HKSAR v. Muhammad Waqas

CACC 272/2017

[2019] HKCA 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 272 OF 2017

(ON APPEAL FROM DCCC 326 OF 2017)

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Before: Hon Macrae VP and McWalters JA in Court

Date of Hearing: 15 May 2019

Date of Judgment: 22 August 2019

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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.On 4 August 2017, following his plea of guilty, the appellant was convicted by Deputy District Judge M Chow (“the judge”) of ten charges. They were:

(i)  Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

(ii)  Using markings on a vehicle with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374 (“the RTO”).

(iii)  Careless driving, contrary to section 38(1) of the RTO.

(vi)  Driving without a valid driving licence, contrary to section 42(1) and (4) of the RTO.

(v)  Using a motor vehicle without third party insurance, contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

(vi)  Failing to stop after an accident whereby damage was caused to another vehicle, contrary to section 56(1)(b) and (5) of the RTO.

(vii)  Failing to report an accident involving damage, contrary to section 56(2A) and (6) of the RTO.

(viii)  Making a false report of the commission of an offence, contrary to section 64(a) of the Police Force Ordinance, Cap 232.

(ix)  Escaping from lawful custody, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. 

(x)  Possession of a dangerous drug, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.He was sentenced on 11 August 2017 to a total term of 2 years and 9 months’ imprisonment and disqualified from driving for 2 years.

3.On 31 August 2017, the appellant filed a notice of application for leave to appeal (Form XI) against his sentence.  On 26 April 2016 leave was granted to the appellant to appeal against his sentence and an appeal aid certificate was also granted to the appellant pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D[1]. 

The Amended Summary of Facts

4.The Amended Summary of Facts that was admitted by the appellant and used for the purpose of his sentencing revealed that at around 11 am on 19 December 2016, the owner of a Mazda RX7 motor vehicle, valued at HK$80,000, left it outside Kwong Kin Trade Centre, Kin Fat Street, Tuen Mun opposite to the garage where he worked.  He left the car’s key in its ignition. At 4:30 pm the same day the owner found his vehicle was missing (Charge 1).  In order to conceal that the vehicle was stolen, a set of false licence plates were affixed to it (Charge 2).[2]

5.On 20 December 2016 at about 6:10 pm, while driving the stolen vehicle, the appellant was involved in an accident with two other vehicles (V2 and V3) which were stopped at a set of red traffic lights on Kowloon-bound Hoi Hing Road which consisted of two lanes.  The two vehicles, V2 and V3, were travelling in the left lane whilst the appellant’s vehicle (V1) was travelling in the right lane, ahead of V2.  V3 was in front of V2.  Suddenly, the appellant steered left and cut into the left lane.  In so doing the left front part of his vehicle collided with the right rear part of V3 and the left rear part of his vehicle hit the right front bumper of V2 (Charge 3).  The cost of repairs to V2 was HK$4,000 and to V3 was HK$13,800. 

6.After the accident, the appellant fled the scene (Charge 6) and did not make a report to the police (Charge 7).  How his flight from the scene came about was described in the Amended Summary of Facts as follows:

“6. PW2 and PW3 then got off V2 to confront the driver of V1 (later confirmed to be the Defendant). PW3 tried to open the door of the driver’s seat of V1 but it was locked so PW3 broke the window of the driver’s seat of V1 with his elbow and he also tried to pull the Defendant out of V1. The Defendant then kicked the driver’s seat door open and PW2 – 3 tried to grab hold of him. However, the Defendant struggled and managed to make good his escape.…”[3]

7.We should mention that PW2 was the driver of V2 and PW3 was a friend of PW2 and was a passenger in his vehicle. Coincidentally, PW2 had recognised V1 from a Facebook post and believed it to be the stolen vehicle referred to in that post.  One of the reasons for believing it was the stolen vehicle was that the false number plate had not been properly affixed over the genuine number plate at the back of the vehicle and two of the characters of the genuine number plate remained visible.  This prompted PW2 to follow the appellant’s vehicle.  However, the Amended Summary of Facts did not make clear whether the appellant knew he was being followed or whether he was aware that PW2 believed he was driving a stolen vehicle.  

8.At the time when the appellant was driving the stolen vehicle, he did not possess a valid driving licence (Charge 4) and because the vehicle was driven without the permission of the owner, the vehicle was not covered by third party insurance (Charge 5). 

9.When the appellant fled the scene, he left behind in the stolen vehicle items which could identify him, such as his Hong Kong Identity Cardand other documents containing his personal information, and his mobile phone.  In order to explain their presence in the stolen vehicle he falsely reported to the police that he had been robbed of these items (Charge 8). 

10.The appellant’s story was, ultimately, not believed and he was arrested for misleading a police officer.  He was released on bail on 22 December 2016. As part of the investigation of the theft of the motor vehicle and the accident involving V2 and V3 the police arranged an identification parade to take place at Tuen Mun Police Station on 4 January 2017.  The appellant attended the police station and participated in the identification parade.  At this identification parade the appellant was positively identified by PW3.  He was thereupon remanded in temporary cell No 2 at Tuen Mun Police Station.  At around 6:49 pm the appellant asked to be allowed to make a phone call and so he was taken from his cell to enable this to take place.  Whilst outside of his cell he managed to escape (Charge 9).  The appellant was at large for some 11 minutes, before being recaptured at 7 pm.  He was then returned to temporary cell No 2.  At 8:35 pm a police officer transferred him to cell No 1. 

11.At 10:08 pm the same police officer conducted a thorough body search of the appellant at which time he found that the appellant had lowered his underpants to below his knees and a transparent resealable plastic bag containing suspected dangerous drugs was found concealed in it (Charge 10). 

12.Charge 10 did not specify the narcotic content of the powder possessed by the appellant but simply referred to it as “0.89 gramme of a powder containing cocaine”.  In support of this charge the Amended Summary of Facts only stated:

“21. PW10 then arrested the Defendant for ‘Possession of a Dangerous Drug’. Under caution, he admitted that he had picked it up at an adjacent cell.

22. The Government Chemist subsequently confirmed that the resealable plastic bag contained 0.89g of a powder containing traces of cocaine.”[4](Emphasis added)

13.Thus, nothing was contained in the Amended Summary of Facts in respect of the actual narcotic content of the powder and no explanation was advanced by either party as to what was meant by “traces of cocaine”.

The mitigation

14.The appellant was 23 years old at the time of his sentence.  He is a Pakistan national who came to Hong Kong in 1993.  His legal representative, Mr Chow, informed the court that the appellant had worked as a delivery man, earning about HK$13,000 monthly.  He has a wife who is living in Pakistan and at the material time, he was living with his parents and two younger brothers in Hong Kong.  Mr Chow told the court that the appellant was willing to compensate the victims for the cost of repairs to their motor vehicles which amounted in total to HK$25,800 as the damage to V1, the stolen vehicle, was assessed as costing HK$8,000 to repair.  However, the appellant was only able to offer HK$3,000 to $4,000. 

15.In respect of the individual charges, Mr Chow explained to the judge that when the appellant took the stolen vehicle, he did so out of “greed and then want to have fun with a car”[5] and said that his client would never touch any vehicle in the future.  He said the appellant had found the vehicle on the roadside of a street in the village of Ip Yuen, which is located outside of Tuen Mun.

16.The accident involving the other vehicles occurred, Mr Chow said, because the appellant was nervous when he drove the stolen vehicle.  The appellant ran away from the scene because he was scared and confused. 

17.In regard to the false report to the police, Mr Chow claimed that the appellant foolishly followed some bad advice provided by his friends.  As to why the appellant escaped from lawful custody Mr Chow submitted that this was due to the appellant’s nervousness, youth and his confused state of mind.

18.In respect of the drug possession charge it was asserted that the appellant had no drug addiction history and that the circumstances of how hecame to possess the drugs were as he told the police.  His explanation to the police was referred to in the Amended Summary of Facts.  Paragraph 26 of that document refers to a video record of interview on 5 January 2017 during which the appellant stated that:

“… He picked up the bag of dangerous drugs from the temporary cell inside the Police Station and he hid it in the leg of his pants as he was curious.…”[6]

19.Mr Chow emphasized to the court that the dangerous drug contained only a trace of cocaine, the appellant was genuinely remorseful for all his offending and the offences were not premeditated.

20.The appellant’s criminal record was admitted. The appellant was first convicted of two charges of theft in 2009 and was placed on probation for 12 months.  He breached the probation order and subsequently received a suspended sentence of 7 days’ imprisonment.  In 2012 he was convicted of two counts of robbery for which he received a total sentence of 6 years’ imprisonment after pleading guilty.

The judge’s Reasons for Sentence

21.Having heard the mitigation advanced on behalf of the appellant, the judge then made a number of comments in respect of the various charges.  For Charge 1 she said:

“23.   I accept that the defendant was an opportunistic thief.  He took the car when the door was unlocked and the car key was in the ignition.  However, the car was damaged when the defendant cut into PW2 and 4’s lane carelessly.

24.  The cost of repair of KM8879 [i.e. V1] was $8,000.  He was not in a position to compensate PW1.

25.  Taking into account that the stolen vehicle was worth about $80,000, the damage to the vehicle was not serious (at least PW1 got it repaired), the defendant acted alone, I am satisfied that the starting point after trial is 3 years.  Giving the defendant one-third discount, it comes down to 2 years.”[7]

22.She explained why she regarded Charge 2 as serious:

“26.  The defendant used another number plate, GT426, to cover the original stolen vehicle.  The whole purpose was to prevent the police or PW1 to track down the whereabouts of KM8879.

…

32.  Charge 2 is a serious offence, carries a heavy maximum sentence of 3 years and a fine of $10,000.  For the reasons stated above, I adopt a starting point of 12 months, reduced to 8 months for his guilty plea.”[8]

23.For Charge 3 the only comment she made in respect of the appellant’s culpability was that he displayed a “bad driving manner and judgment”.  Her comments relating to Charge 3 were as follows:

“33. Charge 3 is the careless driving offence. Taking into account that it was a stolen vehicle, further aggravated by pre‑meditation of using a false number plate without valid driving licence and third party insurance, bad driving manner and judgment, I am satisfied that a starting point of 3 months is appropriate. I reduce to 2 months because of his guilty plea.”[9]

24.For Charge 4 the judge imposed a sentence of 3 weeks’ imprisonment and for Charge 5 she imposed a sentence of 3 months’ imprisonment and disqualification for 2 years.

25.She also regarded the offence in Charge 6 as serious, saying:

“36.  Charge 6, failing to stop, is a serious offence.  A maximumsentence is $10,000 and 12 months.  I take 4½ months as the starting point.  Granting one-third discount, it comes down to 3 months.”[10]

26.In respect of Charge 7 she said:

“37.  Charge 7 is an offence for failing to report, a maximum sentence of $15,000 and 6 months.  I consider that 3 months is appropriate in the present case.  I also reduce the sentence to 2 months to reflect his guilty plea.”[11]

27.In respect of Charge 8 her comments were:

“43.  It is clear that a fine is inappropriate in the present case.  Anyone commits a serious offence such as theft of vehicle then followed by a series of crime cannot expect a light sentence.  I consider a proper sentence should be 3 months, reduced to 2 months, to reflect his guilty plea.  I order 1 month be run consecutively to Charge 1.  The total sentence is now 2 years 5 months.”[12]

28.In respect of Charge 9 she said:

“47.  Taking into account that it was a calculated move by the defendant and he was soon rearrested not too far away from the police station, I consider a starting point of 6 months is appropriate to reflect the gravity of the offence.  One-third discount, the sentence is reduced to 4 months.”[13]

29.For Charge 10 the judge appears to have referred to the sentencing guideline of 12 to 18 months’ imprisonment for simple possession of a dangerous drug that was laid down by the Court of Appeal in HKSAR v Mok Cho Tik[14].  She said:

“48.  This is a charge of simple possession — 0.89 grammes of a powder containing cocaine — and there is authority to say that usual sentence is in the range of 12 to 18 months.  In view of the quantity of the drug offence, I take 12 months as the starting point, reduce to 8 months.”[15]

30.In summary, the judge imposed the following sentences on the appellant:

Charge	Offence	Starting point	Sentence
1	Theft	3 years	2 years
2	Using markings on a vehicle with intent to deceive	12 months	8 months (4 months consecutive)
3	Careless driving	3 months	2 months
4	Driving without a valid driving licence	4.5 weeks	3 weeks
5	Using a motor vehicle without third party insurance	4.5 months	3 months and 24 months’ disqualification order for not driving any type of vehicle
6	Failing to stop after an accident whereby damage was caused to another vehicle	4.5 months	3 months
7	Failing to report an accident involving damage	3 months	2 months
8	Making false report of commission of offence	3 months	2 months (1 month consecutive)
9	Escape from lawful custody	6 months	4 months
10	Possession of a dangerous drug	12 months	8 months (4 months consecutive)
	Total sentence:      33 months’ imprisonment

31.Finally, the judge addressed the issue of totality and decided that the sentences for charges 2 to 7 and charges 9 to 10 should run concurrently with each other but that 4 months of the sentences for charges 2 to 7, 1 month of the sentence for Charge 8 and 4 months of the sentences for charges 9 to 10 should all run consecutively to the sentence for Charge 1.  By this route, the judge arrived at a total sentence of 2 years and 9 months’ imprisonment and a 24 months’ disqualification order.

32.In respect of the appellant’s offer to compensate the victims, the judge had regard to the background of the appellant and was of the view that he was financially unable to pay compensation and so did not make any compensation order.

The Grounds of Appeal

33.In his Amended Perfected Grounds of Appeal Mr John Haynes,counsel for the appellant, set out seven grounds of appeal against the individual sentences and their totality, namely:

(i)  the starting point adopted for Charge 1 was manifestly too harsh given its unusual factual matrix;

(ii)  in respect of Charge 6, the judge failed to consider the fact that PW2 and PW3 were fierce in attempting to confront the appellant and that their conduct might cause even a mature and law abiding citizen to panic and “fail to stop” and “fail to report” after the accident;

(iii)  the overall sentence did not adequately reflect the immature, impulsive, amateurish and ineffective circumstances of these crimes;

(iv)  the sentences, both individually and in their totality were manifestly excessive;

(v)  the Court of Appeal should substitute an absolute discharge for the sentence for Charge 6 in view of the peculiar and intimidating circumstances existing in respect of that offence;

(vi)  the sentence for Charge 10 was manifestly excessive; and

(vii)  the quantity of dangerous drug was so small that the judge should have adopted a de minimis approach to the sentencing of Charge 10.

34.Mr Haynes in his written submissions emphasized that the mitigating factors including the appellant’s youth, lack of planning, foolishness and impulsiveness were not given proper consideration by the judge, rendering the sentences imposed manifestly excessive.

The respondent’s submissions

35.Mr Ira Lui, leading Mr Andy Lo, for the respondent, submitted in respect of Charge 1 that there was nothing “unusual” in the commission of the theft offence that would justify a departure from the usual sentence of 3 years’ imprisonment that was approved by the Court of Appeal in HKSAR v Yu Chi-chiu[16].

36.For Charge 2, Mr Lui submitted that the facts of this offence undermined the appellant’s mitigation that he had committed the theft for fun and the 12‑month starting point adopted by the judge was entirely proper and accurately reflected the appellant’s criminality.

37.Regarding Charge 3 for careless driving, Mr Lui submitted that the appellant’s culpability was not low, as a high level of caution was required of a prudent driver when approaching or stopping at a junction controlled by traffic lights.  Furthermore, the cost of repairs to the damaged vehicles indicated that the collision was not minor and, more importantly, the fact that the appellant had never held any valid driving licence caused great potential danger to other road users.  All these matters justified adopting a starting point of 3 months’ imprisonment. 

38.For Charge 4, Mr Lui submitted that driving without a valid driving licence is a serious offence and the fact that the appellant had never held any valid driving licence is a serious aggravating feature.  This level of criminality justified an immediate custodial sentence even if the appellant had no similar previous conviction. 

39.In respect of the offence of using a motor vehicle without third party insurance (Charge 5) Mr Lui relied on the remarks of Yeung J, as he then was, in HKSAR v Wong Chi-ming[17], that the offence of driving without insurance is a very serious offence as there is the possibility that victims in traffic accidents may be left without any compensation.[18]

40.Regarding Charges 6 and 7, Mr Lui acknowledged that precedents suggested that in a majority of cases, offenders were normally dealt with by way of financial penalties and as a matter of principle, a lenient disposal may be justified where there was no injury to the person. 

41.The sentences imposed for Charges 8 and 9 were, Mr Lui submitted, entirely appropriate and properly reflected the appellant’s culpability.

42.For Charge 10, Mr Lui submitted that the starting point of 12 months’ imprisonment is well within the judge’s discretion to impose according to Mok Cho Tik.  However, Mr Lui fairly conceded that the court may consider a modest downward adjustment of the starting point and reduce it to 9 months’ imprisonment.

43.In addressing the observations made by the leave judge on the use of the words “traces of cocaine” Mr Lui referred to section 2(3) of the Dangerous Drugs Ordinance, Cap 134, where it provides that “Any quantity of a dangerous drug shall be a dangerous drug for the purposes of this Ordinance notwithstanding that the quantity is insufficient to be measured or used.”  Accordingly, even if the cocaine in question is not quantifiable and/or insufficient to be used by an abuser, the conviction on Charge 10 would not be vitiated.

44.Mr Lui also applied for us to receive materials which explained how a practice had arisen, in consultation with interested parties, by which the Government Chemist would not be required by the Director of Public Prosecutions (“DPP”) to measure the quantity of narcotic where the amount of the dangerous drug seized did not exceed one gramme, was no more than 2 packets or straws and the offender was to be charged with an offence of simple possession only.  This practice was proposed in order to lessen the workload of the Government Chemist and assist it to meet a target turnaround for issue of its certificates of 14 days.  But this did not mean that every dangerous drug less than one gramme in weight would necessarily have a narcotic content that is incapable of being measured.  The new practice was simply an attempt to make more efficient use of limited resources, so that target turnaround times in the issue of certificates could still be met.  This new practice came into effect on 1 January 2000.  This was initially only in respect of seizures thought to contain heroin hydrochloride but this practice was extended by the DPP, as from 1 October 2011, to all types of drugs.

45.Mr Lui also obtained an expert report from Professor Tang Wai Kwong of the Department of Psychiatry of the Chinese University of Hong Kong, who has since 2007 been in charge of the Substance Abuse Clinic at the Prince of Wales Hospital.  Professor Tang in his report confirmed that the minimum dose of pure cocaine that would produce subjective effects on an abuser is between 8 and 10 milligrammes.  The cocaine in question has, since the institution of this appeal, been weighed and it is now known to be 520 milligrammes in weight, which is higher than the minimum dose.  The mixture would, therefore, be capable of providing a user with a narcotic effect.

46.Regarding the totality of sentence, Mr Lui submitted that the correct approach is to determine whether the second or other offences add to the culpability of the first and if it or they do then wholly or partially consecutive sentences will be appropriate, subject to the totality principle.  He relied on the Court of Appeal’s judgment in HKSAR v Ngai Yiu Ching[19].

47.In the present case, Mr Lui submitted that there are cogent reasons for the court to impose sentences with a substantial consecutive element.  He argued that:

(a)  Charges 2, 4 and 5 warranted an immediate custodial sentence even for a first offender and as they were committed on a subsequent date to the initial theft they clearly added substantially to the appellant’s culpability; and

(b)  Charges 8 – 10 were, by their commission dates and nature, entirely separate and distinct from the other charges and added to the appellant’s culpability.

Discussion

48.The theft of motor vehicle charge is a serious charge.  The appellant’s explanation that he committed the offence out of a sense of fun is an attempt to portray his conduct as youthful, spirited joy-riding with a level of culpability more consonant with the offence of taking a conveyance without authority.

49.We do not agree.  The fact that the appellant’s possession of the vehicle only came to an end because he was involved in an accident and the fact that he knew false number plates were affixed to it and had an intention to conceal the true identity of the motor vehicle all point to an intention to exercise long term possession of it.  We see no reason to depart from the 3 years’ starting point. 

50.Charge 2 is a serious offence and, as we have said, evidences an intention to inhibit investigation by the police of the theft of the vehicle and recovery by the owner of it.  It undoubtedly adds to the culpability of the appellant and, subject to the application of the totality principle, a court would be justified in ordering that part of the sentence for this offence should be served consecutively to the sentence for Charge 1.

51.The offence of careless driving, Charge 3, encompasses a wide range of culpability and the more serious versions of it may well attract a custodial sentence.  But we do not agree that the appellant’s driving falls into this category.  His car was stationary at traffic lights.  He decided he would change from the lane he was in to an adjacent lane. He tried to achieve this by turning his car into that lane and in doing so bumped into the two cars between which he was trying to insert his car.  This caused minor damage to those cars and to his car.  It is not suggested that his driving was due to anything but an error of judgment. 

52.The total damage bill to the 3 vehicles was $25,800.  This is not a great amount for 3 vehicles and is not a reliable and clear indicator of either the extent of the damage to them or the level of carelessness of the appellant’s driving.  We have seen the photographs of the damage to the vehicles and they show only minor damage.  It must be remembered that the victim vehicles were stationary and the appellant was manoeuvering his vehicle from a stationary position.

53.In these circumstances the quality of his driving, as revealed by the Amended Summary of Facts was not so poor as to warrant the imposition of a custodial sentence.  We would substitute for the sentence of the judge a fine of $2,000.

54.We agree with Mr Lui that the offence of driving without a valid driving licence, Charge 4, is a serious offence. In light of the particular circumstances of this case we would not disturb the sentence of the judge of 3 weeks’ imprisonment.

55.Likewise, in respect of Charge 5, using a motor vehicle without third party insurance is also a serious offence.  However, the fact that there is no third party insurance is an inevitable consequence of driving a stolen vehicle.  We would order that this sentence be served concurrently with the sentence for theft of the vehicle.

56.The appellant’s failure to stop at the scene of an accident (Charge 6) was clearly prompted by the fact that he was driving a stolen vehicle and his fear of detection and his fear of the victims who had demonstrated an aggressively hostile attitude towards him.  This was not a hit and run situation, there were no injuries to anyone and the appellant’s flight from the scene did not prevent him from being identified as the driver of the vehicle that caused the accident.  When viewing the totality of this appellant’s conduct we do not think that a custodial sentence is appropriate and we substitute for the sentence of the judge a fine of $500.  For the same reasons, the failing to report an accident offence (Charge 7) also warrants only a non-custodial sentence and for this offence we fine the appellant $500.

57.We agree with Mr Lui that the sentences for Charges 8 and 9 are appropriate and we are not persuaded that there is any reason for disturbing them.

58.This brings us to Charge 10 which is of concern to us as there is present the complicating factor of the practice implemented by the DPP of not requiring the Government Chemist to quantify the amount of narcotic in a substance when the quantity of the suspected dangerous drug did not exceed one gramme.  Hence, in the present case the particulars of dangerous drug are limited to no more than the weight of the substance in which the narcotic is contained.

59.There are two consequences of this practice. The first is that a sentencing court will not know the quantity of the narcotic and so cannot use the quantity of narcotic, as opposed to the quantity of the mixture, as a factor to which it can have regard in determining the appropriate sentence.  The second is that the sentencing court will not know whether the dangerous drug being possessed by the offender is capable of providing the user of it with a narcotic effect or is just a useless substance.  We know from the evidence of Professor Tang that when the quantity of cocaine drops to lower than 10 milligrammes the user will not derive any narcotic effect from it.   

60.These consequences do not sit well with the leading case on sentencing for possession of a dangerous drug, namely the Court of Appeal’s judgment in HKSAR v Mok Cho Tik[20].  This judgment was handed down on 7 February 2001, a year after the change in the DPP’s practice of not obtaining a Government Chemist’s certificate specifying the quantity of narcotic in seizures below one gramme. 

61.In Mok Cho Tik the Court of Appeal followed the three-step process to the sentencing of offenders for this offence that was laid down by the Court of Appeal in HKSAR v Wan Sheung Sum[21].  The first step is the assessment of an appropriate starting point for the length of the custodial sentence where the court determines that a custodial sentence is appropriate. The second step is the enhancement of that starting point to allow for the latent risk that the drugs, or a part of them, might end up being disseminated to others.  The third step is the discounting of the final starting point to allow for any mitigation. 

62.In respect of the first step it is important to note that although the Court of Appeal said in Mok Cho Tik that “the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would have in his possession should be in the range of 12 to 18 months” it went on to explain that this is not an inflexible tariff.  It said:

“ Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. …”[22] (Emphasis added)

63.Even though the Court of Appeal said in Mok Cho Tik that “the quantity will be the main governing factor which will determine where the starting point will lie”, a sentencing court will be deprived of this information when the seizure is less than one gramme.  It is important to note that the drug seizures in both the Wan Sheung Sum and Mok Cho Tik cases, and in all the cases discussed in those judgments, were well in excess of one gramme.  It is not clear to what quantities the Court of Appeal was referring when it said in Mok Cho Tik that the 12 – 18 months sentencing range “does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant”.  The quantity of narcotic in Mok Cho Tik was 15.724 grammes and in its judgment the Court of Appeal referred to cases where the quantity of dangerous drugs seized had ranged from 19.68 grammes to 95.36 grammes.  The court did not refer to the practice adopted by the DPP of not requiring the Government Chemist to determine the narcotic content of the heroin mixture and did not expound further on the sentencing of offenders who possessed only “very small quantities” of dangerous drugs.  One is left wondering whether the court ever contemplated that its 12-18 months guideline would apply to quantities less than one gramme.

64.Furthermore, even though Mok Cho Tik requires the court to assess whether there is a latent risk that the drugs may be disseminated to others, the practice of the DPP deprives the sentencing court of the very information that is crucial to this assessment.  Mr Lui says that for amounts under one gramme the prosecution will not assert that there is any latent risk.  Presumably, this is because a quantity less than one gramme may represent only one dose to a user.

65.Apart from the problems in applying Mok Cho Tik that are created by the DPP’s practice, the sentencing process is further complicated by the fact that the Dangerous Drugs Ordinance, Cap 134, imposes criminal liability for any quantity of dangerous drug, no matter how minuscule the quantity or how low in purity it is.  This is simply a consequence of section 2(3) of the ordinance which provides:

“Any quantity of a dangerous drug shall be a dangerous drug for the purposes of this Ordinance notwithstanding that the quantity is insufficient to be measured or used.”

66.As a consequence of the imposition of criminal liability for possession of a dangerous drug possessed of one or both of these characteristics the offence creates, by its very definition, a wide range of culpability by which it may be committed; wider than was, perhaps, appreciated at the time that the Court of Appeal handed down its decision in Mok Cho Tik and when the DPP changed its practice in respect of dangerous drug seizures below one gramme.  At the low end of the range the culpability of an offender will be for possession of a quantity of narcotic possessed of one or both of these minimalistic characteristics of being insufficient to be measured or used.  At the high end of the range, there will be possession of a dangerous drug containing a measured quantity of narcotic that is sufficient for use and which has an attendant latent risk of further dissemination.  In reality there may never have been cases which fell into the lower end of the range and for cases at the high end the decision of this court in Mok Cho Tik applies.

67.The amended practice of the DPP results in the prosecution asking the court to assume that there is no latent risk but also asking it to find that the substance possessed by the offender contains sufficient narcotic to be of use to him.

68.We shall turn to the facts of the present case shortly but at this stage we make the point that the explanation of this appellant as to how he came by the cocaine may well demonstrate that latent risk may continue to exist even when the amount is less than 1 gramme and the inference of sufficiency of narcotic to be of use may not always be available to the sentencing court. 

69.This brings us to what we regard as the key to identifying a principled approach to sentencing for possession of a dangerous drug where as a consequence of the amount of the mixture being less than one gramme the amount of the narcotic in the mixture is unknown.  The key is to recognise that although it is the role of the courts to assess the culpability of an offender as an integral part of the sentencing process, that assessment is performed on the basis of the evidence placed before it.  After a trial it will be the evidence adduced at trial.  On a plea of guilty it will be the Summary of Facts and any other material available to the court. 

70.What needs to be emphasized is that the court is not responsible for what material it has available to it for assessing the culpability of an offender; this is the responsibility of the parties and, of course, predominantly of the prosecution.  If the prosecution wishes the court to sentence an offender on the basis that the offender possessed a quantity of dangerous drug that was suitable for use then it will be the responsibility of the prosecution to ensure that the sentencing court is possessed of sufficient evidence to make such a finding.  This can be a finding by inference as well as by direct evidence.

71.As we have said, this court’s decision in Mok Cho Tik deals with the possession of a dangerous drug with a known quantity of narcotic which is sufficient for use by a drug user and from which the trial court can assess whether there exists a latent risk of further dissemination of the dangerous drug.  If, by its decision to allow the Government Chemist not to measure the quantity of narcotic in seizures less than one gramme, the prosecution deprives the court of the information it needs to apply Mok Cho Tik, the prosecution has, in effect, created the situation where such cases are removed from the Mok Cho Tik guideline.  Mok Cho Tik can only be applied to such cases if the prosecution places before the sentencing judicial officer material that will enable him to find, by direct evidence or inference, that the quantity of narcotic in the dangerous drug was sufficient for use.

72.In our view, in the absence of the judicial officer being able to make such a finding, the offender would have to be sentenced on the basis that he possessed the particularized quantity of a dangerous drug but that the quantity of narcotic was “insufficient to be measured or used”.  In this situation the court would have to look to any circumstances surrounding the commission of the offence in order to assess the culpability of the offender. 

73.The only guidance this court can give in respect of sentencing an offender at this low end of the culpability range is to make the obvious point that the lower the level of culpability the less harsh the sentence will be.  Clearly, a less harsh sentence would be a very short custodial sentence or, more likely, a non-custodial sentence.  The sentence would have a much greater focus on rehabilitation than punishment.  By a very short custodial sentence we have in mind one that is measured more in days to weeks than months and which exposes the offender to the effect of “the clang of the prison gates” without inhibiting his ultimate rehabilitation.

74.Turning now to the facts underlying Charge 10, it is clear that the appellant came to be in police custody as a consequence of his being arrested when he was identified by PW3 in an identification parade that took place at Tuen Mun Police Station on 4 January 2017.  At the time he participated in the identification parade he was on police bail.  This means that if the appellant’s claim that he found the dangerous drug in the police cell is not true then he attended Tuen Mun Police Station with the dangerous drug in his possession.  Frankly, the behaviour of this appellant throughout his crime spree was so extraordinary that anything is possible but we are prepared to accept that the appellant would not have been either so stupid or so reckless to take to a police identification parade a quantity of cocaine when he was not a user of dangerous drugs.

75.Although the appellant’s claim as to how he came by the dangerous drug was contained in the Amended Summary of Facts it was not referred to by the judge when sentencing the appellant. 

76.If the appellant’s explanation is accepted then, arguably, it provides an example of where latent risk could arise even though the quantity of dangerous drug was under one gramme.  This is because the appellant’s mitigation is that he is not a drug user and he did not bring the drugs with him to the police station but found them in the police cell in which he was being detained.  In this situation the concern of latent risk arises because the appellant, knowing that what he had found in the cell was a dangerous drug, made a conscious decision to take possession of it.  If he was not intending to use it himself why take possession of it unless it was in order to provide it to others.  The appellant’s explanation shows, on the one hand, that he acquired the dangerous drug “innocently” and did not actively seek it out.  At first glance, this might be regarded as mitigating his possession of it.  However, his decision to keep the dangerous drug, as evidenced by his act of concealing it on his person, may well be thought to aggravate his possession of it by giving rise to the likelihood of latent risk.  

77.Part of the additional evidence Mr Lui applied for us to receive was the weight of the narcotic.  That information confirms that the narcotic was sufficient to be measured and sufficient to be used and it would have provided a user of it with a narcotic effect.

78.We must decide whether it is proper for us to receive this evidence.  On the one hand this evidence is not fresh evidence as it was always capable of being obtained by the prosecution and the fact that it was not so obtained was due to a deliberate decision not to place this information before the court below.

79.The discretion we have under section 83V(1) is a broad and unfettered one, empowering us to receive the evidence if we think “it necessary or expedient in the interests of justice” to do so.  Section 83V(2) is a further power which requires us to satisfy ourselves that:

(i)  the evidence is credible; and

(ii)  there is a reasonable explanation for the failure to adduce the new evidence in the lower court proceedings.

80.In the situation of an appeal against sentence it is also necessary for us to bear in mind that under section 83V(5):

“(5) In no case shall any sentence be increased by reason of or in consideration of any evidence which was not given at the trial.”

81.We have no difficulty in deciding that it is in the interests of justice to receive the evidence that explains how the practice of the DPP in respect of seizures less than one gramme came to be employed. Likewise, in respect of the evidence of Professor Tang on the quantity of cocaine needed to provide a user with a narcotic effect.

82.However, the application to place before us the actual narcotic content of the mixture with which the appellant was charged poses a more difficult question for us and raises the issue of whether, on a re-sentencing of the appellant on Charge 10, the prosecution can ask us to have regard to facts which were not before the court below when those facts may affect, adversely to the appellant, this court’s assessment of his culpability.  There is nothing in the Amended Summary of Facts which would enable an inference to be drawn that the mixture contained sufficient cocaine to provide a user with a narcotic effect. Indeed by asserting that it only contained “traces of cocaine” it gave force to the possibility that it might not contain sufficient cocaine to provide a user with narcotic effect.  That would cause the appellant to be sentenced differently from a person who falls to be sentenced on the basis that he possessed a quantity of dangerous drug which contained sufficient narcotic for it to be used.

83.The existence of the DPP’s practice, which has been implemented for many years, provides a reasonable explanation for the prosecution’s failure to advance this evidence at the court below.  Furthermore, there does not appear to be any Court of Appeal authority dealing with the effect of section 2(3) of Cap 134 on the culpability of offenders charged with a section 8 offence in which the quantity of narcotic is not particularised and there does not appear to be much in the way of Court of Appeal guidance post Mok Cho Tik on the sentencing of section 8 offenders for very small quantities of dangerous drug.  Finally, we shall in fact be reducing the appellant’s sentence, not increasing it, but only after making an assessment of the appellant’s culpability.  That assessment must be a true assessment after the court has been informed of all the relevant facts.  It would be quite wrong to make that assessment on a false basis.  We shall, therefore, also receive this evidence.

84.Given the circumstances of this appellant and how he came into possession of this dangerous drug we substitute for the sentence of the judge on Charge 10 a sentence of 1 month’s imprisonment.

85.We would impose final sentences on the appellant as follows:

Charge 1	-	2 years’ imprisonment
Charge 2	-	8 months’ imprisonment
Charge 3	-	Fine of $2,000
Charge 4	-	3 weeks’ imprisonment
Charge 5	-	3 months’ imprisonment and 24 months disqualification
Charge 6	-	Fine of $500
Charge 7	-	Fine of $500
Charge 8	-	2 months’ imprisonment
Charge 9	-	4 months’ imprisonment
Charge 10	-	1 month’s imprisonment

86.It then becomes necessary to apply the totality principle as someof the offences can, in principle, be ordered to be served partially consecutively.  These offences are those contained in Charges 2, 4, 8, 9 and 10.  Given that Charge 4 does not attract a lengthy custodial sentence and given the orders we are minded to make in respect of Charges 2, 8 and 9 we shall not order any part of the sentence for Charge 4 to be served consecutively.  As Charge 10 is a completely separate charge in nature from the other offences we would have ordered, had there not been other considerations, that this sentence should be served wholly consecutively.

87.Absent any other sentencing consideration we would have been minded to order that 2 months of the sentence for Charge 2, the whole of the sentences for Charges 8 (2 months) and 9 (4 months) be served consecutively to the sentence for Charge 1.  This, together with the sentence for Charge 10, would make a total sentence of 2 years 9 months’ imprisonment.  This would have resulted, by a different route, in the same total sentence that was imposed by the judge.

88.However, we have been troubled by the conduct of this appellant and have endeavoured to better understand him.  We have been told personal matters about him which it would not be appropriate to set out in this judgment but which persuade us to extend to him some further leniency.  As sympathetic as his personal situation may be we cannot reduce his sentence by anything more than a further 3 months.  This will result in a total sentence of 2 years 6 months.  In order to achieve this total sentence we shall alter the orders of consecutiveness that we would have made, as set out in paragraph 87 above, and order that 2 months of the sentence for Charge 2 and the whole of the sentence for Charge 9 be served consecutively to the sentence for Charge 1.

Disposition

89.For these reasons we allow the appeal.  We do not disturb the sentences of the judge on Charges 1, 2, 4, 5, 8 and 9. We set aside the sentences of the judge for Charges 3, 6, 7 and 10 and in their place we fine the appellant $2,000 for Charge 3, $500 for each of Charges 6 and 7 and in respect of Charge 10 we sentence the appellant to 1 month’s imprisonment.

90.We further order that the sentences for Charges 4, 5, 8 and 10 be served concurrently with each other and with the other sentences, but that 2 months of the sentence for Charge 2 and the whole of the sentence for Charge 9 be served consecutively to the sentence for Charge 1.  This makes a total sentence of 2 years 6 months’ imprisonment.

Mr Ira Lui ADPP (Ag) and Mr Andy Lo SPP (Ag), of the Department of Justice, for the respondent

Mr John Haynes, instructed by Haldanes, assigned by DLA, for the appellant