HKSAR v. Wan Sheung Sum

CACC000438/1999

CACC 438/1999

HEADNOTE

Criminal law - possession of dangerous drugs - sentence - based upon three-step approach - (1) normal starting point (2) enhancement for latent risk of redistribution (3) adjustment of total sentence to take account of mitigation.

CACC 438/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 1999

(ON APPEAL FROM DCCC 429 OF 1999)

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Coram: Hon. Stuart-Moore VP and Wong JA

Date of Hearing: 23 December 1999

Date of Judgment: 23 December 1999

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. The Applicant was charged with trafficking in heroin hydrochloride (charge 1) and possession of heroin hydrochloride (charge 2). He pleaded not guilty to charge 1 and guilty to charge 2. A trial then took place before Deputy Judge Tong Man in the District Court, as a result of which the Applicant was found not guilty of trafficking but guilty of possession. On 30 July 1999, the Applicant was sentenced to thirty-two months' imprisonment on charge 1 and to twelve months' imprisonment on charge 2, both sentences to be served concurrently. The Applicant now seeks leave to appeal against sentence.

2. At the outset, we can say we are greatly indebted to both counsel in this matter. It is apparent that the judge did err in the approach that he took to sentence and it is therefore necessary to look at the facts and the law briefly in giving our reasons for that conclusion. Counsel in the case are in agreement that the result must inevitably be that leave should be given and that the appeal should be allowed.

3. On 1 June 1998, during a police surveillance operation at the building where the Applicant lived in Shanghai Street, Kowloon, the Applicant was stopped as he made his way home. Concealed in the Applicant's underpants were found two packets of dangerous drugs. On analysis, these were found to be mixtures which contained 34.33 grammes of heroin hydrochloride (charge 1). Later, the Applicant's room was searched where a mixture containing 3.79 grammes of heroin hydrochloride (charge 2) was found.

4. The police questioned the Applicant. He said that the two packets which they had found on him had just been purchased by him and were for his "gradual consumption". He said that the smaller packet found in his room was left over from a previous purchase for self-consumption. He went on to say that while it was true he consumed white powder at his flat, the other occupants at his address had no knowledge of his possession of heroin.

5. The grounds of appeal which have been put before the court are firstly that the judge erred in adopting a starting point of four years' imprisonment on charge 1 and, secondly, when considering the latent risk factor, the judge did not give sufficient weight to the fact that the Applicant, although a drug addict, had no previous convictions for trafficking and was employed prior to his arrest.

6. In determining an appropriate sentence for an offender who is a bona fide user and is convicted of simple possession of heroin or methamphetamine hydrochloride (ice), the authorities indicate that the judges should adopt a three-step approach. (See: HKSAR v Chan Yat-sing, CACC 777/1997; HKSAR v Lau Chi-chiu, CACC 395/1998; HKSAR v Lai Kam-sang, CACC 578/1998). In all of these cases, the three-step approach was emphasised and the accepted range of sentence for simple possession was taken as being between twelve to eighteen months' imprisonment. It appears likely, from the limited transcript available to us, that the judge's attention was unfortunately never drawn to these previous judgments.

7. We are particularly indebted to Mr. Blanchflower, on behalf of the Respondent, for having summarised what those steps are, but they are very simple and they come to this:

Step 1: The judge should normally determine a starting point of between one year to eighteen months' imprisonment .

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender's. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.

8. The judge in passing sentence in the present case said only this:

"Ever since the handing down of the judgment by the Court of Appeal in Chiu Hung-wong, Cr App No. 39 of 1993, the Court of Appeal recognised that a sentence which is going to be imposed on a defendant convicted of simple possession will have to take into account the latent risk concerned in the amount of drugs he possessed. In that case, a defendant who was found in possession of 28.29 grammes of a mixture containing 14.37 grammes of salts of esters of morphine was given a prison term of 2 years in the event of his guilty plea.

The decision that your counsel has just referred to me also deals with a defendant who was found in possession of 35.39 grammes of a mixture containing 14.86 grammes of narcotic. He was initially given a prison term of 3 years but it was reduced to 2 years after he had successfully appealed against his sentence.

In the present case, the gross quantity of drugs you possessed in the 1st charge amounts to 48.96 grammes of a mixture containing 34.33 grammes of heroin hydrochloride. The quantity of pure narcotic doubles the quantity of the two cases which I have just mentioned. The reasoning spelt out by the Court of Appeal in the first mentioned case must be followed in that a prison sentence of sufficient deterrence will be required to punish the fact that a defendant is possessing a quantity of drugs with a latent risk of being redistributed.

I adopt 4 years as the starting point for the quantity of drugs you possessed in the 1st charge. I give you a one-third discount because in effect you have pleaded guilty to possessing the same. Thus for the 1st charge you are sentenced to serve a prison term of 32 months; for the 2nd charge, 1 year, the same to run concurrently to the 1st charge. In that event, you shall go to prison for a period of 32 months."

9. It should be said that the Applicant, when tried on charge 1, did not contest possession of the drugs. The issue merely went to trafficking.

10. It is plain, in view of what we have already said as to the steps to be taken in cases of this kind, that the judge erred by firstly calculating the total sentence. He omitted the first step altogether and there is no indication in the Reasons for Sentence, as counsel pointed out, that the judge considered what the appropriate starting point should be before taking into account the latent risk factor. The judge appears to have immediately gone to step 2 and calculated the latent risk factor. However, as counsel also pointed out, the judge erred in his approach when doing so because, instead of considering the circumstances of the present Applicant, for example, that he was an addict, was in full employment and had kept the drugs at his home, the judge looked instead at the sentences imposed by the Court of Appeal in other cases where two years' imprisonment had been imposed for relatively small quantities of drugs. The judge found that the amount of dangerous drugs in the present case was almost double and appears, therefore, to have routinely or mathematically doubled the starting point, including the latent risk factor, in arriving at a starting point of four years. In the result, we now clearly have to consider the appropriate sentence, taking into account the steps that should have been taken by the judge in the court below.

11. As to step 1, the amount of dangerous drugs in count 1 involved a narcotic content of 34.33 grammes. Plainly, this is a large amount and we accept that this should come into a higher bracket in the range of between one year to eighteen months. Mr Leung, on behalf of the Applicant, did not precisely put his finger on what that sentence should be, but he appeared in general terms to accept that sixteen months, as suggested by Mr Blanchflower, was appropriate. We also consider this to be an appropriate starting point.

12. The second step involves the latent risk factor. It is apparent from all the circumstances that the risk was not a great one. The Applicant was a heroin addict. He had no record for any offence of drug trafficking. He was employed and, on the evidence, it appears that he kept the drugs in his premises without other people knowing that he was doing so. We consider that the latent risk factor should not have attracted an additional sentence of more than six months. In so saying, we have in mind what was said by Power VP in HKSAR v Chew Sik-pok, CACC 502/98, at p. 6:

"We have already quashed the conviction for trafficking and imposed a conviction for simple possession. The facts revealed that the applicant was arrested on 29th December 1997 at the Sham Shui Po Mass Transit Railway Station when he had in his possession 25.55 grammes of a crystalline solid containing 24.12 grammes of methamphetamine hydrochloride - the drug commonly known as Ice. He was charged with trafficking and pleaded not guilty. He was found guilty after trial before Deputy Judge Wong and a jury and came before this court appealing against that conviction and was successful. The amount was not large. His evidence was that he was an addict, that he had the amount there for his own consumption and that he would have consumed that amount in about six weeks. He said that at the time he was taking the drugs home having just purchased them. He is clearly a drug addict as he has had eight convictions for possession of drugs since 1992. We note that he has no conviction for possession for the purpose of trafficking. We note also that he was in employment at the time of his arrest. These are, when we come to consider what is known as the latent risk factor, important considerations. Following the judgment in HKSAR v LAI Kam-sang, Criminal Appeal No.578 of 1998, we are satisfied that we must start at the currently accepted sentence for simple possession, which is 18 months, and must then, if it is appropriate, enhance that sentence for latent risk. In this case, given the amount and given the time which the applicant admits that he would have that amount in his possession, reducing, of course, from day to day, we are satisfied that there was a latent risk but that it was not one of any real gravity. We certainly do not approximate this latent risk to that which existed in the case of Lau Chi-chiu, Criminal Appeal No. 395 of 1998, where the defendant had 63.38 grammes of Ice. We are satisfied, given that that his original intention was to take the drugs to his home where he usually kept them, that he is in regular employment and that he has clearly been an addict for a number of years without any conviction for trafficking, that the latent risk should attract a sentence of a further six months. We therefore add six months to the 18 months, for simple possession, giving us a total of 24 months. He is entitled to the usual discount for plea as he has at all times been prepared to plead to simple possession. This brings the sentence back to 16 months.

The conviction for trafficking has already been quashed and the original sentence (seven years and nine months) has fallen with it. We substitute, therefore, a conviction for simple possession and impose a sentence of 16 months."

13. In the present case, the Applicant was undoubtedly an addict and had previously been convicted on four occasions of possession of dangerous drugs. He had other convictions which are not relevant.

14. Clearly, the Applicant at all times had been prepared to plead guilty to simple possession and was entitled to the full one-third discount from the total sentence for his guilty pleas. It is apparent that the circumstances are very similar indeed to those in Chew Sik-pok (above). It goes almost without saying that if there had been a high latent risk factor in the present case, a considerable enhancement of sentence would have been justified for a quantity of heroin of these proportions.

15. In the circumstances, therefore, and adopting a starting point of sixteen months, enhanced by six months for the slight latent risk involved, we grant leave and, treating the hearing as the appeal, we reduce the sentence on charge 1 to fourteen months in order to take into account the discount for plea. This will run concurrently with the sentence of twelve months imposed by the judge on charge 2. To this extent, therefore, the appeal succeeds.

Representation:

Mr M.C. Blanchflower, DPGC of the Department of Justice, for the Respondent.

Mr Paul Leung, instructed by the Legal Aid Department, for the Applicant.