Secretary for Justice v. Chan Chun Fai

CAAR 11/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 11 OF 2010

(ON APPEAL FROM HIGH COURT CRIMINAL CASE NO. 134 OF 2010)

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BETWEEN

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

Date of Hearing : 28 April 2011

Date of Judgment : 28 April 2011

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Hon Cheung JA (giving judgment of the Court) :

1.The defendant pleaded guilty to one count of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134). The drugs were 12.85 grammes of methamphetamine hydrochloride (‘Ice’).

2.Wright J sentenced him to a term of 18 months’ imprisonment.  The Secretary for Justice applies for a review of the sentence on the ground that it is wrong in principle and manifestly inadequate.

Facts

3.The facts are straightforward.  On 19 February 2010 the defendant was about to travel from Hong Kong to Macau by ferry.  After he passed through the Hong Kong Immigration clearance counter, he was stopped by Custom officers and the drugs were found in his shoulder bag.  The defendant told the Custom officers that the drugs were for his own consumption.  The prosecution accepted that the drugs were for the defendant’s own consumption.

The Judge’s approach

4.On that basis, the Judge used a starting point of 18 months’ imprisonment, increased it by 9 months to 27 months to take into account the fact that the defendant was exporting the drugs and then reduced the 27 months by one third because of the plea of guilt and arrived at a sentence of 18 months’ imprisonment.  This is what the Judge said,

‘In my judgment, to take a starting point such as is appropriate for trafficking in the sense of supplying, and then to reduce it to a level completely inconsistent with sentences imposed for that very conduct, is wrong in principle. It ignores the reality of the situation, which is that there was no intent to supply.

The appropriate approach is to consider what the sentence would be for possession of the drug, and then to escalate that sentence for the aggravating element of exportation which created the offence of trafficking, for undoubtedly taking a drug across a border, however artificial or arbitrary the border between Hong Kong and Macau may now be, constitutes conduct of greater criminal culpability.’

Our view

5.While we understand the Judge’s concern that the drugs were for the defendant’s consumption, in our view, the Judge’s approach was incorrect as a matter of principle.  To start with, the defendant had committed and pleaded guilty to the offence of trafficking.  It was not in any sense a technical offence.  He was bringing the drugs from Hong Kong to Macau, this constituted exporting the drugs within the meaning of section 2 of the Ordinance, namely, ‘to take or cause to be taken out of Hong Kong or any other country, as the case may be, by land, air or water’.  Trafficking as defined by the Ordinance includes exporting the drugs from Hong Kong.    

6.This Court (Silke JA, Bewley J and Power J (dissent)) has held in Attorney General v. Lau Chi-sing [1987] HKLR 703 that the act of a person taking dangerous drugs out of Hong Kong with him for his own consumption is trafficking in dangerous drugs within the meaning of sections 2 and 4 of the Ordinance.  The Court, of course, recognised that if the drugs were indeed for the defendant’s own consumption, then this factor should be reflected in the sentence. 

7.In our view the point to be emphasised is that the sentencing judge, in a situation such as this, must proceed on the basis that the defendant is charged with the more serious offence of trafficking and not simple possession.  The self consumption of the drugs is only a matter that goes towards mitigation and does not by itself change the nature of the offence.  Similar views were expressed in The Queen v. Chan Mung Lung (CACC 394/1991), R v. Chung Kam Fai [1993] 1 HKC 42 and HKSAR v. Chow Kam Lung [2010] 4 HKLRD 253.

8.We would add that this Court (Stuart-Moore VP, Stock JA and McMahon J) in HKSAR v. Abdallah Anwar Abbas [2009] 2 HKLRD 437 has indentified exporting and importing drugs as the most serious form of trafficking and called for the imposition of an enhanced sentence in respect of large amount of drugs on top of the tariff sentence which is based solely on the quantity.   

What is the proper sentence

9.The next question is to determine the appropriate sentence.  Trafficking in 12.85 grammes of Ice attracts a sentence of at least 7 years’ imprisonment under the guideline set out in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, whereas a sentence of 18 months’ imprisonment is the customary sentence for possession of the drugs for self use.  In addition the sentence for simple possession may be enhanced to take into account the latent risk that the defendant may, apart from his own use, distribute some of the drugs to others as well, see HKSAR v. Wan Sheung Sum [2000] 1 HKLRD 405, HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v. Cheng Man Bor [2008] 1 HKCLRT 368. 

10.In our view since the defendant has committed the offence of trafficking, it is wrong to sentence him on the basis of possession for self use and enhanced the sentence by reason of the fact that he was exporting the drugs.  In this regard we are unable to agree with the approach in Chan Mung Lung where a sentence of 18 months’ imprisonment was imposed by this Court (Silke VP, Power and Penlington JJA) on appeal on a defendant who trafficked in 22.79 grammes of salts of esters of morphine (No. 4 heroin).  The defendant carried the drugs from the Mainland to Hong Kong.  He claimed that the drugs were for his own consumption.  Based on the tariff, a starting point of six years’ imprisonment was adopted by the trial judge who did not make a finding on the defendant’s claim for self use.

11.In Chung Kam Fai, the defendant pleaded guilty to trafficking in 306.67 grammes of salts of esters of morphine.  He imported the goods from Bangkok to Hong Kong. He claimed that the drugs were for his own consumption.  On the basis that the trial judge did not conduct an inquiry before rejecting the defendant’s claim, this Court (Silke VP, Power and Macdougal1 JJA) ordered a discount of two years for personal consumption of the drugs from the original sentence of nine years.

12.In Cheuk Kin Man [2010] 5 HKLRD 561 the defendant pleaded guilty to trafficking 15.77 grammes of heroin hydrochloride.  He claimed two third of the drugs were for self consumption and the rest was for trafficking.  This Court (Tang VP, Kwan JA and Barnes J) held that the starting point of 5 years and 5 months’ imprisonment was appropriate if no part of the drugs were for self consumption.  Given part of the drugs were for self use, the appropriate starting point should be 4 years and 6 months.  This is approximately a 17% discount.

13.In Chow Kam Lung, the defendant pleaded guilty to trafficking in 22.15 grammes of ketamine.  He claimed that he imported the drugs from the Mainland to Hong Kong for his own consumption.  The trial judge used a starting point of 4 years and 6 months’ imprisonment and reduced it by one third by reason of the plea of guilt to arrive at a sentence of 3 years’ imprisonment.  This Court (Hartmann JA and Lunn J) reduced this sentence by 9 months to 2 years and 3 months on the basis that the full amount of the drugs was intended for the defendant’s own consumption.  Hartmann JA held that

‘ 17. On that basis, we are of the view that the 3-year sentence should be reduced by 9 months. This will reflect the strong mitigating factor that the drug was solely for the applicant’s own use while at the same time reflecting the intention of the Legislature that importation of a dangerous drug, whatever the purpose, constitutes the offence of trafficking, an offence of greater culpability than simple possession.’

14.Taking a broad view, a sentence of 2 years and 3 months’ imprisonment after plea in Chow Kam Lung represents a notional starting point of about 40 months’ imprisonment.  This is approximately a 25% discount from the original starting point of 4 years and 6 months’ (54 months’) imprisonment.

15.We are of the view that in the present case, to adjust the starting point downwards by 25% for personal consumption will be a correct and workable approach.  This being the case it is not necessary to address the issue of latent risk because, looking at the matter in the proper perspective, the defendant is sentenced on the basis of trafficking with the strong mitigating factor that the drugs were intended for his own consumption.

16.Bearing in mind that the defendant pleaded guilty and the facts that the drugs were wholly for his self consumption, the appropriate sentence should be 3 years and 6 months’ imprisonment. 

Conclusion

17.Accordingly the application for review is allowed.  The original sentence of 18 months’ imprisonment is set aside and a sentence of 3 years and 6 months’ imprisonment is imposed instead.

Mr. Wesley W. C. Wong, Ag. DDPP and Ms. Samantha Chiu, PP of Department of Justice, for the Applicant

Mr. Oliver Davies, instructed by Messrs Wong & Co., for the Respondent