Case Document

100%Judiciary

CACC000186A/2000

CACC 186/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 186 OF 2000

(ON APPEAL FROM HCCC NO. 279 OF 1996)

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BETWEEN
	HKSAR	Respondent

	AND

	NG HUNG CHI	Applicant

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Coram: Hon Stuart-Moore VP, Woo and Stock, JJA in Court

Date of Hearing: 13 March 2002 and 22 March 2002

Date of Judgment: 22 March 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1By a judgment which we handed down on 12 March 2001 we set aside this applicant's conviction for trafficking in a mixture containing 203.46 grammes of heroin, and substituted a conviction of possession of that amount. It follows that the sentence of 12 years' imprisonment which the judge imposed in May 2000 is set aside, and it falls for us to sentence the appellant for the substituted offence.

2The matter came before us for sentence on 13 March, that is the day after our judgment was handed down, but we were obliged to adjourn the hearing as to sentence because the provisions of section 54A of the Dangerous Drugs Ordinance were drawn to our attention, by which we are precluded from passing a custodial sentence in the absence of a report from the Commissioner of Correctional Services as to the appellant's suitability for cure and rehabilitation. In the unusual circumstances of this case, where it is clear that the appellant has never been, and is not now, an addict, this was an unfortunate and pointless corner into which we and the appellant were driven. We now have that report and, as expected, there is no need for any cure from addiction, for the appellant is not, nor was she, a drug dependant.

3The circumstances in which she now stands convicted of possession are most unusual, and are explained in our earlier judgment. It would be artificial to adopt the normal approach of such cases, which is to take a starting point on the basis of a quantity of drugs intended for the consumption of the possessor. There is in this case no suggestion by anyone that the appellant intended to, or would have consumed, the drugs herself or indeed any part of them. The factual basis upon which, against the circumstances described in our judgment, we sentence, is that this appellant was in control of drugs which had, as she well knew, been placed in premises which she owned and to which she alone had access. There was a very substantial quantity of drugs, and their value was $292,748.93. We do not, of course, sentence on the basis that she was herself intending to traffick in the drugs or that she was party to an agreement to look after them to enable someone else to traffick in them. The only proper approach to accord with the facts of the case and the substituted verdict is to sentence on the footing that she was not sure to what fate the drugs would be consigned, but to recognize, as she must have recognized, that the chances of their ultimate use for trafficking, at someone's direction, was significant; in other words to build into the sentence a substantial factor for latent risk. We are fully conscious of the fact that she is not to be sentenced for non-proven trafficking. But that is to be distinguished from a situation in which someone stores drugs, albeit not a party to trafficking, but aware of the risk that they might well yet be so designated.

4Since this is a possession by storage case, and not a self consumption case, it may be artificial to take a starting point for possession and then to state an enhancement factor, but in so far as that is appropriate we say that no less than three years is appropriate for the possession element, and a further three years for the latent risk factor: a total of six years' imprisonment.

5At the last hearing Mr Haynes said on behalf of the appellant all that counsel could say, and his efforts on behalf of this appellant deserve commendation. The gravamen of his mitigation is that this appellant can have had little choice but to do as she did, and must have been in a dilemma, to which he says this court should give weight. He refers also to the long period of stress which she has suffered, this offence having been committed some six years ago. The fact of the matter, however, is that this appellant was a knowing custodian, not jointly but on her own, of drugs worth almost $300,000 and there can be few cases, if any at all, of simple possession of quantities of that amount; and the circumstances and the amount are wholly different from anything contemplated by the case of Mok Cho Tik [2001] 1 HKC 261. One notes that a section 37 offence, namely the offence of being an owner or person in charge of premises permitting such premises to be used for the storage of drugs, attracts a maximum penalty of 15 years' imprisonment. We intimated, in our earlier judgment, that this would have been the section most appropriate to the offence committed by the appellant. We recognize that for the offence under the section under which she has now been convicted (section 8), the maximum sentence is seven years' imprisonment, and whilst of course we sentence her under that section and for that offence, the seriousness of allowing someone to keep such a hoard is not to be understated.

6As for the stress since the commission of the offence and the length of it, the delay is a factor which the appellant visited upon herself since she failed to answer to her bail.

7The appellant is aged 52 years now. She has one previous conviction for theft which, for present purposes, we ignore. The starting point is one of six years' imprisonment. We see no factors validly mitigating that point and, accordingly, the sentence which we substitute for the original sentence of twelve years is one of six years' imprisonment.