HKSAR v. Cheng Man Bor

[English Translation – 英譯本]
CACC 234/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 234 OF 2007

(ON APPEAL FROM DCCC NO. 46 OF 2007)

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BETWEEN

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Before:  Hon Cheung JA, Yeung JA and Chu J in Court

Date of Hearing: 11 April 2008

Date of Judgment: 15 May 2008

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JUDGMENT

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Hon Chu J (giving the judgment of the Court):

1.The Applicant was brought before the District Court for the following charges: one count of ‘trafficking in a dangerous drug’ (charge 1), namely 10.62 grammes of a crystalline solid containing 10.59 grammes of methamphetamine hydrochloride (commonly known as ‘ice’); one count of ‘possessing a dangerous drug’ (charge 2), namely 23 millilitres of a liquid containing 0.12 gramme of methamphetamine hydrochloride; and one count of ‘possessing an apparatus fit and intended for consuming dangerous drugs’ (charge 3), namely a glass bottle.

2.The Applicant denied charge 1 but pleaded guilty to charges 2 and 3.  After trial he was also convicted of charge 1 by District Judge Li.

3.The Applicant was sentenced to imprisonment for 6½ years, 8 months and 6 months respectively for the 3 charges, with all the terms to run concurrently.

4.The Applicant sought leave to appeal against conviction and sentence on charge 1.  The application for leave to appeal against conviction has been dismissed as the Applicant filed a notice of abandonment on 24 January 2008.  We therefore only have to deal with his application for leave to appeal against sentence.

Agreed facts

5.At trial, the prosecution and defence had no dispute on most of the facts of the case.

6.According to the agreed facts, at about 1210 hours on 20 November 2006, police officers arrived at the Applicant’s residence in Lei Muk Shue Estate to carry out an anti-dangerous-drugs operation and conduct investigations.  At that time, the Applicant was sitting in the living room behind a foldable table on which there were the dangerous drugs and apparatus in question, namely:

(1)     Two plastic bags containing the dangerous drugs involved in charge 1, namely 7.69 grammes of a crystalline solid containing 7.67 grammes of methamphetamine hydrochloride and 2.93 grammes of a crystalline solid containing 2.92 grammes of methamphetamine hydrochloride.

(2)     A glass bottle filled with liquid, together with a straw.  The liquid in the glass bottle was the dangerous drug involved in charge 2, whereas the glass bottle was the apparatus involved in charge 3.

7.On the table there were also 3 lighters, several rolls of toilet paper and some toilet paper shreds.

8.The prosecution and defence also agreed that the retail price of the two plastic bags of ‘ice’ involved in charge 1 was HK$4,471.

The trial on charge 1

9.The particulars of charge 1 were that ‘on 17 November 2006 in Hong Kong [the Applicant] unlawfully trafficked in dangerous drugs’, namely 10.62 grammes of a crystalline solid containing 10.59 grammes of methamphetamine hydrochloride.

10.The main issue under dispute was whether the Applicant had trafficked in the two plastic bags of dangerous drugs as stated in the charge.

11.The prosecution mainly relied on the verbal confessions made by the Applicant at the scene of arrest as well as the contents of a post-recorded cautioned statement and the record of an interview in order to support the charge.  The prosecution’s evidence was that, at the scene of arrest, the Applicant said, under caution and in response to enquiries, that the two plastic bags of ‘ice’ were brought from the Mainland and that the glass bottle was for consuming ‘ice’.  When the police arrested him for trafficking in a dangerous drug and possession of an apparatus fit and intended for consuming dangerous drugs, he said the drugs were for his own consumption in his spare time and were not for sale to others.  The police officer post-recorded in his notebook what the Applicant said, and the Applicant then read and signed on the record for confirmation.  At the subsequent recorded interview, the Applicant said that the two bags of ‘ice’ involved in charge 1 and the glass bottle involved in charge 3 were given by a friend in Mainland China called ‘Ah Shan’ (transliteration) to him to ‘play with’ and he brought those items to Hong Kong from Shenzhen.

12.At trial, the Applicant neither gave evidence nor called any witness.  His defence was that he had been induced by the police to make all the confessions and that he had never said to the police that the drugs in question were brought to Hong Kong by him.

13.Having considered the prosecution evidence, the trial judge was satisfied that the Applicant had made the verbal confessions at the scene of arrest and that the record of interview had been given by him voluntarily.  On that basis, the Applicant was convicted on charge 1.

14.In paragraph 24 of his judgment, the trial judge explained his decision as follows:

24.       According to what the Defendant said in exhibit P11, [the drugs] were given to him as a gift by a friend and the quantity is sufficient for the Defendant’s consumption for one month.  That friend only arranged to meet him occasionally and he did not even know his friend’s telephone number.  Furthermore, as an agreed fact [exhibit P11, paragraph 4], the value of the dangerous drugs is about $4,500.  In light of all this, the suggestion that the dangerous drugs in question are all for the Defendant’s own consumption is in my view contrary to common sense.  The term ‘trafficking’ is defined in the ordinance to include importing a dangerous drug into Hong Kong.  On the basis of the Defendant’s confession, I am satisfied that his act of bringing the drugs to Hong Kong already constituted trafficking in them, and hence I find the defendant guilty of the offence.  However, I do not fully accept that all the drugs are for his own consumption.

The sentence imposed by the trial judge

15.The Applicant is aged 39, married and has a daughter aged 11.  He has been a drug addict for 5 to 6 years.  He has two previous conviction records, one of which is drug-related.  In 2004, in respect of an offence of possessing dangerous drugs, he was sentenced to imprisonment for 4 months, suspended for 18 months, as well as a fine of $3,000.  The Applicant runs decoration and funeral businesses in partnership with others and earns a total monthly income of about $40,000.

16.Counsel for the Applicant submitted in mitigation that the dangerous drugs were for the Applicant’s own consumption, but the trial judge harboured doubts about this.  The Applicant therefore elected to give evidence in support of the submission.  The trial judge considered the Applicant’s evidence and found it incredible.  In paragraphs 7 and 8 of his Reasons for Sentence, the trial judge said:

7.         I take into account the following factors:

a.   The ‘ice’ in question was contained in two bags, which weigh 7.67 grammes and 2.72 grammes.

b.   The Defendant’s testimony in explaining that the dangerous drugs are for his own use is highly incredible.

c.   The dangerous drugs, which are worth $4,500, could not have been given to him for free, in particular by a friend whose telephone number the Defendant did not even know, and the quantity of the drugs is sufficient for consumption by the Defendant for one month.

d.   The Defendant is addicted to drugs.

8.       On the above analysis, I am satisfied that the heavier bag [of dangerous drugs] is for trafficking and the bag with a smaller quantity is for the Defendant’s own use.

17. As for sentencing, the trial judge explained his decision in paragraphs 9 to 12 of his Reasons for Sentence, which run as follows:

9.         On charge 1, for the ‘ice’ that weighs 7.67 grammes, the starting point should be 6 years.  As for the ‘ice’ which weighs 2.92 grammes and which is for self-consumption, the starting point should be 15 months. As the Defendant is addicted to drugs, the risk of him sharing the dangerous drugs with others cannot be ruled out, and hence the sentence is to be enhanced by 6 months on account of such latent risk, making a total term of 21 months.  However, as the Defendant admitted before trial that the ‘ice’ was for self-consumption, a one-third discount is given for this part of the sentence and the term of imprisonment for the self-consumption portion should be 14 months.  Taking into account the totality principle and the limit of my sentencing jurisdiction, I hereby sentence the Defendant to 6½ years’ imprisonment on charge 1.

10.       On charge 2, I adopt 12 months as the starting point and reduce it by 4 months on account of the guilty plea.  The Defendant is sentenced to 8 months’ imprisonment.

11.       On charge 3, I adopt 9 months as the starting point and reduce it by 3 months on account of the guilty plea.  The Defendant is sentenced to 6 months’ imprisonment.

12.       Having considered the circumstances as a whole, I order that all the sentences shall run concurrently, and the Defendant is sentenced to imprisonment for a total of 6½ years.

Grounds of appeal

18.Concerning charge 1, the Applicant has put forward the following three grounds of appeal against sentence:

(1)     After determining the sentence for the dangerous drugs which he reckoned were for the Applicant’s own use, the trial judge added it up with the sentence for the dangerous drugs which he reckoned were trafficked in by the Applicant. Such an approach was wrong in principle and rendered the overall sentence in excess of what was stated in the guideline in AG v. Ching Kwok Hung [1991] 2 HKLR 125, thereby causing unreasonableness and unfairness to the Applicant.

(2)     In light of the trial judge’s finding that 2.92 grammes of the ‘ice’ is for the Applicant’s own consumption, a term of imprisonment of 6½ years is excessive.

(3)     In the circumstances of the case as a whole, the overall sentence of 6½ years’ imprisonment is manifestly excessive.

The basis for conviction on charge 1

19.Before dealing specifically with the Applicant’s appeal against sentence, the basis for his conviction on charge 1 has to be considered.

20.The trial judge pointed out in paragraph 3 of the judgment that the prosecution case mainly rested on the confession made by the Applicant at the scene of arrest and in the record of interview that the drugs in question were brought by him to Hong Kong from the Mainland. In paragraph 24 of his judgment, the trial judge further referred to the definition of ‘trafficking’ in section 2 of the Dangerous Drugs Ordinance and held that as the Applicant had admitted that he had brought the drugs from the Mainland to Hong Kong, his act constituted the importing of the drugs into Hong Kong, and he was therefore convicted on charge 1.  Mr Chan, Counsel for the Applicant, submits that the trial judge convicted the Applicant on the charge solely on the basis of his confession that he had brought the drugs into Hong Kong.

21.Mr Lee, Counsel for the prosecution, takes issue with Mr Chan’s submission.  Mr Lee contends that, as shown by the trial judge’s statement in paragraph 24 of his judgment that he did not fully accept that all the drugs were for the Applicant’s own use, the Applicant was not convicted solely on the basis of his act of bringing the dangerous drugs to Hong Kong.  The judge was of the view that the conviction on charge 1 also comprised the actual trafficking in dangerous drugs.

22.In our view, generally speaking a judge has a duty to state clearly in his judgment the factual and legal bases of a conviction.  In the present case, the trial judge pointed out at the beginning of his judgment that the basis of prosecuting the Applicant was his confession of having brought the drugs into Hong Kong.  Furthermore, apart from this, if the trial judge considered there were other factual and legal bases in the case which constituted the offence of trafficking, he must specify those bases in his judgment.  It did not suffice to merely state that the Applicant’s allegation of having the drugs for his own use was against common sense and that the judge did not accept that all the drugs were for the Applicant’s own use.  Further, even if the trial judge did not accept that the Applicant had mentioned in his confession that the drugs were for his own use, this did not mean that there was concrete evidence to prove that the Applicant had not only brought the drugs into Hong Kong but had also actually trafficked in the drugs. If the trial judge intended to infer from the quantity of the drugs or from other evidence that the Applicant had actually trafficked in the drugs, he must specify in his judgment the factual basis and grounds upon which he made such an inference.  However, the trial judge made no mention in his judgment of any inference of trafficking in drugs.  For these reasons, in light of the evidence in the present case and the trial judge’s judgment, the Applicant’s confession of having brought the drugs into Hong Kong was the only basis on which he was convicted of charge 1.

The sentence on charge 1

23.In The Queen v. Chan Mung Lung [1992] 2 HKCLR 127, the defendant was found to be in possession of heroin upon his arrival in Hong Kong via Lo Wu.  He pleaded guilty to a charge of trafficking in a dangerous drug but claimed that the drug was for his own use.  He was sentenced to 4½ years’ imprisonment.  The Court of Appeal held that a relevant sentencing consideration was whether the defendant had brought the drugs into Hong Kong for self-consumption or for trafficking, and that self-consumption constituted a strong mitigating factor.  The Court of Appeal went on the hold that, as the trial judge had not made a finding on whether the drugs brought by the defendant into Hong Kong were for his own use, he was to be sentenced on the factual basis that was the most favourable to him, and the defendant’s term of imprisonment was accordingly reduced to 1½ years.

24.In R v. Chung Kau Fai [1993] 1 HKC 42, the defendant was found to be in possession of heroin upon his arrival in Hong Kong from Bangkok.  He pleaded guilty to trafficking in a dangerous drug.  It was submitted in mitigation on his behalf that the drug was for his own use.  The trial judge sentenced the defendant to 9 years’ imprisonment, rejecting as incredible his claim that the drug was entirely for his own use.  In considering the defendant’s appeal, the Court of Appeal reiterated that it would be a mitigating factor if the defendant had brought the drug to Hong Kong for self-consumption.  The Court of Appeal took the view that, prior to sentencing the trial judge neither clearly indicated that he did not accept the defendant’s claim that the drug was entirely for his own use, nor gave the defendant an opportunity to adduce evidence in support of his claim, and therefore what the defendant said by way of mitigation must be taken as genuine for sentencing purposes.  The defendant’s term of imprisonment was reduced by two years.

25.Similarly, in a more recent case, HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal pointed out that if a defendant pleaded guilty to trafficking in dangerous drugs but claimed that the drugs were mainly for his own use, the judge must address and consider this mitigating factor; and if the judge accepted that a substantial portion of the drugs was for the defendant’s self-consumption, he must acknowledge this by adjusting the sentence as appropriate.

26.In the present case, the dominant mitigating factor put forward by the Applicant was that the drugs involved in charge 1 were all for his own use.  Nonetheless, the trial judge doubted this claim and, quite appropriately, conducted an inquiry into it.  Having heard the Applicant’s testimony, the trial judge considered it incredible and rejected the claim that all the drugs were for the Applicant’s own use.  The trial judge further held that the heavier of the two bags of drugs was for trafficking and the other one was for the Applicant’s own use.

27.In our judgment, in the given circumstances, the trial judge should first have fixed the starting point for charge 1 on the basis of the total weight of the two bags of drugs, and then reduced the sentence as appropriate for the reasons that part of the drugs was for the Applicant’s self-consumption and that he had admitted from the outset that the drugs were for self-consumption.

28.Here, however, the trial judge adopted two starting points for the two plastic bags of drugs, respectively on the basis of trafficking and possession.  With respect, this approach was in our view improper.  First, the Applicant faced only one charge of trafficking, not two charges, in relation to the two bags of drugs, and it was wrong in principle to fix two starting points for one single charge.  Furthermore, the total weight of the two bags of ‘ice’ was 10.59 grammes and, pursuant to the guidelines on the starting point of ‘ice’-related offences as laid down in AG v. Ching Kwok Hung [1991] 2 HKLR 125, the starting point for the present case should not exceed 7 years and one month.  However, on the trial judge’s approach, the two starting points added up to 7 years and 3 months (6 years + 15 months), and further adding to it the ‘latent risk’ factor, the starting point became 7 years and 9 months (6 years + 21 months), which was on the high side. Even taking into account the Applicant’s admission all along that the drugs were for self-consumption, the eventual sentence of 7 years and 2 months imposed by the trial judge was still slightly excessive.

29. Apart from this, in relation to the lighter bag of drugs, it was inappropriate for the trial judge to add 6 months to the sentence on the ground of ‘latent risk’. First, the trial judge had accepted that the Applicant was addicted to drugs, and there was nothing peculiar about the packing and quantity of the lighter bag of drugs which would indicate a possibility of the drugs being sold to or shared with others.  Second, and more importantly, given that the trial judge had inferred that only this bag of ‘ice’ was for the Applicant’s own use and that the other bag of ‘ice’ was for trafficking, he should not have proceeded to infer, merely by reason of the Applicant’s drug addiction, that he might share the drugs with others, and then enhance the sentence by 6 months on the basis of this inferred risk.

Conclusion

30.On the basis of the above analysis, the sentence on charge 1 as imposed by the trial judge is in our judgment improper in principle and should be set aside.

31.In light of the weight of the drugs involved in charge 1, we adopt a starting point of 7 years and one month.  Taking into account the trial judge’s finding that 2.92 grammes of the ‘ice’ involved was for the Applicant’s own use and the mitigating factor that the Applicant had all along admitted that the drugs were for his own use, we reduce the term of imprisonment by two years.  The sentence for charge 1 should be 5 years’ imprisonment.

32.Accordingly, we grant leave to appeal against sentence on charge 1.   Treating the application as the appeal, we allow the appeal against sentence on charge 1, alter the term of imprisonment to 5 years and order that it shall run concurrently with the sentences on charges 2 and 3.

Mr Chan Siu Ming, instructed by Louis Chan & Co., for the Applicant

Mr Robert Lee, Senior Assistant Director of Public Prosecutions, and Ms Virginia Lau, Senior Government Counsel, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.