow issue: whether the defendant had the drugs for the purpose of, as the prosecution put it, trafficking or, as the defence say, for his own consumption.”

16.After summarizing the appellant’s evidence the judge said:

“Having heard the evidence of the defendant, I do not think that the defendant has been fully frank with the court. As far as his account is concerned, some are true, some are not.”

17.He then went on to say that he rejected the appellant’s claim that the drugs were for his own consumption because, he said, “his behaviour was not consistent with those who buy drugs for own use”.  The judge said the mentality of drug users is different from that of drug traffickers.  Consumers of drugs would usually want to stay outside for as short a period as possible once they have bought the drugs.  In order to avoid detection by law enforcement officers they would want to find a safe place to hide the drugs once they have acquired them.  Traffickers, on the other hand, have to remain outside in order to carry on their trade. 

18.Applying this analysis to the appellant, the judge then said:

“22. Now, looking at what the defendant did after he got the drugs, he tells the court that he got there at 5-ish. I do not know what time he got the drugs, but it is clear from the evidence that after he got the drugs he fell asleep for some time and then when he woke up he stayed there and talked to his friends.

23. He was specifically asked about this by his counsel. Defence counsel asked him ‘why you decided to sit inside the hut, after having received the dangerous drugs’. His answers were: the dangerous drugs were bought in that area; ‘my friend was also there’; he ‘just sit and talk with my friend’.

24. I see no evidence to suggest that he had the intention at that time to go home. As he had told the court, he was at that time suffering withdrawal symptom, feeling sleepy and he also said he consumed drugs at home. I am just wondering why he did not go home at that time after getting the drugs. Clearly, he was there for other purposes.” (Emphasis added.)

19.The appellant’s decision to remain out with the drugs he had just acquired rather than to immediately take them home was clearly a major element in the judge’s reasoning by which he reached the conclusion that the appellant intended to traffic in these drugs. 

20.After making the finding that the appellant was remaining outside “for other purposes”, the judge then went on to consider whether the appellant could afford to fund his addiction from legitimate income sources. 

21.The judge accepted that the appellant was a long-term drug abuser and that he had bought the drugs for an under-market value of HK$1,300.  However, the judge said that if the appellant had an income of only HK$8,000-HK$9,000 per month and contributed about HK$2,000-HK$3,000 to his family, then the amount of money the appellant used on drugs would have almost used up his income, so that he would have had to sell drugs to finance his habit.  Since he had access to drugs at below market price he was in a position to sell drugs at a profit.  The judge said:

“If these drugs had been resold, a handsome profit would have been made, more than double the price he paid for the drugs.”

22.The judge then concluded:

“ Now, on the evidence before the court, I accept that he had drug problems, he needed money to finance his drug habit, his part-time job did not sustain his need and he had to look for other source of funds and he had the means of finding cheaper drugs, and coupled with the fact that he had the drugs in a sitting-out (sic) without any intention of going home, and the only reasonable inference to be drawn in these circumstances is that he was there with the drugs to sell to others.

For this reason, I find the prosecution proved the charge beyond all reasonable doubt.”

The mitigation

23.In the course of his address in mitigation the appellant’s counsel submitted that part of the drugs would have been for the appellant’s own consumption.  That was rejected by the judge who reminded counsel that in the course of his Reasons for Verdict he had made a finding that the drugs were intended to be resold by the appellant.  When asked by the appellant’s counsel to consider the possibility that some of the drugs might be consumed by the appellant the judge replied:

“There’s no room for this possibility.”

24.In the light of that comment by the judge the appellant’s counsel concluded his submission by arguing that given the quantities involved the sentence should be at the lower end of the sentencing tariff of 3-7 years for quantities of “Ice” up to 10 grammes.

The judge’s Reasons for Sentence

25.In his reasons for sentence, the judge followed the guidelines for trafficking in “Ice”, taking a starting point of 5½ years’ imprisonment.  Having found that none of the drugs were for his own consumption the judge found no other mitigating circumstances to reduce the starting point and so sentenced the appellant to 5½ years’ imprisonment.

The Perfected Grounds of Appeal

26.In Perfected Grounds of Appeal against Conviction filed on 7 December 2016, it was complained that the judge erred in finding that the only reasonable inference was that the appellant was selling drugs to others on the basis that:

(i) a buyer would try to keep his time staying outside as short as possible, therefore inferring that the appellant stayed at the shelter for other purposes; and

(ii) the appellant’s financial situation could not sustain his needs and he had to look around for other sources of funds, namely trafficking in dangerous drugs.

27.In his submissions against conviction Mr Shah, who appeared for the appellant both at trial and on appeal, submitted that an adverse inference can only be drawn against a defendant if it is compelling and the only reasonable inference available from the facts found proven.  He argued that the facts in the present case did not allow as the only reasonable inference that the appellant was trafficking in all of the drugs. 

28.Mr Shah submitted that the judge placed excessive weight on the appellant choosing to remain in the area when in fact, the appellant was only arrested a few hours after his arrival[3] and had offered a reason for why he remained outside and that reason was not inherently improbable.  He emphasized that the drugs were found wrapped together and there was no evidence of a trafficking operation such as electronic scales or plastic bags found at the shelter. 

29.Mr Shah also submitted that the judge erred in drawing the inference of trafficking from the appellant’s financial situation by not properly taking into account variables such as the appellant staying at home with his parents and that he did not always contribute to his family expenses. It was also not inherently improbable that drug users would be provided with a ‘bonus’ for purchasing drugs or that the appellant would buy 7 grammes which was 7 to 10 days supply of drugs. 

30.In view of all these matters the inference that the judge drew, namely that all the drugs were for the purpose of trafficking, was not the only reasonable inference and was not, therefore, an adverse inference available to him to draw.

31.In his Perfected Grounds of Appeal against Sentence, Mr Shah, submitted that the judge erred by refusing to take into account the quantity of drugs for self-consumption and, consequently, the sentence was wrong in principle or manifestly excessive. 

32.In support of the appeal against sentence, Mr Shah submitted that it was contradictory that the judge in his Reasons for Verdict had accepted that the appellant was a drug addict, but proceeded to conclude that all the drugs found were for the purposes of drug trafficking.  In fact, there was no evidence from the surrounding circumstances that the bulk of the drugs were not for the appellant’s own consumption.  Therefore, the judge also erred in refusing to accept the mitigation that the appellant had part of the drugs for his own consumption.  It was submitted that the appellant should have been entitled to a discount of between 10% to 25%. 

The respondent’s submissions

33.In reply, it was submitted that the judge was entitled to reject the appellant’s evidence, and the finding that the appellant was a drug abuser supported the judge’s view that the appellant had to support his habit by selling drugs.

34.In supplementary written submissions Mr Ned Lai, SADPP (Ag), for the respondent, submitted that the judge had taken into account all relevant facts and circumstances in properly arriving at his verdict and his reason for rejecting the appellant’s assertion that the drugs were for his own consumption was reasonable as it was drawn from primary facts, one of which was that the appellant had remained outside for a significant period of time with no apparent intention of going home.

35.With regard to the judge’s findings on the appellant’s financial situation, Mr Lai submitted that the appellant’s claimed monthly income of $8,000 - $9,000 was a maximum amount and that there could be occasions when it might be much less, given that the appellant was not in permanent employment and had no fixed dates for working.  In these circumstances, there was a basis for the judge’s conclusion that the appellant’s income would be almost all used up on drugs and he “would have to cast around for other sources of funds to support his habit.” 

36.As to sentence, it was submitted that the judge was entitled to reject the mitigation that a portion of the drugs was for self-consumption if it was inconsistent with factual findings that he had properly made in his Reasons for Verdict. 

Discussion

37.The judge reached the conclusion that the appellant intended to traffic in all of these dangerous drugs by means of an inferential finding that was drawn from the following primary facts:

(i) the appellant was a long term drug user;

(ii) he needed money to finance his drug habit;

(iii) his part-time job would have made it difficult for him to finance his drug habit and he would have had to look for other sources of funds;

(iv) he had the means of finding drugs at below market cost; and

(v) contrary to the normal behaviour of a drug addict suffering withdrawal symptoms who had just acquired drugs, the appellant remained in the sitting-out area rather than immediately going home and consuming some of the drugs.

38.There can be no dispute about (i) and (ii) above as they flow from the appellant’s own evidence.  It may be that (iii) is more questionable because the amount of the appellant’s income was variable and he did not always give money to his parents.  He was living at home so his daily needs would have been taken care of by them.  However, there can be little doubt that a drug habit of $5,200 per month would have stretched his finances when he was only earning $8,000-$9,000 per month and it was open to the judge to find that in these circumstances an addict might be tempted into occasional trafficking in drugs in order to finance his addiction.

39.The appellant’s ability to access cheaper drugs is an inference from the admitted fact that the estimated “street value” of 7.23 grammes “Ice” would be around HK$2,863 and the evidence of the appellant, which was accepted, that he bought the “Ice” for HK$1,300 and that he could buy drugs at an undervalue. 

40.Understandably, the judge placed significance on the appellant remaining in the sitting-out area.  Even though the judge did not set out in any detail what parts of the appellant’s evidence he accepted and what parts, other than the claim that all the drugs were for self-consumption, he rejected, we are satisfied from what he did say that he must have accepted that the appellant was a drug user who had earlier ordered drugs from a dealer and at some stage in the morning of 2 March 2015 had taken delivery of them.  The appellant lived nearby and claimed to be suffering withdrawal symptoms.  In those circumstances it is not unnatural to expect that a drug addict who has just taken delivery of drugs would want to immediately return home so that he could consume some of them.  That he did not do so may allow of an inference that the appellant was deliberately choosing to remain out and, in the circumstances of this appellant, that he must have had an important reason for wanting to remain out.  One would not normally expect a drug addict who is suffering withdrawal symptoms and who lives nearby and who has just come into possession of drugs to delay his consumption of those drugs, merely so he could talk to a friend.

41.Finally there is also the fact that the packet of drugs consisted of two plastic bags containing what might be regarded as immediately consumable quantities packaged suitably for trafficking.

42.We are satisfied that having heard and seen the appellant give evidence and having found proven the matters we have set out above, the judge was entitled to reject the appellant’s evidence that all of the drugs were for his own consumption and to infer that at least the two smaller packets of drugs were possessed by the appellant for the purpose of trafficking.

43.The question before us is whether the judge’s inferential finding that the drugs in the large packet were also possessed by the appellant for the purpose of trafficking can also be sustained.  Being an inferential finding it must be the only reasonable inference that can be drawn from the primary facts.

44.The starting point in determining whether an adverse inference is available to the fact finder is to examine the primary facts.  Here that is made difficult precisely because the judge did not fully set out what parts of the appellant’s evidence he accepted.  However, perhaps the most important point, and one which the judge did decide, is how it was the appellant came to be at the sitting-out area.  Had he brought the drugs with him from his home or had he come from home empty handed and acquired the drugs only hours before his arrest? If the former then the inference that he intended to traffic in all the drugs is compelling and irresistible.  But, if the latter, as the judge found, then the inference is far less compelling.

45.The appellant’s evidence that he purchased drugs to last 7-10 days is not unreasonable and the quantity of “Ice” in the larger packet is consistent with his claim as to the amount he normally consumed over the course of a week.  If he on-sold all the drugs he had just purchased he would, on his account, have none left for his own consumption.  Furthermore, unless the appellant had a customer willing to purchase from him all the drugs in the large packet, then, in order to traffic in the drugs in that packet, the appellant would have to remove portions of the drugs from this packet and place them into smaller packets for resale.  To do this with any precision he would need an electronic scale but even if he could get by without the assistance of this instrument he would still need, at the very least, a number of plastic bags.  At the time of his arrest he had neither scales or plastic bags with him.  Furthermore, if he was to engage in trafficking from this location he would be involved in the process of re-packaging small traffickable quantities of drugs in a location which manifestly did not possess the kind of privacy needed for such activity.  However, to immediately traffic in the two small plastic bags would be a simple enough affair of opening the packet and separating them from the large packet.  None of these matters were addressed by the judge.

46.Without the judge revealing in more detail which parts of the appellant’s evidence he accepted and which primary facts he relied upon to draw the inference of trafficking, we are not satisfied that the inference that the appellant was trafficking in the drugs contained in the large packet is the only reasonable inference that can be drawn.   

47.However, as we have found that the judge was entitled to infer that the appellant possessed the two smaller packets for the purpose of trafficking the conviction must be upheld, but only in respect of those two packets.  The judge’s reasoning, as applied to the small packets, cannot be impugned and the primary facts allow of the inference he drew in respect of the two smaller packets.   

48.The appellant is guilty of unlawfully trafficking in 0.60 gramme of “Ice” and of at least unlawfully possessing 6.49 grammes of “Ice”.  The issue for us is whether we should quash the conviction and order a retrial or whether some other, more appropriate, option is available to us.

49.In determining this issue the first question we need to address is whether we can sentence the appellant afresh for the unlawful trafficking charge and reflect the fact that 6.49 grammes of “Ice” was for his own consumption by awarding him a discount from between 10 to 25%.  This device was developed by the Court of Appeal in drug trafficking cases to deal with the situation where a drug trafficker claimed, and the sentencing judge accepted, that a significant portion of the drugs were possessed for the drug trafficker’s own consumption and this may well make a difference to sentence.[4] Since Hong Kong’s sentencing regime for drug trafficking is based on the quantity of drug being trafficked it is only just to treat self-consumption as a mitigating factor and to allow for it by means of a sentencing discount. 

50.However, precisely because Hong Kong’s sentencing regime is quantity based, the question arises of whether this sentencing device is appropriate where the precise portion of drugs for self-consumption is known.  We are of the view that where a court knows the precise portion of a total quantity of drug that is for the trafficker’s own consumption then it would not be right to employ the sentencing range appropriate for an offence of trafficking in the whole amount and then discount that starting point to allow for the fact that a portion is for the trafficker’s own consumption.  To employ a sentencing starting point appropriate to an offence of trafficking in the whole amount is, in these circumstances, to punish a person for an offence he has not committed.

51.There is nothing unusual in convicting a person of an offence but in respect of some only of the particulars stated in the offence.  Thus, if a person is charged with stealing 10 items from a store but is proven to have stolen only 8, he is convicted of having stolen only those 8 items and sentenced accordingly. 

52.Where the portions of drugs that are for trafficking and those that are for his own consumption are each quantifiable then the appropriate course is to convict the defendant of separate offences of unlawfully trafficking in a dangerous drug and unlawful possession of a dangerous drug.  This raises the question of how this is to be done.

53.Clearly, if it is apparent from the papers that there is a possibility of the tribunal of fact finding that a specific, quantifiable portion of the drugs were for self-consumption then the prosecutor should lay either an additional charge for unlawful possession of this specific, quantifiable portion of the dangerous drugs or an additional charge of trafficking in respect of this contested amount, for which unlawful possession would be an alternative conviction available to the judge or jury.  Such charges should be pleaded as being in the alternative to the charge of trafficking in the whole amount of the dangerous drug.

54.Where there is a negotiated plea of guilty then these issues will be resolved in advance of the plea being taken and the prosecutor and defence counsel will ensure that appropriate charges are before the court.  We should emphasise, however, that this alternative charge procedure is only appropriate for specific quantifiable amounts of drugs which the court accepts are for the defendant’s self-consumption.  Where the claim to self-consumption is made in respect of an unquantifiable amount which is accepted as being a significant portion of the whole then the principles laid down in HKSAR v Wong Suet Hau & Anor[5] and HKSAR v Chow Chun Sang[6]will apply.

55.The device of employing alternative charges in respect of separate, quantifiable amounts of drugs claimed to be for self‑consumption was referred to with approval by the Court of Appeal in Wong Suet Hau & Anor where it was said at paragraph 30, pages 77-78:

“30. Sometimes, there are two separate and clearly identifiable amounts of drugs. As an example, in The Queen v Lam Kin Choi [1992] 2 HKCLR 235, the applicant had two lai see packets in his possession. Each contained a similar quantity of heroin. The applicant in that case, pleaded guilty to a single charge of possession of dangerous drugs for the purposes of unlawful trafficking, although the mitigation advanced, was to the effect that only one of the packets was going to be supplied to another, while the other was intended for self-consumption. The modern-day practice in such a situation, where there are two separate quantities of drugs, of which only one has been described by a defendant as having been wholly intended for self-consumption, will usually involve a second count of trafficking being included in the indictment. In a case like The Queen v Lam Kin Choi, the prosecution may then either accept a plea to simple possession on one of the counts or, if there remains an issue about whether these drugs were in fact being trafficked, and it is in the public interest to pursue it, the jury can be left to decide the matter.”

56.There may be occasions where the papers do not suggest to the prosecutor that there will be an issue at trial of self-consumption and so he does not lay an alternative charge of unlawful possession even though the total quantity of drugs consists of a number of separate packets.  In this situation, should the prosecutor conclude in the course of the trial that self‑consumption has become a live issue, or if the trial judge so indicates to him, then the prosecutor will have to consider whether to amend the charge sheet or indictment. 

57.The power to amend can be found in section 23 of the Criminal Procedure Ordinance, Cap 221.  Section 23(1) provides:

“Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.”

58.This provision applies to the District Court by virtue of section 79 of the District Court Ordinance, Cap 336.

59.The definitive appellate authority in Hong Kong on section 23 is Attorney General v Chan Hung Hoi[7] where Roberts CJ, in giving the judgment of the court, noted that section 23 was in identical terms to section to section 5(1) of the Indictments Act 1915 and then continued at pages 972E-973C:

“Therefore, it was submitted to us, English cases on the interpretation of s. 5 of the Indictments Act were applicable to s. 23 of Chapter 221, a submission with which we agree. We also accept that this section is applicable to trials in the District Court as it is in the High Court.

It might have been thought that the effect of the section, with its reference to the indictment being ‘defective’ was restricted in its operation to circumstances in which the indictment was bad on the face of it, e.g. because of duplicity or because the particulars disclosed no offence.

However, it is apparent from the English authorities that this section has been construed in far wider terms, so as to include, for example, cases in which:

(a) the indictment does not accord with the evidence adduced in the depositions, either because of inaccuracies or deficiencies in the indictment, or because the indictment charges offences not disclosed by that evidence or fails to charge an offence which is so disclosed;

(b) for the same reasons as in (a), the indictment does not accord with the evidence given at the trial; (see R. v. Hall (1968) 52 Cr App 528 and R. v. Johal & Ram (1972) 56 Cr App R 348, in which latter case reference is made to several of the older authorities).

(c) the evidence lead in support of the indictment discloses more than one offence; (see R. v. Jones and Others (1974) 59 Cr App R 120).

In the exercise of the power conferred by s. 5, the courts have gone so far as to order amendments to an indictment:

(a) involving the substitution of a different offence for that originally charged in the indictment; or

(b) the inclusion of an additional count for an offence not previously charged (see R. v. Johal & Ram above);

(c) at any stage of the trial, provided that having regard to the circumstances of the case and the power of a court to direct a separate trial of any accused or to postpone a trial, the amendment can be made without injustice. (See R. v. Smith and Others (1950) 34 Cr App R 168 and R. v. Harris (1976) 62 Cr App R 28.) The high water mark of this discretion was reached in R. v. Dossi (1918) 13 Cr App R 158 in which an indictment was amended after the jury had returned with a conditional verdict.

We do not doubt, on the basis of these authorities, that it is open to a judge to order the amendment of an indictment, if satisfied that the evidence which has been adduced during the trial does not support the indictment as drafted, subject always to the requirement that the suggested amendment can be made without injustice.”

60.There will usually be no prejudice to a defendant for the amendment will be consistent with his defence and will be for his benefit.

61.It follows, therefore, that at the conclusion of the evidence in the present case, the judge, had he been so minded, could have amended the charge sheet to add an alternative charge of unlawful possession of a dangerous drug.

62.By section 13(4) of the High Court Ordinance, Cap 4, the Court of Appeal “shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”  This is the route by which the Court of Appeal obtains access to the power granted by section 23. That this is so was discussed and affirmed by the Court of Appeal in HKSAR v Huynh Bat Muoi[8].

63.Having available to us the power granted by section 23 means that we can now amend the charge sheet by adding a charge of unlawful possession of a dangerous drug, contrary to section 8(1) of the Dangerous Drugs Ordinance, Cap 134.  The Particulars of Offence of such a charge would be as follows:

“Gurung Laxman, on the 2^nd day of March 2015, at a hut at the rear lane of Battery Street Sitting-out Area, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully had in his possession a dangerous drug, namely 6.62 grammes of a crystalline solid containing 6.49 grammes of methamphetamine hydrochloride.”

64.Of course, we can only avail ourselves of this power at this late stage if by doing so there would be no prejudice caused to the appellant.  In circumstances such as existed in the present case there cannot be any possible risk of prejudice to the appellant by this court, in effect, splitting the charge in two by amending the charge sheet to change the particulars of the trafficking charge to unlawful trafficking in 0.60 gramme of “Ice” and adding a further charge of unlawful possession of a dangerous drug, contrary to section 8(1) of the Dangerous Drugs Ordinance, Cap 134.  Here, the appellant never contested he was in possession of the dangerous drugs, only that he was trafficking in them.  Indeed in the present case the appellant formally admitted his possession of them in the admitted facts and then went on to testify to the same effect.

65.In the circumstances of the present case we are satisfied that the preferable course of action is not to send this case back for retrial but rather to exercise the power available to us under section 23 and to amend the charge sheet by adding a further charge of unlawful possession of a dangerous drug.  This we now do, as set out in paragraph 63 of this judgment, and we convict the appellant of it.

66.We now turn to the issue of sentence.  For the first charge of trafficking in 0.60 gramme of “Ice” the relevant sentencing tariff, as laid down by this court in Attorney General v Ching Kwok Hung[9], is 3 to 7 years’ imprisonment for trafficking in up to 10 grammes of “Ice”.  As the appellant only trafficked in 0.60 gramme of “Ice” we adopt a starting point of 3 years’ imprisonment.  This being a conviction after trial there is no basis for discounting the starting point and so this becomes the sentence of the court.

67.For the second charge of unlawful possession of a dangerous drug we adopt a starting point of 18 months’ imprisonment.  Although this drug was purchased for self-consumption it is a relatively large amount intended to last the appellant at least one week.  Given the quantity of drug, the period of time over which it was intended to be consumed and the relatively poor financial situation of the appellant there existed a reasonably high latent risk that part of it may end up being trafficked.  We therefore enhance the 18 months’ starting point by 9 months.  This makes a total sentence of 27 months’ imprisonment. Given that the appellant all along admitted his possession of these drugs we are of the view that he should be granted a full one-third discount from this starting point.  The resulting sentence for the second charge is 18 months’ imprisonment.

68.The next issue is whether the whole or any part of the sentence for the unlawful possession charge should be ordered to be served consecutively to the sentence for the unlawful trafficking charge.

69.There is a line of cases which are to the effect that when a defendant is convicted of both simple possession and trafficking in respect of what is, in effect, the same store of drugs then the sentences should be served concurrently.[10] But the reason for this is to ensure that the defendant does not receive a total punishment heavier than he would have received had he been convicted and sentenced for trafficking in the whole amount of the drugs in his possession.  This risk usually arises where the quantity for self-consumption is only a small portion of the whole so that if aggregated with the portion being trafficked there would be little impact upon the starting point adopted by the court for the trafficking charge.  That is not the position here; in fact the situation of this appellant is the exact opposite.  He has been convicted of trafficking in only a small portion of the total drugs in his possession.  The principle laid down in this line of cases has no application to this appellant except to the extent that the total sentence for the two offences should not exceed the sentence the appellant received for trafficking in the whole amount of the drugs, namely 5 years and 6 months’ imprisonment.

70.There can be no doubt that the two convictions reflect different areas of culpability each of which needs to be punished.  In accordance with the sentencing principles discussed by this court in HKSAR v Ngai Yiu Ching[11]we are satisfied that we would be entitled to order that the sentence for the second charge be served wholly consecutively to the sentence for the first charge.  This would result in a total sentence of 4 years 6 months’ imprisonment.

71.The only reason for not making such an order is the totality principle.  Standing back and enjoying the benefit that distance provides can it be said that a total sentence of 4 years 6 months’ imprisonment would be an unjust sentence. Given that the appellant is a long term drug addict who possessed the bulk of the drugs for his own consumption and given that the sentence for the possession charge contains an enhancement for latent risk, we are satisfied that, in the circumstances of this case, an appropriate total sentence is one of 4 years’ imprisonment.

Conclusion

72.For these reasons the appeal against conviction must be dismissed.  The appellant’s conviction for unlawful trafficking in a dangerous drug remains but with the different particulars as amended by us.  The appellant is further convicted of the additional charge of unlawful possession of a dangerous drug as particularized in this judgment.  The appeal against sentence is allowed and in place of the sentence imposed by the judge we sentence the appellant to 3 years’ imprisonment on the charge of unlawfully trafficking in a dangerous drug and 18 months’ imprisonment for the offence of unlawful possession of a dangerous drug.  We further order that 12 months of this latter sentence be served consecutively to the sentence for the offence of unlawfully trafficking in a dangerous drug. The total sentence to be served by the appellant is 4 years’ imprisonment.    

Mr Ned Lai SADPP (Ag), of the Department of Justice, for the respondent

Mr Mohammed Jawadullah Shah, instructed by LCP, assigned by DLA, for the appellant