HKSAR v. Chong Heung Sang

CACC 221/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 221 OF 2009

(ON APPEAL FROM HCCC NO. 78 OF 2009)

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Before:  Hon Tang VP and Cheung JA in Court

Date of Hearing: 18 November 2009

Date of Judgment: 18 November 2009

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J U D G M E N T

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Hon Tang VP:

1.The applicant was arrested on arrival in Hong Kong from Shenzhen after he had passed through the Green Channel at the Customs Arrival Hall at Lok Ma Chau.

2.When he was searched, in his underpants 248.58 grammes of a powder containing 200.80 grammes of ketamine was found.  When asked what the white powder was, the applicant replied:

“It is K powder and for my own consumption, sir.”

3.In his right front small pocket of the applicant’s jeans, there was a zip lock bag containing white powder.  When asked what it was and he said:

“It is also K and for my own consumption.  Give me a chance.”

4.He also said:

“The K powder was bought at RMB8,000 in 838 Disco.”

5.The drugs had a retail value in Hong Kong of HK$31,818.24. 

6.The applicant also claimed during an interview that he had been taking ketamine for about two to three years, that he consumed ketamine about four or five times a day and took about one gramme each time.  He also said that he had gone to Shenzhen to celebrate his birthday and that was when he bought the “K powder”.

7.The applicant had pleaded guilty and was sentenced to 6 years' imprisonment after a one-third discount for his plea. 

8.In sentencing him, Wright J followed the guideline laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  There this Court indicated that for trafficking in a quantity of between 50 and 300 grammes of ketamine, the appropriate period of imprisonment is 6 to 9 years.  Because the defendant had fractionally over 200 grammes of ketamine, the learned judge had adopted as an appropriate starting point after trial of 8 years and 3 months.  But because of the aggravating factor of importation, he adopted 9 years as the starting point.

9.As this Court has pointed out in HKSAR v Abdallah [2009] 2 HKLRD 437, Stuart-Moore VP had said in HKSAR v Hong Chang-chi [2002] 1 HKLRD 486:

“22.   … the very act of importation from abroad, is an aggravating factor. …”

10.I have no doubt that the fact of importation is an aggravating factor.  Given the quantity involved, I can see no reason why an upward adjustment of 9 months should be considered inappropriate.

11.I turn to consider the starting point of 8 years and 3 months.  Mr William Tam, SADPP, on behalf of the respondent, submitted that according to an arithmetical calculation, the learned judge could have adopted at an initial point of about 7 years and 10 months.  He said, given a starting point of 6 years for 50 grammes and 9 years for 300 grammes, for every 6.944 grammes in excess of 50 grammes, one more month of imprisonment could be added to the 6 years.

12.But, with respect, I do not believe that sentencing should be reduced to a mathematical formula.  It is obvious that the amount of drugs involved is normally the single most important element when considering the appropriate sentence and very often it is decisive.  But as Stuart-Moore VP said when delivering the judgment of the court in Abdallah:

“33.   In this regard, it is worthwhile remembering the way Silke VP expressed some of the considerations to be kept in mind when sentencing heroin traffickers from amongst his concluding remarks in R v Lau Tak-ming (at page 386):

‘Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf.  It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.’”

The same principles apply to drugs such as ketamine.

13.Here, as Wright J has correctly pointed out when he sentenced the applicant, on the applicant’s own case he was guilty of trafficking.  The applicant’s case was that the drugs were imported for his own consumption although there might be some social trafficking.

14.The definition of trafficking in the Dangerous Drugs Ordinance, Cap. 134 is wide and reads:

“‘trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and ‘traffic in a dangerous drug’ shall be construed accordingly;”  Section 2.

15.As for social trafficking, I would respectfully repeat what Stuart-Moore VP has said in Hii Siew Cheng:

“98.    The second matter is closely related to the first.  We should perhaps repeat what was said in HKSAR v Wong Suet-hau [2002] 1 HKLRD 69 wherein this Court dealt with the approach to be taken to ‘social trafficking’.  The Court of Appeal in that case said:

51.   In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

16.Here, when sentencing the applicant, Wright J said:

“… You accept, however, that not only did you traffic by importing these drugs, but that you, according to your version, intended to share them with others.

That type of distribution remains trafficking.  Whether you are selling them or just doing what is erroneously, in my view, referred to as ‘social trafficking’ does not avail you.”

17.However, the learned judge did not say whether he had accepted the applicant’s assertion that the drugs were for his own consumption though he intended to share with his friends.  Mr Charles J Chan, counsel for the applicant, mentioned that no Newton hearing was held.  But as explained in HKSAR v Wong Suet-hau [2002] 1 HKLRD 69 very often no Newton hearing is required.  There, Stuart-Moore VP, in the judgment of the court, pointed out the court should consider a number of factors, including:

“(a)    the quantity and value of the drugs; (See p.79C.)

(b) the general circumstances, including how the drugs were wrapped and how many packets were found; (See p.79D.)

(c) where the drugs had 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; (See p.79D-E.)

(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 used for consumption; (See p.79E.)

(e) whether the defendant was an addict or habitual user; (See p.79F.)

(f)  the explanation given by the defendant following arrest; (See p.79F.)

(g) the defendant's general means and his ability to pay for his drugs otherwise than by trafficking in them; and (See p.79F.)

(h) the defendant's criminal record in relation to previous drug offences. (See p.79G.)”

18.Here, it is not apparent that the learned judge had considered any of these factors, especially, whether the defendant was a habitual user.

19.I have to say that given the quantity involved the defence is difficult to believe.  But in the absence of a careful consideration of all the relevant factors, I do not believe it is fair to proceed on the basis that, for example, the defendant’s assertions that he was a habitual user and that some of the drugs was for his own consumption are untrue.  In such circumstances, I believe the defendant should be sentenced on the basis that the drugs were partly bought for his own consumption, partly for conventional trafficking and partly to share with his friends.

20.That being the case, I do not believe a starting point of 9 years, which represents the upper limit, can be justified.  This is not to say that the offence is not serious.  The drugs were imported and substantial.  Nor would I underplay the pernicious effect of social trafficking.  The applicant claimed that he would consume 4 or 5 grammes of ketamine a day.  From the evidence available in Hii Siew Cheng, that would seem to an exaggeration.  But in any event even on the applicant’s case 200 grammes represent at least 200 doses. 

21.“Trafficking in dangerous drug”, carries a maximum sentence of imprisonment for life.  However for “Possession of dangerous drug otherwise than for trafficking, and consumption of dangerous drug”, the maximum sentence on conviction upon indictment is imprisonment for 7 years.  The amount of drugs involved in this case, had it been a case of simple possession, would have warranted a very heavy sentence if not the maximum of 7 years.  Indeed, it is hardly conceivable that a person would be convicted of simple possession if he was in possession (as the applicant was in this case) of a very substantial amount of dangerous drug. 

22.Here, of course, as the learned judge has correctly pointed out, the applicant is guilty of trafficking for at least two reasons; First, the importation of drugs into Hong Kong, and secondly, social trafficking.  And I would add, conventional trafficking.  In such circumstances, I believe a starting point of 8 years is appropriate.  After the usual one-third discount the actual sentence is 5 years and 4 months.

23.I have not dealt with other personal factors which have been mentioned in the written submission in mitigation on behalf of the applicant, such as his personal circumstances.  In this kind of cases, the court has repeatedly said such factors carry little weight.

Hon Cheung JA:

24.I agree.

Hon Tang VP:

25.Leave to appeal against sentence is granted.  Hearing of application be treated as hearing of the appeal.  The appeal is allowed.  The sentence of the applicant is reduced to 5 years and 4 months.

Mr William Tam, SADPP, of the Department of Justice, for the Respondent.

Mr Charles J Chan, instructed by Messrs Henry Wan & Yeung, assigned by the Director of Legal Aid, for the Applicant.