HKSAR v. Jarhia Kuldeep Singh

CACC 96/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 96 OF 2006

(ON APPEAL FROM DCCC NO. 1205 OF 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Yeung JA

Date of Hearing: 15 September 2006

Date of Judgment: 15 September 2006

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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.On 29 August 2006, the appellant’s conviction for trafficking in a crystalline solid containing 6.82 grammes of methamphetamine hydrochloride (‘ice’) was quashed.  In its place, we substituted a conviction for simple possession.

2.Before dealing with sentence, we ordered a report from the Drug Addiction Treatment Centre (DATC) pursuant to section 54A of the Dangerous Drugs Ordinance, Cap. 134.  The report is now before us and although only two members of the court, as originally constituted, are presently in Hong Kong, counsel have indicated their assent to us proceeding to sentence.

3.The facts were extremely straightforward.  On 11 October 2005, the appellant was stopped in the street by police officers who had noticed he was acting suspiciously.  When he was searched, he was found to have a transparent bag in his trouser pocket which contained the ‘ice’.  This had a street value of approximately $2,246.

4.The appellant testified at his trial that he had been taking ‘ice’ since April 2005.  A medical examination was carried out on 14 October 2005 at the Lai Chi Kok Reception Centre when a positive reading was obtained for the presence of ‘ice’ in the appellant’s body.

5.Chan Wai-chiu, a Pre-sentence Assessment Panel Officer, who has supplied us with a most helpful report, understandably concluded that as the appellant has not been able to consume drugs from the time he was first remanded in custody in October 2005, a period of drug abstinence treatment would not be beneficial to him.  The appellant is, on this account, not regarded as suitable for admission to a DATC.

6.The appellant has admitted possession of the ‘ice’ throughout.  However, for the reasons which appear in our earlier judgment, his offer to plead guilty to simple possession was rejected by the prosecution.  At no stage, at his trial, did the appellant deny possession of the ‘ice’ so that he is now entitled to be dealt with as someone who has always been prepared to plead guilty to this offence.

7.In HKSAR v Mok Cho-tik [2001] 1 HKC 261 at 267, this court, confirming earlier decisions to the same effect, indicated that an appropriate starting point for the mere possession of a quantity of ‘ice’ which a genuine user would  normally have in his possession should be “in the range of 12 to 18 months”.  This particularly applies in cases at High Court and District Court level.  Stock JA, giving the judgment of the court, went on to say:

“… But that is not the be all and end all of the appropriate starting point.  It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.”

8.In Mok cho-tik, the quantity of ‘ice’ was 15.724 grammes.  This court adopted a starting point of 18 months’ imprisonment.  The latent risk factor (in regard to the risk that a proportion of the drugs might find their way into the hands of other users) was described as “self-evidently high”.  This was said to warrant an enhancement by 12 months’ imprisonment although certain mitigation which had not been put before the sentencing judge then brought about a reduction of the overall sentence by 6 months.

9.In the present case, the quantity of ‘ice’ was neither very small nor very large in terms of mere possession.  We shall, however, ignore the claim made by the appellant in evidence at his trial which was to the effect that this represented only enough for “two or three days”.  This was, somewhat surprisingly, never challenged despite the findings contained in Attorney-General v Ching Kwok-hung [1991] 2 HKLR 125 at 128-129 where the rate of consumption of ‘ice’ is discussed in some detail.  It is plain that this quantity would have lasted a considerable time and represented far more than a two or three-day supply subject to the high probability, at that rate, of others participating in its consumption.

10.Judge Chua characterised the appellant, aged 27 at the time of his conviction, as an unemployed addict.   In this regard, the description was an apt one albeit he is not any longer to be regarded as an addict as a result of the time he has now been in custody.  We note also that, in 2001, the appellant was convicted of possessing dangerous drugs for which he was placed on probation.  This is his only previous conviction.

11.Taking all the circumstances into account, we propose to take a starting point of 15 months’ imprisonment and to enhance the sentence to take into account the ‘latent risk’ factor by adding a further 12 months, making a starting point of 27 months’ imprisonment in all.  This must then be reduced by one-third to reflect the appellant’s firm intention to plead guilty to this offence had he been permitted to do so.

12.Accordingly, the appellant is sentenced to 18 months’ imprisonment.

Mr Simon Tam, SGC, of the Department of Justice, for the Respondent.

Mr Peter Pannu, instructed by Messrs Francis Kong & Co., for the Appellant.