HKSAR v. Cheung Fai Ho

HCMA 132/2021

[2022] HKCFI 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 132 OF 2021

(ON APPEAL FROM STCC 49 OF 2021)

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  17 & 25 January 2022

Date of Judgment: 25 January 2022

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JUDGMENT

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Introduction

1.The appellant pleaded guilty before Tsui May-har Stephanie, Magistrate on 26 February 2021, to the offence of trafficking in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134.  He was sentenced on 12 March 2021 to 2 months’ imprisonment.  By his notice of appeal, dated 17 March 2021, the appellant appeals against that sentence on the ground that it was too severe.

Brief Facts

2.An Instagram account under the username of ‘spacemanpharm’, was suspected of being operated for the supply of dangerous drugs between July and August 2020.  DPC 12422 (PW1) conducted what is known as a ‘controlled buy’ operation in which the account holder offered cannabis for purchase.  On 8 April 2020, PW1 met up with the defendant at Citylink Plaza at No 1 Sha Tin Station Circuit and paid $3,700 to the defendant for which he was provided with 2 vials of cannabis oil.  Upon arrest and caution the defendant admitted trafficking in herbal cannabis.  The government chemist certificate in respect of the two vials of what appeared to be cannabis oil identified the contents as a total of 1.28g of a liquid containing tetrahydrocannabinol.

3.On 29 March 2021, the appellant was granted bail by this Court.  By way of a side note, the Court was not provided with the information it has received today nor, at that stage, the Reasons for Sentence.  It was unfortunate neither party sought to explain the background to this offending as the Court would have taken an entirely different view, despite his previous good character and the quantity of drugs involved.  I should say neither Counsel appearing today appeared on that occasion.

Mitigation

4.The defendant was a 21‑year‑old student at City University and was of clear record.  He submitted letters from his father, sister and a social worker.  He informed the court that his father had cancer and his mother suffered from a mental illness.  Unfortunately, his father has since passed away.  The motive for his offending was to pay for his father’s medical expenses and to care for his mother.  Whilst he had been referred to the social services, his social worker wrote to the court to say that despite his short comings, the defendant had tried to improve himself.

Reasons for Sentence

5.The learned Magistrate considered the relevant authorities and was bound by them to the extent that they applied to the case at hand.  The learned Magistrate did not indicate a starting point for sentence after trial.  Defence Counsel submitted that cannabis oil was five times more potent than cannabis resin, although the learned Magistrate found it to be four times higher[1]. He submitted that the equivalent amount of cannabis resin for the purposes of sentence was 6g.  The learned magistrate presumably adjusted that figure to 5.12g given her own reference to the potency.  An aggravating feature was the provision for sale via Instagram to the public at large.  It was this feature which caused the Magistrate to consider that only a custodial sentence was appropriate.  With that in mind, the Magistrate sentenced the defendant to a term of imprisonment of three months which was reduced by one third for his plea of guilty resulting in a term of imprisonment of two months.

Perfected Grounds of Appeal Against Sentence

6.By his perfected grounds of appeal, the appellant submits that:

Ground One

The starting point adopted by the learned Magistrate was manifestly excessive.

Ground Two

The learned Magistrate erred in principle by failing to specify the factors which she took into account.

The Law

7.The Court is much obliged to Mr Daryanani for his comprehensive coverage of the sentencing authorities but one has to remember that this is only 1.28g of cannabis oil and not significantly larger amounts of ketamine or cocaine as in Secretary for Justice v Chau Tsz Tim[2] or Secretary for Justice v Ho Wan Chiu[3] which considered 140g of ketamine and 35g of cocaine respectively.

8.There have previously been some guidelines as to the sentencing of cannabis.  Attorney General v Chan Chi Man [1987] HKLR 221, provided for a term of imprisonment of 4 to 8 months for trafficking in 500g of cannabis resin whilst anything under 500g was at the court’s discretion.  Attorney General v Tuen Shui Ming & Anor [1995] 2 HKCLR 129 revisited the tariff in Chan Chi Man for cannabis resin, deleting the lower bands and simply stating that up to 2,000g of cannabis resin attracted a sentence of imprisonment of 16 months.  On a strictly mathematical basis that would mean that 1,000g would attract a starting point (“SP”) for sentence after trial of 8 months’ imprisonment and 500g would attract a SP of 4 months, working out at approximately 125g per month as a ball park figure or 4.1g per day.  The defendant had only 1.28g.

9.Perhaps, more importantly Tuen Shui Ming noted that cannabis resin is usually found to be four times more potent than herbal cannabis and that cannabis oil, as we have here tends to be four times more potent than cannabis resin.  If one quadrupled the quantity of cannabis oil recovered here to allow for its increased potency it would amount to 5.12g or the Court could take the appropriate mathematical sentence for 1.28g and quadruple that.  On either approach the sentence would be approximately two days.

10.On the other hand, a more recent case, that of HKSAR v Chor Lui [2001] 3 HKLRD 95, HCMA 535/2001 suggests that a sentence of two months after plea for 0.24g of herbal cannabis was not manifestly excessive although that sentence took into consideration the previous convictions of the defendant for possession and the fact that he was operating within a discotheque.  That latter element militated towards a custodial sentence.

Analysis

11.With respect to Ms Ho, the learned Magistrate did not indicate a starting point for sentence.  We do not know what that was. If it had been calculated by reference to the quantity of drugs sold and by taking into account an adjusted weight for the higher potency, then following AG v Tuen Shui Ming, if imprisonment was appropriate, it would have been a matter of days and not months.  However, from a reading of the Reasons for Sentence, this was not how the learned Magistrate approached her task.  She was deeply concerned by the operation which underpinned the trafficking.  This was a novel commercial enterprise with an ability to reach a significant market. It was clear that her reasoning centred upon this issue.

12.Following HKSAR v Herry Jane Yusuph [2020] HKCA 974, per Macrae VP, the court should look first at the gravity of the offence or harm being done by the offence charged.  This is not always limited to the type or quantity of drugs concerned even though this is the usual practice by seeking assistance from the trafficking bands.  A strict application of the authorities at this early stage would have resulted in a sentence of days not weeks or months.  The amount of drug was insignificant but the potential harm from the underlying operation was not.  The background to this offending had to be borne in mind to assess whether the only approach should be that as to quantity.

13.Thereafter, as McWalters DHCJ said in HKSAR v Chan Ho Kwai HCCC 4/2020, it may not be possible to apply any guidelines until the Court takes a view as to the role played by the defendant.  The appellant was apparently the sole operator of this enterprise. He did not suggest otherwise.  He advertised on Instagram, took the orders and he delivered the dangerous drugs.  He was the sole beneficiary of the sale.  He appeared on the face of it to be his own dangerous drug entrepreneur.  Those two elements alone would have placed the court in some difficulty with established authorities.  A starting point may have been difficult to ascertain at that stage on these facts.

14.The learned Magistrate went on to identify the obvious aggravating factor, that of the use of Instagram for the commercial sale of drugs.  This Court adds its own concern to hers.  Many young and vulnerable people who would not dream of contacting a drug pusher or who would never meet someone who deals in drugs in their ordinary lives, will have access to Instagram.  The mere fact that Instagram is the vehicle for these sales makes it appear socially acceptable and encourages anonymous purchases by the naïve and foolish without any personal risk.  This was the element of the offending to which the learned Magistrate addressed her mind and because of which she felt that nothing less than a custodial sentence would do even taking into account the character of the defendant.  This was the approach of Lugar‑Mawson J in Chor Lui above where there were serious concerns about the sale of drugs within a discotheque.

15.The learned Magistrate noted the sentencing authorities and the available mitigation, neither of which either assisted her directly with the appropriate sentence or moved her away from the central point of this offending.  She was therefore required to stand back and look at the overall approach to sentencing so that her sentence would be fair, balanced and just. She took all factors into account and doing the best she could in the circumstances determined that three months’ imprisonment was an appropriate sentence in all the circumstances of the offending and the offender.  Giving him the correct discount thereafter.

Conclusion

16.The learned magistrate did her very best in novel circumstances to address the sentencing principles of denunciation, deterrence and punishment and took into account the case as advanced by the appellant.  Given those circumstances her sentence was not manifestly excessive.

17.This appeal is dismissed with no order as to costs.

Mr Prakash Daryanani, SPP of the Department of Justice, for the respondent.

Ms Anna Ho, instructed by the Director of Legal Aid, for the appellant