HKSAR v. Choi Chun Wo

CACC 273/2017

[2018] HKCA 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 273 OF 2017

(ON APPEAL FROM DCCC NO 102 OF 2017)

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REASONS FOR JUDGMENT

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Hon Zervos J (giving the Judgment of the Court):

1.On 3 August 2017, the appellant was convicted on his own plea by Deputy District Judge M Chow (the judge) of a single offence of trafficking in a dangerous drug, namely 5.33 grammes of a crystalline solid containing 5.26 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 21 August 2017, the judge sentenced the appellant to 3 years and 4 months’ imprisonment.

2.On 1 September 2017, the appellant filed an application for leave to appeal against his sentence which was heard by McWalters JA on 17 January 2018, who granted limited leave to the appellant to appeal on the grounds that the starting point adopted by the judge was too high and that the percentage discount allowed for self-consumption was too low.  See HKSAR v Choi Chun Wo [2018] HKCA 29.

3.At the hearing, we allowed the appeal, set aside the sentence of the judge and in substitution for it sentenced the appellant to 3 years and 1 month’s imprisonment.  We said we would hand down our reasons for so deciding in due course.  These are our reasons.

The admitted facts

4.The facts admitted by the appellant can be summarised as follows.  At around 12:15 pm on 6 December 2016, the appellant was stopped by Customs officers at the Customs Arrival Hall at Lo Wu Control Point.  He was searched and found inside his jeans pocket was a plastic bag which contained six resealable plastic bags (exhibits P1 to P6).  Five of the plastic bags were each wrapped in tissue paper (exhibits P2 to P6).  The six plastic bags contained a total of 5.33 grammes of a crystalline solid containing 5.26 grammes of Ice.  The estimated value of the drugs was $1,785.55.

5.After the appellant was arrested and cautioned, he claimed that the Ice was for his own consumption which he had bought for RMB 500.  In a subsequent video recorded interview, the appellant repeated that he had bought the Ice in Shenzhen for his own consumption and added that he had already consumed about 0.2 to 0.3 gramme of it.  He said he would consume Ice about three times a day, and on each occasion he would consume about 0.3 to 0.4 gramme.  He claimed that he was a logistics worker who earned on average about $7,000 to $8,000 each month.

The mitigation

6.The appellant was 44 years of age at the time of his sentence.  In mitigation, it was submitted by defence counsel that he was married in 2010 but separated from his wife in 2015.  He was living with his younger brother before his arrest for this offence.  He had 13 previous convictions, two of which were for possession of a dangerous drug in 1995 and 1996, respectively. He had no previous conviction for trafficking in a dangerous drug.

7.It was also submitted by defence counsel that all of the drugs seized were for the appellant’s own consumption.  He said that the appellant had an addiction to Ice as evidenced by his previous convictions for possession of drugs, his claim at the time of his arrest that the drugs were for his own consumption, and his positive test result for Ice when he was taken into custody.  It was submitted that he had been paid by his employer $2000 prior to the offence which he used to buy the drugs.  The judge questioned defence counsel about the appellant’s employment and means to buy the drugs.  As a result, the case was adjourned to verify the appellant’s employment, and to afford the appellant the opportunity of presenting evidence in support of his claim that all of the drugs were for his own consumption.

8.It was confirmed by prosecution counsel that one of the plastic bags was opened (exhibit P1), whilst the other five were sealed and wrapped in tissue paper (exhibits P2 to P6).

9.At the return hearing, the judge was informed by prosecution counsel that the employer was not the current occupant of the address given by the appellant, but this was not considered to be of any significance because his employment terminated when he was arrested in December 2016.  Prosecution counsel also produced the appellant’s travel record which showed frequent trips to and from mainland China, as well as an expert medical report on Ice which dealt with the methods and dosages of consumption of Ice by users.  The consumption dosages claimed by the appellant were not inconsistent with what was said in the report.

10.The appellant was given the opportunity to present evidence in support of his assertion that all of the drugs were for his own consumption, but defence counsel informed the judge that the appellant did not wish to give evidence or provide any other evidence in relation to the matter.

Reasons for sentence

11.In determining the starting point, the judge followed the guideline tariffs for trafficking of Ice in AG v Ching Kwok Hung [1991] 2 HKLR 125, and noted that the quantity of 5.26 grammes fell within the sentencing band of 3 to 7 years’ imprisonment.  She then adopted a starting point of 5 years and 6 months’ imprisonment.  It should be noted that the guideline tariffs for trafficking of Ice had been revised in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 which came into effect on 9 June 2014.  As the present offence occurred on 6 December 2016, the new guideline tariffs applied.  However, it was a matter of no consequence as the sentencing tariff for up to 10 grammes of Ice was the same in the old and new guideline tariffs.

12.On the issue of self-consumption, the judge stated that she was guided by the factors that should be taken into account as mentioned in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  She also noted HKSAR v Chow Kam Lung [2012] 2 HKLRD 1121, and particularly HKSAR v Liu Ming Sze [2017] 1 HKLRD 69 that it was within a court’s sentencing discretion to discount from the starting point taken for sentence to reflect an element of self-consumption.

13.In determining the appellant’s claim that all of the seized drugs were for his own consumption, the judge considered his travel movement record and noted that he regularly spent time in mainland China.  She said:

“23. I notice from the movement record there was a consistent pattern that the defendant returned to China to stay overnight. The month prior to 5 December, he never stayed in Hong Kong for more than two nights. There may be some truth that the ‘open packet’ was for his own consumption.

24. As to his staying overnight in China, I brought this to the attention of the defence. The defence was clearly aware of this piece of information. The defendant said that he picked up the ‘delivery’ late and was required to stay in China for a night at his friend’s place.

25. In the record of interview, he said that he took drugs either in the toilet or in the hostel, not at his friend’s residence. I have doubt that he had friends that would put him up on such a regular basis.

26. As said before, the movement records show that he stayed in China most of the time, sometimes in consecutive nights.

27. My question to ask: why did the defendant need to bring five days’ dosage to Hong Kong?  There was no good reason for him to bring in more drugs than he needed to.  Any surplus to take back to China increased his risk for being arrested at both the Hong Kong and China border.  To this end, I refuse to accept that the whole of the six packets were for his own consumption.”

14.The judge resolved the issue of self-consumption by accepting that one of the bags of Ice, the one which had already been opened and from which the appellant claimed he had consumed some Ice (exhibit P1), was for the appellant’s own consumption.  She noted that the remaining quantity of Ice in this bag was 1.99 grammes but this was a mistake as it was 1.9 grammes (which consisted of the weight of the bag and its contents). However, she was not persuaded that the remaining bags were for his own consumption.

15.In consequence, the judge having adopted a starting point of 5 years and 6 months’ imprisonment, reduced it by 6 months (amounting to 9.1% discount) for self-consumption to 5 years’ imprisonment. When it was further reduced by one third to allow for the appellant’s guilty plea, the final sentence imposed on him was 3 years and 4 months’ imprisonment.

The appeal against sentence

16.Ms Karen Cheung, counsel for the appellant, submitted that the judge erred in adopting a starting point of 5 years and 6 months’ imprisonment and granting only a discount of 6 months from the sentence for self-consumption.

17.On the issue of the starting point, Ms Cheung pointed out that on a strict arithmetic calculation for trafficking in 5.26 grammes of Ice, the starting point should be 5 years and 1 month’s imprisonment according to guideline tariffs.  She submitted that absent good reason to do so, the judge should not have departed from the guideline tariff.

18.On the issue of self-consumption, Ms Cheung noted that the judge found that the contents of exhibit P1, consisting of 1.99 grammes of the drugs, was for the appellant’s own consumption which represented 37.8% of the total quantity of the drugs.  She based this percentage on a total quantity of the drugs of 5.26 grammes of Ice narcotic.  She submitted that the judge should have firstly determined whether 37.8% of Ice for the appellant’s self-consumption constituted a “significant proportion” of the total amount of Ice seized from him.  By reference to other similar cases, she argued that a percentage of 37.8% of the total drugs would be a “significant proportion”. Once that had been established, the judge should have determined the discount for self-consumption.  She referred to HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at paragraph 19, where it was said that depending on the circumstances, the discount should fall somewhere between 10% and 25% of the basic starting point.  She contended that the total quantity of Ice was not large, and there was no evidence that the remaining drugs would be used by the appellant for commercial trafficking, nor was there evidence that the trafficking was organized.  Again by reference to other similar cases, she argued that the discount that should have been awarded to the appellant was somewhere between 15% and 18%.

The respondent’s submissions

19.Mr Andrew Cheng, for the respondent, acknowledged that on a strict arithmetic calculation of the guideline tariff, 5.26 grammes of Ice would attract a starting point of 5 years and 1 month’s imprisonment. However, he submitted that the judge was entitled to enhance the starting point to reflect the aggravating feature of the international element, as a result of the appellant importing the drugs into Hong Kong from mainland China.  He cited HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 30.  As for the level of enhancement for the international element, he referred to HKSAR v Chung Ping Kun [2014] 5 HKC 106, where this Court laid down broad guidelines in relation to this aggravating factor in drug trafficking cases involving less than 1,000 grammes of narcotic, and suggested that for up to 250 grammes of drugs, the level of enhancement is 6 months.

20.He also referred to HKSAR v Zhou Sailin, CACC 72/2014, 9 December 2014, unreported, where Lunn VP (as he was then), giving the judgment of the court, explained that:

“18. The purpose of a court enhancing sentence to reflect an international element in unlawful trafficking of dangerous drugs of this kind is to act as a deterrent. As such, in the lowest band of up to 250 grammes, generally it will not be appropriate to impose an enhancement of sentence of less than 6 months’ imprisonment.”

21.In the premises, he submitted that, allowing for an enhancement for the international element, the starting point adopted by the judge was not too high.

22.Mr Cheng challenged the accuracy of the percentage of Ice for self-consumption of 37.8%, as suggested by Ms Cheung.  He argued that it was not accurate to use the weight of the open bag (exhibit P1) before forensic examination (1.9 grammes), which included the plastic bag, against the aggregate narcotic weight obtained after forensic examination (5.26 grammes) to determine the proportion of the drugs for self-consumption.  He pointed out that the total weight of the 6 bags (exhibits P1 to P6) was 7.2 grammes[1], therefore it was more accurate to say that 26.3% of the Ice was intended for the appellant’s consumption.

23.We agree with Mr Cheng that Ms Cheung’s method of calculating the percentage would not accurately reflect the percentage of drugs for self-consumption.  As the sentencing regime for drug trafficking is based on the quantity of narcotic being trafficked, we consider that is how the percentage should be determined.  Taking into account the fact that the Ice narcotic was part of a crystalline solid and the weight of the plastic bag, the quantity of drugs for the appellant’s own consumption would have been about 1.5 grammes which would be about 28.5% of the total quantity of Ice narcotic of 5.26 grammes. 

24.Mr Cheng argued that even though the judge was aware of the relevant authority on the issue of self-consumption, she seemed to have concluded that the quantity of Ice for the appellant’s self-consumption was not a “significant proportion” of the total drugs and therefore relied on Liu Ming Sze, to which she referred, to give the appellant a discount from his sentence within her sentencing discretion.  While the judge did not make it clear what approach she had taken, the end result was that she gave the appellant a discount from his sentence of 6 months which was a discount of 9.1% of the starting point of 5 years and 6 months’ imprisonment.  The percentage was close to the 10% to 25% range of discount suggested in Chow Chun Sang when it is established that a “significant proportion” of the total drugs was for self-consumption. 

25.Mr Cheng submitted that the judge must have concluded the 26.3% of the total drugs for the appellant’s own consumption did not represent a “significant proportion”, and this was in line with relevant legal principles.  He further submitted that the suggested range of discount set out in Chow Chun Sang was not relevant and it was within the judge’s discretion to award a discount to the appellant on account of the fact that some of the drugs were for self-consumption, and therefore the 9.1% discount was generous in the circumstances.

Discussion

(a)   The issue of the starting point

26.We first turn to address the issue of the starting point.  It is not in dispute that the correct starting point for 5.26 grammes of Ice according to the guideline tariff was 5 years and 1 month’s imprisonment.  The only issue is the level of enhancement for the international element.  It has been held that in relation to the international element in drug trafficking cases within the lowest band of up to 250 grammes, it will “generally” not be appropriate to impose an enhancement of sentence of less than 6 months’ imprisonment.  However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent. 

27.In the present case, as only 5.26 grammes of Ice was brought into Hong Kong from mainland China, we were of the view that 3 months enhancement of the sentence would be appropriate.  This brings the starting point to 5 years and 4 months’ imprisonment.

(b)   The issue of self-consumption

(i)   General principles

28.We next turn to address the issue of self-consumption.  Both counsel have sought to examine various terms that have been used when considering the threshold requirement of self-consumption.  What needs to be appreciated is that the key authority on this subject is Wong Suet Hau which was addressing the situation where a claim that some of the drugs were intended for self-consumption could be shown to be true but the quantity of such drugs was not readily discernible.  It was held that if it is claimed that a “significant proportion” of the drugs was intended for the consumption of the defendant and not for trafficking, the court was obliged to address the issue, as it may well make a difference to sentence.  It was recognised that it may not be possible to readily quantify the drugs for self-consumption except in very broad terms.  See also HKSAR v Tsoi Man Chun, CACC 414/2015, 27 March 2017, unreported. 

29.It is in such circumstances, that Chow Chun Sang suggested a range of discount for self-consumption between 10% and 25%.  However, as emphasised in HKSAR v Kong Tat Lung [2017] 6 HKC 448, this range of discount is only applicable when the threshold of “significant proportion” has been met.  When a less than significant proportion of unquantifiable drugs is accepted as being for the defendant’s own consumption then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect  this fact, as explained in Liu Ming Sze, at paragraphs 28 and 29. 

(ii)   Whether “significant proportion” is “50% or more”?

30.As the parties in the course of oral submissions referred to the Chinese judgment of Kong Tat Lung, the hearing was adjourned so that the Court could be provided with an English translation of the judgment.  Somewhat to our surprise at the resumed hearing, Mr Cheng submitted that the effect of Kong Tat Lung, was that “significant proportion” or its equivalent expression was only satisfied if it was established that “50% or more” of the drugs were for self-consumption.  It would be then that a defendant would be entitled to the range of discount of 10% to 25% set out in Chow Chun Sang.  This was a significant matter that had not been previously argued, nor clearly articulated in the respondent’s supplemental written submissions.

31.When we asked Mr Cheng if this submission had the endorsement of the Director of Public Prosecutions, he said it did.  He added that this was the stance taken by prosecutors before the courts, but we must say that this has not been our experience.

32.Mr Cheng, in supporting his submission, relied on the following passages from Kong Tat Lung , where Yeung VP, giving the judgment of the court, stated:

“54. Having considered many relevant Hong Kong and foreign cases, the Court of Appeal in Chow Chun Sang held:

‘We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point.’

55. However, we must first point out that the trial judge in Chow Chun Sang accepted that over half of the dangerous drug “ice” involved in that case was for the defendant’s own consumption. In most of the cases considered by the Court of Appeal in Chow Chun Sang, including Secretary for Justice v Chan Chun Fat [2011] 3 HKLRD 116, R v Chung Kam Fai [1993] 1 HKCLR 78, HKSAR v Chow Kam Lung [2010] 4 HKLRD 253 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 etc, it was accepted by the courts that all or most of the dangerous drugs involved in these drug trafficking cases were for the defendant’s own consumption.

56. The defendants in Chan Chun Fai, Chung Kam Fai, Chow Kam Lung above, were found guilty of “trafficking in a dangerous drug” for importing or exporting the dangerous drug. And it was accepted by the courts that all the dangerous drugs involved were entirely for the defendants’ own consumption. Two thirds of the drug involved in Cheuk Kin Man were for the defendant’s own consumption. The discount in sentence given to the defendants in the above cases on the basis of the dangerous drugs being for self-consumption was between 10% to 25%.

57. When considering the Court of Appeal’s recommendation that when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount on sentence should fall somewhere between 10% and 25% of the basic starting point, the background of the case in question and the facts of the other cases cited in court must be clarified before the message conveyed by the above recommendation can be accurately grasped.

58. The Court of Appeal did not indicate that in any trafficking case, where the defendant intends to use part of the dangerous drug, albeit a very minute part, for his own consumption, he should then obtain a 10% to 25% reduction of sentence. The recommendation made by the Court of Appeal only applies to circumstances where a prominent or very substantial part of the dangerous drug trafficked by the defendant is for his own consumption. We must reiterate that the gravity of the offence of “trafficking in a dangerous drug” will not be mitigated by the fact that the purpose of the trafficking is to make money to satisfy a drug addiction.

59. The above view was established early in 2002 in the case of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69. The Court of Appeal in 79H-J of the judgment stated clearly:

‘Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking.’”

33.Mr Cheng also relied on the section entitled “Postscripts” in Yeung VP’s judgment, where he provided further guidance on how a court should approach the issue of self-consumption:

“67. Where the defendant uses the ground that part of the dangerous drug involved was for his own consumption to ask for a reduction in sentence, then he must tell the court clearly his position whether a substantial part of the dangerous drug in question was for his own consumption. If the defendant adopts such a position, then the court needs to deal with it in accordance with the principle laid down in Wong Suet Hau, and if it is necessary, the court may have to decide by way of a Newton hearing whether the defendant’s claim is made out.

68. We need to reiterate that where the defendant’s claim leads to a Newton hearing by the court, then after the defendant’s claim has been rejected, the court is entitled to make appropriate adjustments according to the circumstances in individual cases to the discount in sentence the defendant will have for pleading guilty.

69. Where the position of the defendant is that only part of the dangerous drug rather than a substantial part of the dangerous drug was for his own consumption, the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.

70. We must emphasize that in the above circumstances, it is entirely in the judge’s discretion according to the circumstances of each individual case whether to give the defendant any reduction in sentence and the extent of that reduction on the basis that the defendant intended to use a small part of the dangerous drug for his own consumption.  Under normal circumstances, it is not appropriate for the defendant to use that as a ground of appeal to ask for a further reduction from the Court of Appeal.”

34.When we pressed Mr Cheng to explain where in his supplemental written submissions was the proposition that in order to receive the starting discount of 10% in Chow Chun Sang it must be established that 50%, or half, of the drugs were for self-consumption, he referred us to the following paragraphs:

“14.    Clearly, when Yeung VP said at paragraph 58 that “substantial part” or “a significant portion” of the drug must be intended for a defendant’s own consumption so that the discount of 10% to 25% is applicable, he actually had in his mind the proportions of drugs accepted for self-consumption in the case of Chow Chun Sang and the authorities referred to in that case, namely “more than half” (which is the factual background in Chow Chun Sang) and “all or most of the drugs’ (which are the factual backgrounds in Chan Chun Fai, Chung Kam Fai, Chow Kam Lung and Cheuk Kin Man) respectively.  Accordingly, the factual background in Chow Chun Sang and the facts of the authorities cited therein must be the yardsticks for a court to ascertain whether a defendant can satisfy the court that “a significant proportion” of the drug is intended for his/her consumption.

15.    Further, at paragraphs 58-59, 62-63 and in the postscript (paragraph 67) of the original Chinese judgment, Yeung VP used the Chinese words 「極可觀部分」，which in English is “a significant proportion”.  The learned Vice President deliberately chose to use the Chinese word 「極」，which carries the connotation of not only “very” but “extremely” or “utmost”. In the Respondent’s submission the use of this very word is indicative of an extremely high threshold that a defendant should satisfy the court before he is entitled to an additional discount of between 10% and 25%.

16.    It is worth noting that the sentencing judge in Chow Chun Sang accepted that “more than half” of the “Ice” was for the appellant’s own consumption.  On this basis the Court of Appeal held that a further discount of 10%, although on the conservative side, was not erroneous in principle.  It is pertinent to note that it is unclear from the judgment as to how much more than half or what percentage of the drug was held to be for the appellant’s self-consumption.”

35.We did not find that the “50% requirement” is spelt out as claimed in the respondent’s supplemental written submissions. When we asked Mr Cheng where was the “50% requirement” stated in Kong Tat Lung, he referred to paragraph 55, but all that is said there is that in Chow Chun Sang it was accepted that over half of the drugs were for self-consumption and in other cases “all or most” of the drugs were for self-consumption. 

36.As far as we are concerned, Yeung VP was stressing, and this is clearly apparent in paragraph 58, and the section entitled “Postscripts”, that for a defendant to obtain the range of discount of 10% to 25% as set out in Chow Chun Sang, the proportion of drugs for self-consumption must be “significant”.  Nowhere does he suggest that “significant” is equated with “50% or more”, nor is it  mentioned, or even suggested in the “Postscripts”, where he provides further guidance on the issue.  We are in no doubt that had he intended to make such an important statement explaining what was meant in Wong Suet Hau by “significant proportion”, he would have explicitly said so, and not left it to be merely inferred as arguably implicit in his reasoning.

(iii)  The threshold test

37.The threshold test for self-consumption is whether “all or significant proportion” of the drugs was intended by the defendant for his own consumption.  A case where “all” of the drugs is for self-consumption, may arise when a defendant brings drugs into Hong Kong, claiming the drugs are all for his own consumption.  He will be charged with trafficking because he is importing drugs into Hong Kong.  Otherwise, in cases where self-consumption is claimed, it will require the sentencing court to determine whether the threshold of “significant proportion” has been met.  What is a “significant proportion” will depend on the particular facts and circumstances of the case.  Obviously, the quantities of the drugs claimed to be for self-consumption and the total quantity of drugs involved, will have a critical bearing on whether the threshold has been met.  See HKSAR v Yeung Shek Yung, CACC 314/2016, 3 July 2017, unreported, paragraph 18. There is the risk of abuse in this avenue of mitigation, and the primary task of the sentencing court is to determine where the truth lies in a claim of self-consumption on a proper factual and evidential basis.

38.We also add that just because the threshold has been met, does not necessarily entitle a defendant to a range of discount from his sentence between 10% and 25%.  This was made clear in Wong Suet Hau where it was noted that possession of the drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drugs will be accessed by or distributed to others which may well offset much of the practical value of the mitigation that some of the drugs were for the defendant’s own consumption.

39.It was also made clear in Wong Suet Hau, and elaborated upon in HKSAR v Gurung Laxman [2017] 3 HKLRD 483, that where the drugs for trafficking and for self-consumption are each quantifiable then the defendant should be dealt with by the separate offences of trafficking in a dangerous drug and possession of a dangerous drug, and sentenced accordingly.  Here, the narcotic content of exhibit P1 was not calculated but had it been, then the appropriate course would be to sentence the appellant for trafficking in an amount less the narcotic content of exhibit P1, and for possession of the amount of the narcotic content of exhibit P1.

40.As previously noted, the judge found that the contents of the open bag (exhibit P1) were for the appellant’s own consumption, and this represented about 28.5% of the total quantity of Ice narcotic of 5.26 grammes.  In our view, this would represent a “significant proportion” of the total drugs seized from the appellant for his own consumption.  We take into account that the narcotic content of the drugs for self-consumption was about 1.5 grammes and we have borne in mind the likely term of imprisonment for possession of such a quantity of drugs.  We did not think there was a latent risk factor on what is known in the present case.  In the circumstances, we would discount the appellant’s sentence for self-consumption by 12%.

Conclusion

41.As we have noted, the judge should have adopted a starting point of 5 years and 1 month’s imprisonment that should have been enhanced by 3 months for the international element to 5 years and 4 months’ imprisonment.  The starting point should have been reduced by 12% for self-consumption to 4 years and 8 months imprisonment and further reduced by one third for the appellant’s guilty plea to 3 years and 1 month’s imprisonment.

42.For these reasons, we allowed the appeal against sentence, set aside the sentence of the judge, and in substitution for it we sentenced the appellant to 3 years and 1 month’s imprisonment.

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Ms Cheung Wai Ngan Karen, instructed by Director of Legal Aid, for the appellant