HKSAR v. Cheung Wai Man
Read the full judgment text of CACC 258/2017 on BabelCite. This Court of Appeal judgment was delivered on 31 July 2018.
1. Following his plea of guilty before a magistrate on 22 May 2017, the applicant was convicted of one count of trafficking in 15.80 grammes of methamphetamine hydrochloride (commonly known as “Ice”); 17.48 grammes of heroin hydrochloride; and 0.14 gramme of midazolam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for which he was committed to the High Court for sentence. On 7 August 2017, the applicant was sentenced by Deputy Judge Bruce, SC (“the judge”) to 6 y
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CACC 258/2017 [2018] HKCA 475 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 258 OF 2017 (ON APPEAL FROM HCCC NO 173 OF 2017) ________________________
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________________________ J U D G M E N T ________________________ 1.Following his plea of guilty before a magistrate on 22 May 2017, the applicant was convicted of one count of trafficking in 15.80 grammes of methamphetamine hydrochloride (commonly known as “Ice”); 17.48 grammes of heroin hydrochloride; and 0.14 gramme of midazolam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for which he was committed to the High Court for sentence. On 7 August 2017, the applicant was sentenced by Deputy Judge Bruce, SC (“the judge”) to 6 years and 10 months’ imprisonment. 2.The applicant filed a notice of application for leave to appeal (Form XI) on 22 August 2017, and now seeks to appeal against his sentence. The facts 3.At about 2151 hours on 29 August 2016, the applicant was intercepted by police officers on patrol when walking at Reclamation Street, Mong Kok, Kowloon. Upon a search of the applicant’s shoulder bag, the police officers found an iron box, which contained the following items:
4.The police officers further found the following items tied with a string of plastic tape to the applicant’s left armpit and left shoulder:
5.The applicant was also found in possession of other items including no less than five mobile telephones and cash in the sum of HK$11,860. Accordingly, police officers arrested and cautioned the applicant, whereupon he responded that the dangerous drugs were for his own consumption, and asked for a chance. In his subsequent video recorded interview, the applicant confirmed his admission at the scene and reiterated that the seized drugs were for his own consumption. 6.The estimated street value of the seized dangerous drugs was HK$24,953 (“Ice” – HK$5,571; heroin hydrochloride – HK$18,802; midazolam – HK$580). By pleading guilty and accepting the Summary of Facts, the applicant admitted that the seized dangerous drugs were in his possession for the purpose of unlawful trafficking. Mitigation 7.The applicant was a 42‑year old married man at the time of sentence. He had worked in various jobs, one of which was as a used mobile telephone salesman earning some HK$20,000 per month. 8.Mr Bok, counsel for the applicant both here and below, told the court that the applicant had been a heroin addict since he was 16 years of age. He had been to a Drug Addiction Treatment Centre in 1996 and 2010. During his remand in the present case, the applicant’s urine specimen tested positive for amphetamines. 9.It was submitted that since the applicant’s monthly income from selling used mobile telephones could not support his drug habit, the applicant had to sell some of the dangerous drugs to others. It was asserted that the applicant intended to keep between a quarter and a third of the dangerous drugs for his own consumption, as a result of which the starting point could be discounted by 10 to 25%, in addition to the discount for a timely plea. Reasons for sentence 10.Given the presence of more than one kind of dangerous drug, the judge determined that for trafficking in 15.8 grammes of “Ice”, the starting point should be 7½ years’ imprisonment; for 17.48 grammes of heroin hydrochloride, 5½ years’ imprisonment; and for 0.14 gramme of midazolam, 1 month’s imprisonment. In determining the overall starting point, the judge said he was adopting the ‘combined approach’, that is firstly to calculate the applicable sentence for the more or most serious drug in terms of potency, and then adjust the sentence upwards to take into account significant quantities of the other less serious drugs. However, the judge said he was equating “Ice” and heroin for sentencing purposes[1]:
11.The judge adopted a starting point of 13 years’ imprisonment. Without expressly specifying how he arrived at 13 years’ imprisonment, it would appear that he simply added together the starting points for the “Ice” and heroin hydrochloride (ie 7½ + 5½ = 13 years). He further reduced the starting point to 12 years’ imprisonment, in respect of which reduction he said “[t]hat may be a fraction merciful, but that is no bad thing”[2]. 12.On the issue of the applicant’s own consumption of some of the dangerous drugs, the judge accepted Mr Bok’s submissions that about a quarter to a third of the seized dangerous drugs were intended by the applicant for his own consumption. The judge considered that to be a “significant proportion” of the whole of the drugs seized and thus granted the applicant a 15% discount from the starting point. 13.The judge then discounted the sentence by one‑third for the applicant’s plea of guilty, arriving at a sentence of 82 months’ (or 6 years and 10 months’) imprisonment. Grounds of appeal 14.There is one ground of appeal, namely, that the starting point for sentence was wrong in principle and/or manifestly excessive. 15.By simply adding up the quantities of “Ice” and heroin hydrochloride, the judge would have arrived at a quantity of 33.28 grammes of narcotic. However, in HKSAR v Chan Yuk Leong[3], the Court accepted that a sentence of 8 years and 6 months’ imprisonment for 42.01 grammes of “Ice” was appropriate after trial. Under the subsequently revised guidelines in HKSAR v Tam Yi Chun[4], Mr Bok argues that 33.28 grammes of “Ice” narcotic should have attracted a sentence after trial in the region of 8½ to 9 years’ imprisonment. 16.Mr Bok places particular reliance on the judgment of the Court in HKSAR v Yip Pik Kwai[5], where the trial judge had sentenced the applicant to 7 years’ imprisonment for trafficking in 20.45 grammes of “Ice” and 5 years’ imprisonment for trafficking in 12.05 grammes of heroin narcotic, making a total starting point of 12 years’ imprisonment. Yet, it was held, at paragraphs 7 and 8:
17.Accordingly, Mr Bok submits that the starting point of 12 years’ imprisonment adopted by the judge under the ‘combined approach’ was in all the circumstances manifestly excessive. The respondent’s reply 18.Having cross-checked the starting point of 12 years’ imprisonment with the ‘absurdity test’, the ‘conversion test’ and the ‘ratio test’, Mr Man, on behalf of the respondent, concedes that the judge’s starting point was “on the high side”. In fact, the judge seems to have erroneously adopted an ‘individual approach’ to each quantity of dangerous drug rather than the ‘combined approach’ when arriving at his starting point. 19.Although the respondent concedes that the starting point adopted was arguably on the high side, he nevertheless observes that the judge should have considered an upward adjustment of the starting point, since the applicant had trafficked in three different types of dangerous drugs: see HKSAR v Yim Hung Lui Ricky[6], where the Court said, at paragraph 11:
20.Mr Man further suggests that the 15 percent discount for the applicant’s own consumption was far too generous in the circumstances. The applicant was unable to provide a precise percentage of the portion of dangerous drugs that he intended to consume himself. As a matter of common sense, the larger the quantity, the less likely it was that the threshold of a “significant proportion” of the whole could be reached: see HKSAR v Yeung Shek Yung[7]. In HKSAR v Chow Chun Sang[8], it was accepted by the trial judge that over half of the “Ice” seized was for the applicant’s own consumption, yet, noting that the applicant had a bad criminal record, the Court of Appeal upheld the judge’s discount of 10%, whilst nevertheless agreeing that it was “on the conservative side”. Consideration 21.Whilst I have some concerns about the judge’s acceptance of the bald and somewhat vague assertion, without evidence, that a quarter to a third of the drugs were for the applicant’s own consumption, it is not necessary for me to go too far into an analysis of the facts, since the respondent accepts that the starting point was on the high side, and therefore the sentence arguably manifestly excessive. 22.I agree with both Mr Bok and Mr Man that it is reasonably arguable that the starting point adopted by the judge was too high. In those circumstances, I shall simply give leave to appeal against sentence. The Court of Appeal, if it agrees that the judge’s approach to identifying the starting point miscarried, will no doubt consider sentence afresh, in which case the other issues of the possible enhancement for trafficking in three different kinds of dangerous drugs and the proper discount for the applicant’s own consumption will be dealt with by the Court.
Mr Jonathan Man SADPP, of the Department of Justice, for the Respondent Mr Bok Tin-yuen, instructed by the Legal Aid Department, for the Applicant [1] Reasons for sentence, AB p 5I-M. [2] Reasons for sentence, AB p 5O-P. [3] HKSAR v Chan Yuk Leong (unrep., CACC 318/2013, 8 April 2014). [4] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. [5] HKSAR v Yip Pik Kwai (unrep., CACC 593/1998, 27 April 1999). [6] HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011, 13 February 2012). [7] HKSAR v Yeung Shek Yung (unrep., CACC 314/2016, 3 July 2017), at paragraph 18. [8] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at paragraphs 8 and 22. |
Cases cited in this judgment
Further hearings and rulings under CACC 258/2017