HKSAR v. Lee Yin Yu

[English Translation — 英譯本]
CACC 81/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 81 OF 2008

(ON APPEAL FROM DCCC NO. 920 OF 2007)

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Before: Hon Cheung JA, Chu and Barnes JJ in Court

Date of Hearing: 25 September 2008

Date of Judgment: 25 September 2008

Date of Reasons for Judgment: 14 October 2008

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REASONS FOR JUDGMENT

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

1.The applicant was charged in the District Court with three counts of trafficking in a dangerous drug, namely methamphetamine hydrochloride (commonly known as ‘ice’).  The quantities of ‘ice’ involved in the three charges were 0.51 gramme, 0.48 gramme and 1.51 grammes, totalling 2.5 grammes. 

2.The applicant denied the three charges but admitted to possessing the dangerous drug specified in Charges 2 and 3.

3.After trial, the applicant was convicted of trafficking in a dangerous drug as stated in Charge 1.  As for Charges 2 and 3, she was acquitted of trafficking but convicted of possessing a dangerous drug. 

4.On 15 February 2008, the Judge passed the following sentences on the applicant: 

(1) Charge 1: 3 years’ imprisonment; 

(2) Charge 2: 12 months’ imprisonment;

(3) Charge 3: 12 months’ imprisonment. 

The Judge ordered that the sentences for Charges 2 and 3 were to run concurrently, but 3 months thereof was to run consecutively to the sentence for Charge 1.  The total term of imprisonment was 3 years and 3 months. 

5.  The applicant applies for leave to appeal against sentence. 

Facts 

6.On the facts found by the Judge, on 11 July 2007 at Tai Wai Station of the Kowloon-Canton Railway, Shatin, New Territories, the applicant sold the 0.51 gramme of ‘ice’, the subject-matter of Charge 1, to the other defendant in the present case at a price of $100.  That defendant was aged 16 at the time of the offence. 

7.  On the same day, the police found a packet of tissues in the applicant’s handbag and in the packet there was 0.48 gramme of ‘ice’, the subject-matter of Charge 2.  The applicant admitted under caution that the ‘ice’ was for her own use. 

8.   Subsequently, at the applicant’s residence, the police found the two packets of ‘ice’ involved in Charge 3, the total weight of which was 1.51 grammes.  The applicant admitted under caution that this lot of ‘ice’ was also for her own use. 

Sentences passed by the Judge 

9.  In relation to Charge 1, the Judge held that the sale of the dangerous drug by the applicant to a teenager merely aged 16 was an aggravating feature and, on this basis, sentenced the applicant to 3 years’ imprisonment. 

10.   As for Charges 2 and 3, the Judge took into account the case of HKSAR v. Mok Cho Tik [2001] 1 HKC 261 and adopted 12 months’ imprisonment as the starting point.  He went on to say, in paragraph 16 of the Reasons for Sentence: 

… However, in light of the latent risk imposed by the ‘ice’, as shown in the circumstances surrounding Charge 1, I enhance the term of immediate imprisonment by 6 months, i.e. from 12 months to 18 months, in order to reflect such risk.

11.  As the applicant had pleaded guilty to possessing the ‘ice’ involved in the two charges, the Judge reduced the sentence for each charge by one-third from 18 months to 12 months.  The two sentences were ordered to run concurrently. 

12.  Having considered the totality principle, the Judge ordered that 3 months of the sentence for Charges 2 and 3 were to run consecutively to the term of 3 years for Charge 1, resulting in a total sentence of 3 years and 3 months. 

Starting point for Charge 1 

13.   According to the sentencing guidelines laid down in Attorney General v. Ching Kwok-hung [1991] 2 HKLR 25, the starting point for trafficking in ‘ice’ of less than 10 grammes is 3 to 7 years. 

14.In HKSAR v. Yeung Kam Chun CACC 427/2004, the Court pointed out (in paragraphs 16 to 18 of the Judgment) that, in cases of trafficking in small quantities of ‘ice’, the sentencing judge was not bound to adopt a starting point of 3 years and had a discretion to adopt a lower starting point in light of the actual quantity of ‘ice’ involved. 

15.  In the present case, Charge 1 involved merely 0.51 gramme of ‘ice’.  We agree with the view of the Judge that the sale of the dangerous drug to a teenager was an aggravating factor which warranted an enhancement of the sentence.  Nevertheless, in view of the small quantity of ‘ice’ involved, the starting point of 3 years is in our judgment manifestly excessive.  Taking into account the aggravating factor that the applicant sold the dangerous drug to a teenager aged only 16, we consider that 2 years should be adopted as the starting point for Charge 1. 

Starting points for Charges 2 and 3 

16.   In respect of the sentences for Charges 2 and 3, Mr. Leung quoted the judgment in the case of HKSAR v. Wan Sheung Sum [2000] 1 HKLRD 405 at p.407 C-H(1).  In the subsequent case of HKSAR v. Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal commented on HKSAR v. Wan Sheung Sum and the three cases referred to in the above-cited paragraphs of that judgment.  The Court of Appeal expressly pointed out that: (2) although the starting point for possessing a quantity of dangerous drugs which a drug abuser would normally have in his possession was in the range of 12 to 18 months and that was the range adopted particularly for cases in the District Court and the High Court, it did not mean that this was the only appropriate starting point.  The Court of Appeal also said that magistrates could impose lesser terms for very small quantities of dangerous drugs where the circumstances so warranted.  Of particular importance is the emphasis placed by the Court of Appeal on the quantity of the dangerous drug possessed by the defendant as the main governing factor for determining the starting point.

17.  In the present case, the two offences of possessing a dangerous drug, of which the applicant was convicted, involved only 0.48 gramme and 1.51 grammes of ‘ice’.  They were very small quantities.  The case of HKSAR v. Wan Sheung Sum was concerned with 34 grammes of heroin, and the three cases referred to in that judgment involved 26.61 grammes to 95.36 grammes of ‘ice’.  Although the present case was heard in the District Court, 12 to 18 months’ imprisonment was, in light of such small quantities of ‘ice’ involved, plainly not the appropriate starting point.  In our judgment, the appropriate starting points for Charges 2 and 3 should be 6 months’ imprisonment and 9 months’ imprisonment respectively.

18.We also have reservations about the decision of the Judge to enhance the terms for the two offences of possessing a dangerous drug by 6 months on account of ‘latent risk’.  The applicant was originally charged with trafficking in the ‘ice’ involved in the two convictions, but the Judge found that trafficking was not proved.  This being the case and bearing in mind the fact that the Judge had accepted that the applicant was a drug addict and that the ‘ice’ in question was of very small quantities, the Judge’s ruling that the sentence was to be enhanced by 6 months because there was a latent risk that the applicant would share the ‘ice’ with or sell it to others is questionable.  This is particularly so in the case of Charge 2.  The 0.48 gramme of ‘ice’ which formed the subject-matter of Charge 2 was found in the handbag which the applicant carried about, and at the material time she had just sold another small packet of ‘ice’ to the other defendant.  On the one hand, the Judge held that in the circumstances trafficking had not been established and accepted that the applicant merely possessed the small packet of ‘ice’; on the other hand, in respect of sentencing, the Judge found that there was a ‘latent risk’ that the packet of ‘ice’ would be sold to or shared with others.  With respect, we find it difficult to reconcile these findings.  Nor can we discern from the Reasons for Sentence the factors that gave rise to a ‘latent risk’ or the factors that the Judge relied on in assessing the extent of the risk. 

19.  In our judgment, having taken into account the fact that the applicant had since the very beginning admitted to possessing the dangerous drug in question, the appropriate sentences for Charges 2 and 3 should be 4 months’ imprisonment and 6 months’ imprisonment respectively.

Totality of the sentences 

20.The starting points adopted by the Judge in respect of the three offences add up to 5 years’ imprisonment.  The total weight of the ‘ice’ involved in the present case was only 2.5 grammes.  Even if the applicant were convicted on all three counts of trafficking in a dangerous drug, the starting point would, on the sentencing guidelines laid down in Attorney General v. Ching Kwok-hung, still not have been as high as 5 years’ imprisonment.  It can therefore be seen that the starting points adopted by the Judge for the convictions are manifestly excessive.  In the circumstances of the case, in particular in light of the quantities of the drug involved, the total term of imprisonment of 3 years and 3 months imposed by the Judge is manifestly excessive.  We consider that the appropriate total sentence is 2 years’ imprisonment.  Accordingly, we consider that all the three sentences are to run concurrently.

Conclusion 

21.We allow the applicant’s application for leave to appeal against sentence and, treating the application as the appeal itself, we allow the appeal and reduce the terms of imprisonment for the three offences to 2 years, 4 months and 6 months respectively.  All the three terms shall run concurrently and the total sentence is 2 years’ imprisonment. 

Mr. David Leung, Senior Public Prosecutor of the Department of Justice, for the Respondent.

The Applicant, acting in person, present.

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

(1) “ 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.

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.”

(2) The original text (p.267 B to D):

“ Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case.  We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months (and that is the range that has been adopted particularly for cases in the District and High Court).  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.  Obviously the quantity will be the main governing factor which will determine where the starting point will lie.”