HKSAR v. Chan Yat Sing
Read the full judgment text of CACC 777/1997 on BabelCite. This Court of Appeal judgment was delivered on 24 March 1998 before Power V.-P., Mayo JA, Stuart-Moore JA.
Criminal law – dangerous drugs – trafficking in dangerous drugs – methamphetamine hydrochloride – simple possession – sentencing – appeal against sentence – Court of Appeal – proper approach to sentencing where defendant charged with trafficking but convicted only of simple possession – whether sentencing court should start from trafficking guideline and adjust downward – whether sentencing court should start from simple possession sentence and adjust upward for latent risk – applicant reported false kidnapping to police – drugs found in toilet cistern – 97.37 grammes of crystalline solid containing 95.36 grammes of methamphetamine hydrochloride – jury rejected trafficking but convicted unanimously of simple possession – applicant willing to plead guilty to simple possession – trial judge began from trafficking guideline of 10 to 14 years and adjusted down to 5 years – Court of Appeal held this approach was wrong – proper starting point is sentence for simple possession of quantity a bona fide user would normally have, namely 1 to 18 months – sentence then enhanced for latent risk of dissemination – factors including prior heroin use, switch to ice, peripheral criminal underworld involvement, and real danger of dissemination – sentence varied from 5 years to 3 years 6 months – appeal allowed.
Legal issues: Proper sentencing approach for simple possession of large quantity of dangerous drugs
Outcome: Sentence appeal allowed; sentence varied from 5 years to 3 years 6 months' imprisonment.
Cited by 19 cases
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CACC000777/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1997, No.777
------------------------------- Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. Date of Hearing: 24 March 1998 Date of Judgment: 24 March 1998 ---------------------- J U D G M E N T ---------------------- Power, V.-P. (giving the judgment of the Court): 1. The applicant in this matter faced one charge of trafficking in dangerous drugs. The charge alleged that he, at Kwong Yee House, Kwong Fuk Estate, Tai Po, unlawfully trafficked in 97.37 grammes of a crystalline solid containing 95.36 grammes of methamphetamine hydrochloride. He was found guilty after trial before a jury of simple possession and was sentenced by Beeson J. to imprisonment for five years. 2. The facts are unusual. The applicant sought police assistance reporting that his brother had been kidnapped. In fact this was not so at all. When the police came to his premises, they asked him whether he was a drug taker and he admitted taking 'ice' and, upon a search of the premises, a small quantity of ice was found. He was then taken back to the police station where he admitted having had a larger quantity of ice and another search was then undertaken and the quantity, the subject of the charge, was found in the toilet cistern at his home. 3. Clearly the jury were not satisfied that possession for the purpose of trafficking had been established. They unanimously rejected that charge but were unanimous in finding that he was guilty of simple possession. This was not surprising as he was prepared at all times to plead to that charge. 4. The trial judge said when sentencing:
5. When then went on to say she took into account that
6. We are not sure exactly what was meant by that last remark. It may have been that she was indicating that the time of incarceration would be about the same time as the time in which he would have been detained in training centre. However that may be, it is not that part of the judgment which concerns us. The judge expressed reluctance to follow the guidelines applicable to trafficking charges. This reluctance is understandable. In fact she could properly have ignored those guidelines. The sentencing problem when a person who has had possession of a large quantity of drugs is found guilty of simple possession only is not an easy one. We are satisfied that the trial judge, starting as she did with the sentence for trafficking and then adjusting that sentence down was wrong in her approach to sentencing. The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession. This would be a year to 18 months. That sentence then has to be enhanced because of the latent risk factor. In this case that factor was one of very considerable weight. The applicant was formerly a heroin user. He then switched to ice. He lived on the fringe of the criminal underworld selling pirated compact disks. Giving full weight to the jury's verdict and taking into account all of the matters which we have outlined above, in particular the very real danger of dissemination of the drugs, we are satisfied a sentence of 31/2 years would be appropriate and the sentence is therefore, varied from one of five years to one of 3 1/2 years.
Representation: Mr. B.M. Ryan (D.P.P.) for the Respondent. Applicant in person. |