HKSAR v. Tsui Wai Keung, Joe

CACC 339/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 339OF 2006

(ON APPEAL FROM HCCC NO. 58 of 2006)

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BETWEEN

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Before : Hon Stuart-Moore VP, Burrell and McMahon JJ

Date of Hearing : 4 May 2007

Date of Judgment : 4 May 2007

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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 26 July 2006, following a 2-day trial before Deputy High Court Judge Wright (as he then was), the applicant was convicted by a jury of trafficking in a crystalline solid containing 40.78 grammes of methamphetamine hydrochloride (‘ice’).  The applicant was sentenced on the same day to 8½ years’ imprisonment against which he now seeks leave to appeal.

2.The sentence which the applicant is serving precisely accords with the sentencing guidelines in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 and Mr Chan Siu-ming, for the applicant, does not seek to argue otherwise.  Mr Chan’s argument was that the applicant had testified that he was a consumer of ice and that there had been support for this in the form of evidence, which was adduced before the jury, of a previous conviction (recorded on 18 March 2003) for possession of dangerous drugs.  He submitted, that if the jury had followed the judge’s directions and found that only part of the ice in the applicant’s possession was to be used for trafficking, a verdict of guilty was bound to result.  Mr Chan contended that, by passing a sentence which reflected the guideline sentencing tariff in full, the trial judge had failed to take into account that part of the ice at least may have been for self-consumption.

3.In a 2^nd ground, Mr Chan submitted that, in a case where there were no aggravating features, credit should have been given for the acceptance on the part of the applicant of his possession of the ice which, in turn, had substantially reduced the length of the trial.

4.In regard to the 1^st ground of appeal, Ms Grace Chan’s helpful submission on the respondent’s behalf drew our attention to this court’s decision in HKSAR v Wong Suet-hau and Anor [2002] 1 HKLRD 69 at 79-80 where it is stated that:

“	(1)	Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.
	(2)	Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.
	(3)	In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply.  The factors to be considered will include:
		(a)	the quantity of drugs and, if known, their value;
		(b)	the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;
		(c)	where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;
		(d)	the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;
		(e)	whether the defendant is an addict, or is otherwise accepted to have been an habitual user of the drug in question;
		(f)	the explanation given by the defendant following arrest;
		(g)	the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and
		(h)	the defendant’s criminal record, if any, in relation to previous drug offences.
		Usually, a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold: Criminal Pleading, Evidence and Practice 2002 para.5-20).
	(4)	Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case, where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms.  In such circumstances, the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking.  However, in doing so, the judge should keep well in mind:
		(i)	the fact that possession of dangerous drugs itself carries a term of imprisonment;
		(ii)	the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.
		An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice (see: HKSAR v Lam Wai Ip (unrep., Crim App No 214 of 1997, [1997] HKLY 349) and ecstasy (see: HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 at p.52, [1998] 2 HKC 371 at p.376).
	(5)	Where the mitigation has necessitated the holding of a Newton enquiry, after which the mitigation is rejected, the court will be entitled to reduce, by an amount appropriate to the circumstances, the discount normally given, following a plea of guilty (see: R v Lee Chiu Pang [1995] 2 HKC 523 at p.526).
	(6)	Sentencers should remember as to ‘trafficking’ itself, that its gravity is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction (see:  The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370 at p.385).”

5.The facts in the present case reveal that the applicant was arrested after he had been stopped at a police roadblock.  He was the sole occupant of the car.  The street value of the ice, which was in the applicant’s trouser pocket, was $12,327 and would have been enough for an average consumer to have lasted about 64 days.  The applicant also kept an electronic scale in a bag at his side.

6.To be set against the factors which the prosecution had submitted at trial led to an inference of trafficking rather than consumption, the applicant had spoken of earning a monthly salary of about $12,000 to $15,000 and he referred to buying ice in bulk in order to get a discount and to reduce the number of purchases he had to make.  He explained the electronic scale’s use as a way of avoiding being cheated and he said that this quantity of ice had cost him $8,000.  The applicant called a witness, Ms Lam Chi-fai, who described herself as his employer.  However, she was not able to produce any of the usual records of employment to confirm that this was so.

7.At trial, the applicant denied any involvement in trafficking whatsoever.  His evidence was plainly disbelieved and, as Ms Chan argued in her written submission, the inference must be that the majority of the ice found on him was for the purpose of trafficking.

8.The 2^nd ground of appeal related to a saving of time on the part of the applicant by his acceptance of possession of the ice.  This was an unrealistic submission.  The applicant’s trial was going to be extremely short on any view and his defence was one of ‘confess and avoid’.  He confessed his possession to avoid the consequences of a conviction for trafficking.

9.We are satisfied, in all the circumstances of this case, that the sentence was appropriate.  We can find no merit in the application and, accordingly, it is dismissed.

Ms Grace Chan, SGC of the Department of Justice, for the Respondent.

Mr Chan Siu Ming, instructed by Messrs Henry H C Wong & Co., assigned by Director of Legal Aid, for the Applicant.