CRIMINAL CASE NO. 45 OF 2010
COURT: On the first day of this trial, the defendant pleaded not guilty to trafficking in the drugs particularised in the charge on the indictment but guilty to simple possession. The prosecution did not accept that plea and the case proceeded to trial.
Yesterday, which was the fourth day of the trial, the defendant was convicted by the jury of trafficking in a dangerous drug.
Before my summing-up and, indeed, before the speeches of counsel, I had canvassed with both counsel my directions on trafficking in the light of the defence put forward, which was that the drugs in question were in the possession of the defendant (see paragraph 23 of the first Admitted Facts) but for his own consumption, he having been addicted to the drug in question for many years.
The third Admitted Facts showed that upon the defendant's admission to Lai Chi Kok Reception Centre on 1 September 2009, two days after his arrest, he was found to have methamphetamine hydrochloride, or “Ice”, in his urine.
Prosecuting counsel invited me to direct the jury that the defendant would still be guilty of the charge if the jury were sure he was trafficking in some of the drugs, albeit not all of the drugs. Defence counsel urged me to give an 'all or nothing' direction; in other words, either the jury could be sure the defendant was trafficking in all of the drugs, in which case he would be guilty as charged, or they were not sure, in which case, he should be found guilty of simple possession only.
Whilst I understood the tactical basis for the defence position, I agreed with the prosecution's view of the law. Accordingly, I indicated to both counsel that I would direct the jury that the prosecution case was that the defendant was trafficking in all of the drugs particularised in the charge. However, if they were satisfied so that they were sure that the defendant was trafficking in some of the drugs in the charge but not all of the drugs, he would still be guilty of trafficking.
That, however, left the question of knowing on what basis the jury had convicted, were they to convict the defendant of trafficking as charged. In the light of the way I was proposing to direct the jury, I would inevitably be faced, in the event of conviction, with a plea in mitigation that the defendant could well have been found guilty of trafficking according to my directions in only some of the drugs and that the remainder, therefore, were for his own consumption.
It would still then fall to me, as a sentencing exercise, to determine whether and, if so, to what extent, I should accede to such a plea and reflect it in my sentence. I decided, with ultimately the agreement of both counsel, that since the position of the prosecution was that all of the drugs were for trafficking, whilst the position of the defence was that all of the drugs were for his own consumption, and that since the jury had heard all of the evidence on the issue and were the finders of fact, they should tell me the basis of their conviction if they found the defendant guilty of trafficking.
Accordingly, I added to the pro forma which was given to the jury before they retired and I went through it and explained it carefully to them that, in the event of convicting the defendant of trafficking in a dangerous drug, they should inform me whether the basis of their conviction was that “all” of the drugs in his possession were for trafficking, or “some” of the drugs were for trafficking.
I further directed them that at least five of them should agree that “all” of the drugs were for trafficking, otherwise the answer should be “some”. This was to cater for the possibility that while the jury may be satisfied so that they were sure the defendant was guilty of trafficking, some of those who found him guilty may have been sure he was trafficking in all of the drugs, whilst others may have been sure he was trafficking in only some of the drugs.
The jury indicated their understanding of the pro forma and my directions and no questions or request for clarification was received from them at all before they ultimately delivered their verdict.
It seems to me proper, in very limited circumstances, to understand the basis of a jury's verdict where it may have a significant impact on sentence and where only the jury can know which of two valid alternative or competing bases presented to them in a summing-up they have convicted upon.
But the exercise is not something to be resorted to other than very sparingly in clear-cut cases such as this. The question should not hint at seeking any sort of justification for a verdict, nor should it be convoluted or complex. It should be simple and easily understood. The jury should never be taken by surprise, after their verdict, by a question from the Bench which may intimidate them or lead to confusion or an ill-considered answer.
In this case, the question, which was limited in scope and simple and unequivocal in its terms and flowed directly upon their verdict, was included on their pro forma when they retired. They had no difficulty understanding or answering it and obviously considered it carefully in their own time in the privacy of their jury room when deliberating upon their verdict, and it has enabled me to understand their verdict and pass a sentence which properly reflects the facts which they have found. It also obviates the risk of me reaching a different view of the facts and the verdict than that intended by the jury.
Their verdict was guilty of trafficking, which they duly explained was on the basis of trafficking in some of the drugs particularised in the charge.
I now have to decide whether, and to what extent, the jury's finding affects the sentence which would otherwise be appropriate for trafficking in 14.54 grammes of methamphetamine hydrochloride. According to the guidelines in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, the guidelines for sentence after trial for trafficking between 10 and 70 grammes of this particular drug are 7 to 10 years' imprisonment.
Without being too mathematical about it, since a strict application of sentence to quantity can sometimes fail to properly reflect the surrounding circumstances of an offence and an offender, I consider that an appropriate range of sentence in this case would be between 7 and 7½ years' imprisonment.
There is, however, a matter which concerns me and on which I have sought assistance from counsel and, in particular, from the prosecution. The matter arises in this way. In the recent case of HKSAR v Abdallah [2009] 2 HKLRD 437, the court, when addressing sentencing levels for trafficking in very large quantities of dangerous drugs - in that particular case, heroin - held that there were a number of recognised aggravating factors which called for the enhancement of sentences.
One of those factors was that the trafficker had previously been convicted of trafficking in dangerous drugs. The court went on to say, at paragraph 43 of the judgment, that it did not envisage, for any of the four aggravating factors, the enhancement for amounts above a kilogram of heroin would be less than 2 years' imprisonment.
I am not, of course, here dealing with such quantities. Nevertheless, it seemed to me that the principle must surely obtain, whatever the quantity of drug concerned, where a defendant has been previously convicted, as he has here, of the same offence of trafficking in a dangerous drug.
Mr Zervos, Senior Counsel, who appears before me today in place of Miss Ng who prosecuted, has, at my invitation, made brief submissions on the point I raised and drawn my attention to paragraph 32 of the judgment in Abdallah which makes it clear that the principle is one of general application in sentencing in trafficking cases, regardless of quantity.
The difficulty, however, which I voiced during submissions is, firstly, that unlike the Abdallah case where the actual level of enhancement is suggested above a certain quantity, I am not aware of any guidelines on the levels of enhancement for much lesser quantities.
Mr Zervos is obviously right that it must be a matter within the sentencer's discretion, but that may yield certain variations between different sentencers where the courts, particularly in cases of drug trafficking, are striving for consistency of sentence and approach. Secondly, my own perception of sentencing at first instance, through the eyes of the Bench and the Bar, is that many judges do not specifically enhance a sentence for trafficking in drugs because of a previous similar conviction.
That perception is reinforced when one examines a number of sentences which come before the Court of Appeal where a repeat offender has been sentenced for trafficking in dangerous drugs in either the District Court or the High Court. Nevertheless, the principle seems to be a sound one of universal application in trafficking cases, particularly, I would have thought, after pleas of not guilty.
In this particular case, the defendant was arrested for possession of methamphetamine hydrochloride, which charge was subsequently raised to trafficking, less than a year after coming out of prison, having served a 4-year sentence for another offence of trafficking in dangerous drugs.
Not only does he not appear to have learned his lesson from his earlier sentence but it rather undermines the suggestion made in evidence that he had been addicted to “Ice” for some 10 years. For the duration of his previous sentence, one assumes he cannot have been taking any drugs. Therefore, he must have resolved, less than a year after coming out of prison, to return to trafficking in dangerous drugs. The jury could not, of course, have known that he had been in prison for the same offence, and therefore not on drugs and consuming “Ice”, for a substantial part of 2006, 2007 and 2008.
Having considered the circumstances of this case, and the submissions of both counsel, including Mr Wu's point that this is too small a quantity to consider enhancing the sentence in a meaningful way, I am not minded in this case to specifically enhance the sentence by a particular amount. However, what the defendant's previous record for trafficking does impel me to do is to adopt a starting point at the top of the range I earlier indicated, namely 7½ years' imprisonment. I do not see why, for a repeat drug trafficker, I should adopt a starting point at the more lenient end of the applicable range.
The next question is whether, and to what extent, I should reduce the sentence of 7½ years' imprisonment for the jury's finding that the defendant was trafficking only in some of the drugs particularised in the charge but not in all. The jury must have accepted that you did take “Ice” yourself which, as I say, was supported by the finding of “Ice” in your urine upon your admission to Lai Chi Kok Reception Centre on 1 September 2009, which fact was admitted; and therefore, that some of the drugs particularised in the indictment were for your own consumption.
However, they also found that you were trafficking and the evidence of the packaging, the electronic scale, your notebook, the fact that you were out and about on the streets and in your car for more than 12 hours after apparently buying the “Ice” while the drugs and scale all along remained in your car, the fact that you had not yourself, according to your own account, consumed any “Ice” since the morning of 29 August and would not have been able to consume it again until you got home at about 5 am on the 30th, yet you say you needed to take it twice a day, in the morning and evening, and the numerous telephone calls made to your alleged supplier even after you say you had bought the drugs from him, was all compelling evidence, in my judgment, that you were trafficking in a substantial quantity of the dangerous drugs.
Mr Wu has conducted an able and realistic defence on your behalf throughout this trial and said everything that he can say on your behalf in mitigation.
I shall honour the jury's verdict that you were trafficking in some of the drugs by discounting your starting point of 7½ years by 1½ years, or 18 months.
Will you stand up, Defendant. The sentence of the court upon the count on the indictment is that you go to prison for 6 years.