HKSAR v. Lai Kam Sang
Read the full judgment text of CACC 578/1998 on BabelCite. This Court of Appeal judgment was delivered on 23 March 1999 before Power, V.-P., Mayo JA, Stuart-Moore JA.
Criminal law – sentencing – drug offences – simple possession of dangerous drug – methamphetamine ('ice') – starting point – latent risk enhancement – appeal – Criminal law – dangerous drugs – trafficking – methamphetamine hydrochloride – 27.16 grammes of crystalline solid – plea of guilty to simple possession after voir dire – whether trial judge erred in fixing starting point at two years and applying 100% enhancement for latent risk – starting point for simple possession should be within accepted range of one to 1.5 years – three-year benchmark in Lam Wai-ip already incorporated latent risk factor – Lau Chi-chiu supported 100% enhancement for larger quantity of 65.33 grammes – doubling inappropriate for smaller quantity – 12 months' enhancement appropriate – applicant entitled to full one-third discount for guilty plea – appeal allowed – sentence reduced from two years eight months to 20 months – applicant immediately released
Legal issues: Appropriate starting point and latent risk enhancement for simple possession of methamphetamine ('ice')
Outcome: Appeal allowed; sentence varied from two years and eight months to 20 months; applicant immediately released.
Cited by 14 cases
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CACC000578/1998 CACC578/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 578 OF 1998 (ON APPEAL FROM HCCC 356 OF 1997)
------------------------------- Coram: Hon. Power, V.-P., Mayo & Stuart-Moore, JJ.A. Date of Hearing: 23 March 1999 Date of Judgment: 23 March 1999 ---------------------- J U D G M E N T ---------------------- Power, V.-P. (giving the judgment of the Court): 1. This applicant faced one count of trafficking in the drug commonly known as 'ice'. This count was particularized as follows: that he on 3rd June 1997, outside Hei Tsui House, Wan Tsui Estate, Chai Wan, unlawfully trafficked in a dangerous drug, namely 27.16 grammes of a crystalline solid containing 26.61 grammes of methamphetamine hydrochloride. He originally pleaded not guilty to the charge but, after two days of a voir dire hearing, the court accepted a plea of guilty to simple possession and he was sentenced to imprisonment for two years and eight months. 2. Saied J. when sentencing said:
3. The applicant now appeals on the ground that the judge did not correctly assess the sentence, neither taking a proper starting point nor giving a proper enhancement factor on account of latent risk. 4. We are disturbed by a passage, which appears at page 16 of the judgment, when there was an exchange between the court and counsel for the applicant which was as follows:
5. The trial judge appears to have been there referring to the decision in Lam Wai-ip, Crim.App. No. 214 of 1997 (unreported), and to have been adjusting that starting point from three years to two years. He seems to have been proceeding upon the basis that Lam Wai-ip had not, when it spoke of a sentence of three years already taken into account the enhancement factor. The judge was wrong if he so thought as that factor had already been taken into account. He should, when assessing starting point, have been looking at the accepted range of sentence for simple possession which is from one year to 18 months. Having done so, he then should have assessed the proper enhancement for latent risk. 6. In Lam Wai-ip, the court made it plain that the latent risk when it comes to ice is a very serious one. It said:
7. The latent risk enhancement adopted by the judge was one of 100%, i.e. from two years to four years. This approach is given some support by the case of Lau Chi-chiu, Crim.App. No.395 of 1998 (unreported), in which the judge employed such an enhancement percentage and the Court of Appeal stated the judge could not in any sense be criticized for her approach to sentencing. However the judge was there dealing with a quantity of 65.33 grammes of ice containing 63.38 grammes narcotic content. We are satisfied that, while it might be proper to double the sentence because of latent risk where as large a quantity as that is involved, where there is a smaller quantity, such as we have in the present case, doubling would not be appropriate. We consider that the latent risk factor merited additional imprisonment for one year and that the judge should have taken as his starting point for simple possession a sentence of no higher than 18 months. This would make the eventual sentence one of 30 months - 18 months for the offence of simple possession plus another 12 months because of the latent risk factor. The applicant would then be entitled, because of his plea, to a one-third reduction bringing the sentence to 20 months. The sentences imposed will, therefore, be varied accordingly. 8. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence is varied to one of 20 months. 9. We are informed by Mr. Ramanathan, who appears for the applicant, that this will result in his immediate release.
Representation: Mr. Arthur Luk, D.D.P.P. & Miss Laura Ng, G.C. (D.P.P.) for Respondent Mr. Kumar Ramanathan assigned by D.L.A. for Applicant. |
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