HKSAR v. Yiu Hung Kuk

[English Translation - 英譯本]

CACC 166/2022, [2024] HKCA 308

On appeal from: [2022] HKDC 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 166 OF 2022

(ON APPEAL FROM DCCC 1133 OF 2021)

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REASONS FOR JUDGMENT

Hon Pang JA (giving the Reasons for Judgment of the Court):

1.The appellant pleaded guilty to one count of trafficking in a dangerous drug involving 11.47 grammes of “ice” and was sentenced by the trial judge, HH Judge E Yip of the District Court, to 4 years and 8 months’ imprisonment. Feeling aggrieved and having been granted leave by a single judge, the appellant formally lodged an appeal against sentence. After hearing all submissions from both sides, we dismissed the appeal, and these are our reasons.

Basic facts

2.In the small hours of 12 June 2021, the appellant was stopped by the police at Portland Street, Mong Kok and four packets of suspected dangerous drug were found behind her mask.

3.At the same time, $3,083.8 cash and one iPhone were found on the appellant’s person.

4.Under caution, the appellant claimed that the dangerous drug was for her own consumption. She subsequently added that she had bought the dangerous drug in a park for $2,800, and that at the time of her arrest, she had just finished the purchase and was on the way to an MTR station so as to return home by train. Nonetheless, the appellant also admitted that she was unemployed and the whole family depended on the comprehensive social security allowance as well as the income earned by her husband who worked on a casual basis.

5.It was later confirmed that what was concealed behind the appellant’s mask were four packets in different sizes, i.e. large, medium, small and extra small, containing different quantities of the dangerous drug “ice” weighing 11.47 grammes in total. At the material time, the market value was $6,564.

Admitted facts

6.Other than the above basic facts, obviously directed at the appellant’s exculpatory statement under caution, the set of admitted facts, which was prepared for the appellant’s guilty plea, also mentioned that the appellant “was in possession of [all the dangerous drug ‘ice’] in the case for the purpose of trafficking”.

Background and mitigation

7.The appellant was 49 years old at the time of sentence. She had thirty-two previous convictions which consisted of a great many thefts and some “drug possession” offences, for short. One of them was even for trafficking in a dangerous drug, which was the same charge as that in the present case, for which she was sentenced to 41 months’ imprisonment. She completed serving her sentence on 30 July 2020. That is to say, the appellant committed the present offence eleven months after her release from prison.

8.Apart from urging the court to take into account the appellant’s unfortunate personal and family backgrounds and not to enhance the sentence for reoffending, the defence also pleaded with the trial judge for a reduction in sentence on the ground that a “significant portion” of the dangerous drug in question was intended for the appellant’s own consumption having regard to her drug addiction, her previous convictions of drug possession, and the fact that amphetamine was detected in the urine sample collected after her arrest [1].

Original sentence

9.As indicated by the trial judge, it was alleged in both the charge and summary of facts that the dangerous drug in question was intended for trafficking, which the appellant did not dispute when plea was taken from her. Therefore, the assertion of having a part of the dangerous drug for self-consumption was incompatible with the appellant’s choice of pleading guilty. He would not accept that as a ground for reducing the sentence.

10.Even though the defence submitted that according to Wong Suet Hau[2], upon the court’s acceptance of a subsequent assertion of “having a part for self-consumption”, a reduction in sentence could be afforded based on the circumstances. The trial judge instantly rebutted by raising a series of questions, for example[3], “Every time I did not follow ‘the authorities’ … have been awaiting the appeal for a long time.” “In terms of logic, how can I accept it? Having admitted the whole of it, and then go back on your words, saying no and that a part of it was in fact for self-consumption.” “Has anyone ever researched on this, actually? In terms of logic, does it make sense?” “You may appeal. I am fine with it.” “If the Court of Appeal also says the same, let’s see what the circumstances are. I will follow if I find it is the case.” “Never mind. There is a set of processes. We can have the logic sorted out.” “Because they have never explained about this,” and so on.

11.Admittedly, the trial judge had also expressed certain thoughts of his to the defence. On the face of them, he seemed to concede to the possibility of having the appellant testified in the witness box in support of her claim of “having a part for self-consumption”. However, when scrutinizing them closely, he obviously did not refer to the Newton hearing as suggested in Wong Suet Hau through which the veracity of the assertion as well as the quantity of the dangerous drug concerned could be ascertained. Seemingly, the trial judge was of the view that the so-called “having a part for self-consumption” could only apply to the scenario that if in the present case, the appellant had indicated explicitly from the time of answering the plea that she had trafficked three packets instead of all four packets of the dangerous drug “ice”. Under such circumstances, the Newton hearing was the tool for the court to resolve the said issue [4]:

“Court: Nonetheless, as to the facts of the case, you now agree that the whole of it was for trafficking, don’t you, the last paragraph[?] Right. You may be charged [with that]. There’s no problem.

Mr. Chan: Mm.

Court: However, even if you can lay [such a] charge，he or she can -- when answering the plea, ‘Orr, no, three packets were for trafficking and one for self-consumption.’ Isn’t that right? But you said all four packets. As I remember, the four packets amounted to 11.47 grammes, right[?]

Mr. Chan: Right.

Court: Well, you [admitted to] all four packets. You did not say when answering the plea, ‘I admit to three packets only.’ Huh. Well, if you said that you admitted to three packets, a Newton hearing may be held, perhaps, right?

Mr. Chan: Mm.

Court: Orr, to do it like this. But it is not the case here.

Mr. Chan: Right.”

12.The trial judge went on and said that the appellant had not at the outset made it clear that a part of the dangerous drug “ice” was for her own consumption and, instead of it, admitted trafficking in the whole of the drug in the case, so it was taken as a “change of stance”. “Change of stance” had to be handled in accordance with the “processes (and) procedures relating to change of stance”, and it was likely that the appellant would be asked to testify in the witness box. Be that as it may, no sooner had he finished the last word then the trial judge struck a note that unless the possibility of “selling” was totally ruled out, it was really difficult to imagine that the appellant’s contention would succeed. It could be clearly seen that there was an absolute distinction between for sale and not for sale, in other words, trafficking and self-consumption, so far as the trial judge’s view was concerned [5]:

“Court: … neither has the Court of Appeal explained it in clear terms. In particular, you have already openly admitted in court the summary of facts which alleged that the whole of it was for trafficking.

Mr. Chan: Mm, mm, understand.

Court: Right. Well, unless there is a change of stance, but there is no -- for changing her stance, there have to be the application, the system, the procedures for change of stance.

Mr. Chan: Mm. Right, correct, correct. That is another matter.

Court: Huh.

Mr. Chan: Right, correct, understand, understand. Huh. If that is the case, that is, regarding this aspect, in fact, I have already written it down in my submission for mitigation.

Court: Yes, I know.

Mr. Chan: So I will adopt it as my submission today.

Court: Actually, there is one thing, one more point for consideration, Mr. Chan.

Mr. Chan: Yes, yes.

Court: Well, even if it is really to do it – I am not talking about what just now -- well, let’s say, even with the assertion that a part of it was for self-consumption, of course, I would say it is not -- in fact, it is not applicable to -- the situation today.

Mr. Chan: Right.

Court: In fact, it may be necessary for the defendant to give evidence, huh, as to the quantity she claimed.

Mr. Chan: Right.

Court: Well, quite clearly, the questions to be put to her, how -- that is, ‘You would not sell (it) no matter how much money was offered? You intended to consume (it) yourself?’ Well, actually, I am not -- because this situation does not happen in my court, I can make some comments. So -- actually, it is not easy to explain, huh, because how you -- ‘Here are four packets. Well, you, that is, you will not sell them no matter how much money is offered. Is that right?’ ‘Right, I will not sell them at all events.’ Well, you also look at the personal financial situation, right? Well, if someone -- that is, ‘Someone offers you a very high price and you sell it to him or her.’ ‘Well, soon afterwards, I buy back some for self-consumption.’ Just like that. That is, those, well, in fact -- in -- I think even if in the witness box, in fact, it is basically not easy to explain indeed. Certainly, I can’t say in absolute terms that she won’t be able to explain.”

13.Ultimately, the trial judge adopted the sentencing guideline in Tam Yi Chun [6] and took a starting point of 7 years. The appellant pleaded guilty and was entitled to a one-third discount. The resulting sentence imposed was imprisonment for 4 years and 8 months.

Grounds of appeal

14.Ms Priscilia Lam was not the defence counsel at trial. The ground she advances on the appellant’s behalf is very simple, which is that the trial judge erred in principle when he found that the admission of trafficking in the whole of the dangerous drug and the assertion of “having a part for self-consumption” were incompatible and refused to follow the guideline laid down by the Court of Appeal in Wong Suet Hau to consider discounting the appellant’s sentence. Ms Lam refers to a precedent of Court of Final Appeal, Solicitor (24/07), where it states[7] that the lower courts in Hong Kong are obliged to follow the previous decisions made by the higher courts. This is the “Doctrine of Precedent” under the Common Law, which is an important cornerstone of the Common Law legal system.

15.Ms Lam supplements in both her written and oral submissions by commenting upon the trial judge’s persistent refusal to follow Wong Suet Hau with the consequence that the issue of “having a part for self-consumption” was completely rejected by the court and was not addressed at all. Thus, the original sentence must be set aside. Although the appellant did not testify in a Newton hearing in support of her assertion of “having a part for self-consumption”, undeniably, there was relevant evidence of weight in the present case for the court to take into consideration and to draw inference in favour of the appellant. Such evidence included that the appellant had been a drug addict for more than twenty years; that she had previous convictions of possession of a dangerous drug in 2003, 2006, 2015 and 2018 respectively, which accumulated to five records in total; and that amphetamine was detected in the urine sample collected after her arrest. Had the trial judge not been wrong and regarded to Cheung Wai Man [8], he should have in any event reduced the appellant’s sentence by at least 10% on account of the evidence stated above.

16.Finally, Ms Lam submits that the earliest date for the appellant’s release will be 21 July 2024, namely four months after this appeal hearing. However, four months only corresponds to 5% of the original sentence of 4 years and 8 months. That is to say, even if immediate release is granted, the appellant can only receive half of the 10% discount mentioned just now. Along with this reason, and the fact that the appellant will also be due for Percutaneous Coronary Intervention (commonly known as “balloon angioplasty”) in June 2024, it is submitted that this Court will allow the appellant’s appeal and exercise its discretion to impose a sentence which affords her an immediate release so that she could receive better postoperative care.

Analysis and discussion

(The major principle)

17.Wong Suet Hau was decided many years ago. People in the profession are well acquainted with the decision and courts at different levels obligingly follow it. We do not intend to go into the details here. In short, as noted from the case and a succession of appeal cases, admitting trafficking in the whole of the dangerous drug in question when a guilty plea was entered but claiming in subsequent mitigation that a part of it is for self-consumption would not be regarded by the court as contradictory. According to Wong Suet Hau, if the court accepts that a “significant portion[9]” of the dangerous drugs involved is intended for self-consumption, the court should afford the defendant a discount.

(Underlying logic)

18.“Trafficking” is a technical term in law and is defined in section 2 of the Dangerous Drug Ordinance as “includes importing into … exporting from … procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking”.

19.By this definition, bringing dangerous drug into Hong Kong from any port does constitute “importing” and shall also be regarded as trafficking. Nonetheless, a person who imports the dangerous drug may do so for the purpose of self-consumption, and even have the whole of it for self-consumption. Actually, it is not uncommon to have cases in which this ground is advanced for seeking a lenient sentence. Whether the court is convinced is to be considered on the application of Wong Suet Hau. Conversely, if a person is found to have passed on to a third party some wrapped dangerous drug, i.e. trafficking by way of “supplying”, under the circumstances, unless this person can provide a very exceptional explanation which can be proven to be highly credible in a Newton hearing, it is really hard to imagine that the assertion of self-consumption would have any prospect of success. Neither judge in this Court has in his or her judicial practice seen anyone make such an attempt.

20.The above two are rather extreme examples which, to a large extent, are subject to the legal definition and what the defendant has actually done. There are a lot of “possession” cases between the two extremes. “Possession for the purpose of trafficking” can be broadly categorized into two types of situation, one of discovery upon stop and search and one of discovery at premises. The details and the quantities of dangerous drugs involved differ from case to case. However, there is usually no direct evidence of the very moment when the dangerous drug is being traded, transferred or transacted. Concerning the reasons for which the court allows the defendant to mitigate on the ground of “having a part for self-consumption” after admitting trafficking, we think it can be demonstrated by analogy with, for example, an ordinary vendor selling apples on a stand. The illustration is as follows.

21.As a stand is set up, the apples on it are naturally for sale. Normally when the vendor wants to eat an apple, as a matter of common sense, he or she will not buy it from a supermarket. This is the most basic logic. Apart from that, the specific circumstances to which such logic applies may be diverse and many different consequences will ensue. The simplest one is that if the business is good, the vendor may perhaps try to sell out the apples first and will then procure the part for self-consumption in another way. Practically though, the apples may not necessarily be sold out, and the vendor cannot foretell on which days they can and on which days they cannot be sold out. Therefore, it all depends on the vendor’s general financial condition, the time of checking, the number of unsold apples at the moment of checking and whether the vendor has consumed any of the apples. The number of apples remaining on the stand for self-consumption may be zero or any positive numbers representing a rather high proportion (or “significant portion”). Besides, the vendor’s claim that he or she will take some apples from the stand for daily consumption may not necessarily be true. For instance, the person who keeps the stand is merely an employee of the vendor and will be paid and also given some apples in return. When officers of the government happen to come to enforce the law, he or she will, as instructed by the vendor, say that a part of the apples is for self-consumption in order to plead for a lighter fine.

22.Coming back to the reality, consuming and selling apples as opposed to consumption of and trafficking in a dangerous drug are two totally different matters. It is inherently impossible to make a serious analogy by using the former. Yet, it can be seen from the above example that the issue concerned is in fact rather subtle. One cannot, like what the trial judge did, simply jump to the conclusion that “it was trafficking after all” based on a few words from the plea and the admitted facts and then put a full stop to the issue. Instead, it has to be dealt with step by step in accordance with the procedure identified in Wong Suet Hau and various evidence put before the court[10]. Subject to the situation, the court does not necessarily hold a Newton hearing, but it must consider all the evidence before making the decision.

(Error in the trial)

23.The “admitted facts” pertaining to the trial contained the sentence “the defendant was in possession of [all the dangerous drug ‘ice’] in the case for the purpose of trafficking”. It was also reflected in the relevant exchanges in court that the trial judge had placed strong emphasis on this sentence. As to whether this sentence, like what this Court has observed, mainly serves to undermine the appellant’s contradictory statement under caution, the trial judge did not make any analysis. We point this out not because we want to comment on whether this kind of remark, which commonly appears in the admitted facts, is conducive to the examination of the issue of “having a part for self-consumption”, as this is very much dependent on the specific circumstances of every single case. However, this indicates the fact that the trial judge should have handled the issue with caution but failed to do so. Worse still, he thought that the assertion of “having a part for self-consumption” was only applicable to a defendant who stated explicitly right at the beginning that only a part but not the whole of the dangerous drug was intended for trafficking. As such, the mitigating factors and system established in Wong Suet Hau was negatived outright in one fell swoop. This was not only lack of the knowledge of the underlying logic behind that case and contravened the “doctrine of precedent”, but also did the appellant an injustice. Even if the appellant can turn the tables completely at the appeal, it is absolutely unjust.

(Reconsideration)

24.Since the trial judge was wrong, the next issue to be solved is whether the appellant should be entitled to the sentence reduction for which the defence and Ms Lam have been steadfastly striving on her behalf if the authority concerned is applied properly.

25.Our answer is “no”.

26.The appellant did not give evidence, which in fact should not be wholly attributed to the trial judge. As shown in the written mitigation pertaining to the trial, the appellant herself could not even tell the actual quantity of the dangerous drug intended for her own consumption for sure. The document stated that she “could not be sure”[11]. As a matter of fact, the defence at no stage throughout the mitigation asked for a Newton hearing to be conducted. At the appeal, Ms Lam also conceded that she did not have the appellant’s instruction to withdraw the parts that she was unsure about the quantity for self-consumption and her choice of not to go to the witness box.

27.Similar to what was submitted by the defence in mitigation, Ms Lam primarily relied on the case of Cheung Wai Man. In that case, the Court of Appeal reiterated several principles or keypoints, namely that the quantity for self-consumption had to be a significant portion according to Wong Suet Hau, that the onus of proof rested on the defence for a claim of self-consumption in Chong Chee Meng[12], and that according to Chow Chun Sang, a discount to sentence might generally fall between 10% and 25% as far as such a claim was concerned[13], and on top of them[14], it was however also mentioned that the smaller the quantity of the drug involved, the greater the proportion for self-consumption might be[15]. In addition, according to Liu Ming Sze[16], it was within the court’s discretion to give a discount in a case where the quantity for self-consumption did not meet the threshold of a significant proportion of the whole[17]. Finally, the Court of Appeal held that the defendant, who trafficked in drugs to sustain his drug habit and did not testify, failed to substantiate his claim that a quarter or even more of the drugs in question (33.28 grammes in total) was for his own consumption, but should be entitled to a 10% reduction since the lower court had already found that a “significant portion” of the drugs was intended for self-consumption[18].

28.Ms Lam made references to the facts and verdict in Cheung Wai Man and considered that in any event a 10% discount could be given to the appellant on account of her drug addiction, previous record and urine test result so that she could be released immediately. Regarding the point that the appellant will be due for Percutaneous Coronary Intervention in two months’ time, it is merely an extra consideration to fortify the present application.

29.The point is, upon reading with care, Cheung Wai Man in effect does not strike home what Ms Lam has expected. Quite the contrary, it was obviously due to the lower court’s finding that a “significant portion” of the dangerous drug was intended for self-consumption that the Court of Appeal had discussions on the issues such as that the total quantity of drugs although not insignificant was not relatively high[19], and that the lower court was probably in the opinion that since the quantity of drugs involved was relatively small, the portion for self-consumption would mean a greater proportion[20], in order to maintain a 10% discount which is one third less than the original sentence but just meets the lower limit of the sentence reduction range. From the above approach and in light of the court’s concern that the defendant did not adduce any evidence and was arrested under a suspicious circumstance[21], together with the weight attached by the court to cases such as Wong Suet Hau and Chong Chee Meng, it can be seen that the Court of Appeal in fact had considerable reservations over whether self-consumption did apply to the case. Hence, Cheung Wai Man is simply not an appropriate authority to rely on for the purpose of striving for sentence reduction because it does not deal with similar issues or details.

30.Back to the present case. The appellant was a person of straitened means. The purchase price of the drug she claimed was not in line with the market value. Notwithstanding that, she was unwilling to testify and even “could not be sure” about the approximate quantity of drug intended for self-consumption. Surely, if we go back to the apple vendor analogy, the so-called “could not be sure” might cover the possibility that no sooner had the appellant gone out to sell the drug than she was caught, and thus she had no idea of whether the business was meant to be so good that all the drug would be sold out very soon and that she would need to seek other ways to feed her addiction. Another possibility was that the appellant was just an employee and would in no way share any part of the drug in question, and her claim that a part of it was intended for self-consumption was only a tactic to seek a sentence reduction. Under the circumstances, she could only get round the issue of quantity by saying “could not be sure”.

31.Furthermore, if one wants to have the sentence mitigated on the ground of “having a part for self-consumption”, that part of dangerous drug can only be, say, a part of the whole batch that the trafficker has on his or her person. Unlike the scenario of selling apples, it is practically inconceivable that a trafficker will astonishingly carry a part or even a “significant portion” of dangerous drug intended for self-consumption on his or her person; this is indeed not worth the risk unless the trafficker has just finished collecting the drug and is bringing the whole batch (including the part for self-consumption) on the way home. This is not absolutely impossible. Or there are indeed some other rather exceptional reasons in the case that give rise to the situation above, or the trafficker is genuinely returning home right after collecting the drug. It must be explained by the person concerned personally. In short, it is not easy to come across a case where the defendant is able to convince the sentencing court without testifying in the witness box. If a sentence discount is given to a defendant purely on the ground that he or she is a drug addict at the time of the offence, it is undoubtedly very much a matter of speculation rather than disciplined exercise of discretion.

Decision

32.We dismiss the appellant’s appeal and the original sentence is affirmed.

Ms Priscilia T Y Lam, instructed by S. H. Chan & Co., assigned by Director of Legal Aid, for the appellant

Mr. Marcus C W Lee, Senior Public Prosecutor of the Department of Justice, for the respondent

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.