HKSAR v. Lau Chun Yin

HCMA 359/2023

[2024] HKCFI 1403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 359 OF 2023

(ON APPEAL FROM STCC 2076 OF 2023)

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J U D G M E N T

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1.The Appellant had pleaded guilty of a charge of “Possession of a Dangerous Drug”, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong. The Magistrate imposed a sentence of 8 months’ imprisonment and the Appellant now appeals against the sentence.

2.The facts admitted were that at 1:45 am on 19 May 2023, police intercepted the Appellant at the ground floor outside Sun Fong House, Sun Chui Estate, Tai Wai, New Territories. Upon search, police found from a pocket of the Appellant’s jacket, one transparent resealable plastic bag containing a crystalline solid wrapped by a piece of white tissue paper.

3.The Appellant admitted that the dangerous drug was for his own consumption. The aforesaid crystalline solid was subsequently examined by the government chemist which was found to be 1.39 grammes of a crystalline solid containing 1.39 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

4.The Appellant is 31 years old and worked as a waiter earning about $600 per day and he had no previous conviction records in Hong Kong. The Magistrate then called for a DATC suitability report and the content of which stated that the Appellant was not a drug dependant, and therefore not suitable for admission to a DATC. In mitigation, Mr Allan, also appeared in this appeal, submitted that:

(1)  The Appellant had a clear record and pleaded guilty on the first available opportunity, thereby showing his remorse.

(2)  The subject dangerous drug was a very small quantity and was for the Appellant’s own consumption.

(3)  The Appellant was cooperative with the police since his arrest and admitted the offence straight away; and

(4)  The Appellant was not a drug dependant.

5.In the lower court, Mr Allan also asked the court to impose a suspended sentence plus a fine or a probation order. And for sentence, the Magistrate considered the following cases which include HKSAR v Mok Cho Tik, CACC 165/2000, in which the Court of Appeal was 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.

6.And then in HKSAR v Wan Choi Fai, HCMA 250/1998, the Appellant was in possession of 0.683 grammes of ‘Ice’, the Magistrate adopted a starting point of 12 months’ imprisonment.

7.On appeal, the Appellant also argued that the person in a situation who had no previous convictions for drug offences invariably received fines or, at worst, suspended sentence. Mr Justice Hartmann (as he then was), dismissed the appeal and confirmed the starting point of 12 months’ imprisonment.

8.His Lordship also referred to R v Lam Wai King, HCMA 239 & 240/1997 in which Mr Justice Chan (as he then was), was of the opinion that a starting point of 12 months’ imprisonment was not excessive in considering sentence passed for possession less than a gramme of heroin.

9.Also in 香港特別行政區 訴 林國華 (Lam Kwok Wa), HCMA 4/2016 in which Madam Justice M Poon (as she then was), considered a starting point of 12 months’ imprisonment for possession of 1.14 grammes of ‘Ice’, not manifestly excessive at all.

10.So the Magistrate proceeded to consider in the present case, 1.39 grammes of ‘Ice’ were involved, a starting point of 12 months was appropriate. In that regard, the Magistrate had already taken into account the defendant’s clear record and upon guilty plea, that was reduced to 8 months’ imprisonment.

Appeal Grounds

11.Now for appeal, Mr Allan submitted two grounds. First, the learned Magistrate failed to give any weight to the Appellant’s clear record. He was a first offender and the Appellant was not a drug dependant from DATC and the report was a positive one.

12.And the second ground, the Magistrate failed to give or pay any regard for other sentencing options, say for example, probation with urine tests or whether a suspended sentence could be imposed in view of his clear record and the fact that he was a first offender. So in all the circumstances, the sentence of 8 months was too severe.

13.For ground one, Mr Allan elaborated in his full written submissions that the Appellant had pleaded guilty at the first available opportunity. The drugs were very small, the quantity of which was very small and was intended only for his own consumption, and saving court a lot of valuable time by his early guilty plea.

14.The Appellant was not a drug dependent. DATC report was a fairly good one. The Appellant was cooperative, he had regret in regard to his wrongdoings and misdeeds and most importantly, the urine tests collected were negative for drugs. So it appeared that the Appellant has already stopped taking drugs at the time when he was caught, and so it was submitted that the Appellant’s arrest by the police was a huge wakeup call.

15.Mr Allan also argued that in considering the overall circumstances, the sentence was too severe in regard to his guilty plea, small quantity of drugs, timely plea, full cooperation with the police, positive DATC report, negative urine test, he had a very concerned and caring mother, he has been working and is a good son giving his mother $6,000 per month.

16.And following that was the second ground, Mr Allan also submitted the Appellant was not a hard core criminal or drug user. He had already spent 14 days awaiting DATC report and learned a bitter lesson by losing his liberty, and if possible, the first offender could be rehabilitated in an open setting, for example, probation with random urine tests, community service order or even suspended sentence.

17.So Mr Allan submitted that the learned Magistrate failed to consider properly all these options. So the court has a discretion to sentence particularly when dealing with small quantity of drugs in the present case. So maybe this is a proper case that other options should be taken.

18.Mr Allan also submitted that the Appellant also be granted bail pending appeal before another learned High Court Judge. So in essence, that the Appellant had already been served around 7 weeks’ imprisonment and he has already learned a very bitter lesson.

19.Finally, Mr Allan submitted, if possible, suspended sentence is also an appropriate option. He also submitted today with another authority, HKSAR v Tang Kin Chung Harry, HCMA 79/2018, but that case involved only 0.06 grammes of cocaine, no doubt the quantity of which is relatively very small comparing to the present case and the drugs involved was also different.

Respondent’s Reply

20.In response, the Respondent stated that the Magistrate had already properly and sufficiently considered and given weight to the Appellant’s clear record, quantity of drug, DATC report, timely guilty plea as appeared in his reasons for sentence, and also for ground two, the Magistrate had already considered other sentencing options as submitted.

21.Apart from the cases submitted and considered, say, Mok Cho Tik and Wan Choi Fai, the Respondent also submitted another case, HKSAR v Islam Shafiqul [2020] HKCA 354, in that case the court considered that the ‘Ice’ is a very serious drug which is even more potent than cocaine and heroin.

22.So in the circumstances, the sentence of 8 months’ imprisonment is not wrong in principle nor manifestly excessive.

Consideration

23.In the recent Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, the court stated that the Magistrate appeal is conducted by way of rehearing on all the evidence before the trial court. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.

24.When applying to the sentencing appeal, the court should therefore consider all the evidence before the court, including all the facts of the case and all the reports and the mitigations submitted.

25.For ground one, it is quite apparent from the reasons for sentence that the Magistrate had already considered and taken into account the facts that the Appellant had a clear record, the drugs were of a small quantity, the timely plea, full cooperation to the police and so forth.

26.And for ground two regarding other sentencing options, the Magistrate had also duly called upon the DATC report first and found that the Appellant was not a drug dependant and therefore DATC was not a suitable option.

27.And more importantly, for sentencing, the Magistrate had also considered all the relevant authorities, for example as stated above, Mok Cho Tik, Wan Choi Fai, Lam Wai King and 林國華 (Lam Kwok Wa), clearly the starting point of 12 months’ imprisonment adopted was in line of the above authorities.

28.And as Mr Justice Hartmann (as he then was), in Wan Choi Fai, where the Appellant also argued the same that the Appellant has no previous conviction for drug offences which invariably receive fines or suspended sentence. But after consideration, the appeal was also dismissed and 12 months’ imprisonment was confirmed, and that case also concerned ‘Ice’ of a possession of which was even less than 0.7 grammes.

29.Perhaps I should also add that as to the quantity of drugs involved in the present case, which was 1.39 grammes of ‘Ice’ which appear to be of small quantity. But however, when considering the average dosage of ‘Ice’, for new or infrequent users, would be in the range of 0.05 to 0.1 grammes per day, and for regular users, 0.1 to 0.5 grammes per day, see the case of HKSAR v Tam Yi Chun, CACC 524/2011.

30.So in effect, for 1.39 grammes of ‘Ice’ in the present case, that could be used for almost two or more weeks for new user and one week or more for regular user. That could not be seen as a very small quantity by all means. Not to mention that ‘Ice’ is highly addictive and the overall harm is also high among abusive substances.

31.Therefore, I consider that all the appeal grounds fail and by way of rehearing, I have also considered all the facts of the case, all the reports, the relevant authorities and the mitigation submitted. I also considered that the sentence imposed is appropriate and not manifestly excessive. So the appeal against sentence is dismissed and the Appellant shall serve the sentence accordingly.

Mr William Allan, instructed by Francis Kong & Co, for the Appellant

Mr Tsang Ting-hang Michael, SPP of the Department of Justice, for the Respondent