HKSAR v. Minney, John Edwin

CACC 383/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 383 OF 2010

(ON APPEAL FROM DCCC NO. 208 OF 2010)

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BETWEEN

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Before: Hon Stock VP, Fok JA and Line J in Court

Date of Hearing: 6 April 2011

Date of Judgment: 6 April 2011

Date of Handing Down Reasons for Judgment: 16 June 2011

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons of the Court):

Introduction

1.This was an application for leave to appeal against sentence.  At the conclusion of the hearing, we dismissed the application.  These are our reasons for doing so.

The offences leading to the sentence appealed against

2.The applicant pleaded guilty to two offences of possession of dangerous drugs contrary to s. 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

3.The summary of facts is brief and reads as follows:

“At about 0005 hours on 31st October 2009, a party of police officers entered the Diesel’s Bar (‘the bar’) at Ground Floor, Yung Shue Wan Main Street, Lamma Island, New Territories, Hong Kong. DPC49561 (PW5) stopped [the applicant] inside the bar and demanded to conduct a search on him. [The applicant] immediately took out 2 plastic bags from the right pocket of his trousers and threw them to the floor. PW5 retrieved the 2 plastic bags and found 1 of the plastic bags contained 2 bags inside. All the bags contained suspected cocaine. PW5 therefore declared arrest on [the applicant] and cautioned him orally. [The applicant] then said, ‘that is my self consumption.’ The plastic bags recovered by DW5 were subsequently examined by the Government Chemist, […]. Upon examination, the Government Chemist confirmed that the three plastic bags contained a total of 1.46 grammes of a powder containing 0.85 grammes of cocaine. [16th charge]

2.   [The applicant] was then taken to his residence at the address set out in the 17th charge for a search. Upon search, PW5 found 2 lumps of suspected cannabis inside the drawer of a tea table, 1 plastic bag containing suspected cocaine on top of a CD cabinet and 1 plastic bag containing suspected cocaine inside an amplifier. The suspected dangerous drugs seized from [the applicant’s] residence were sent to the Government Laboratory for analysis. Upon examination, Government Chemist, […] confirmed that they contained collectively 1.05 grammes of cannabis resin, 9.94 grammes of a solid containing 5.51 grammes of cocaine and 0.25 grammes of a powder containing 0.12 grammes of cocaine. [17th charge]

3.   Under caution, [the applicant] admitted that the cocaine and cannabis resin seized from his residence were for his own consumption.”

4.The applicant was one of three defendants charged in DCCC 208 of 2010.  The 16th and 17th charges referred to in the summary of facts quoted above were the two possession offences to which he pleaded guilty.  The defendant was also charged, as the 14th charge on the amended charge sheet, with trafficking in a dangerous drug contrary to s. 4(1)(a) and (3) of Cap. 134 to which he pleaded not guilty. The particulars of that offence alleged that, on 30 October 2009 (i.e. the previous day), the applicant and one of the other two defendants had trafficked in 0.67 g of a powder containing 0.43 g of cocaine.  Upon the prosecutor’s application, this charge was left on the court file.

The reasons for sentence

5.On 12 October 2010, the applicant was sentenced by Deputy District Judge Dufton to concurrent terms of imprisonment of 6 months and 10 months in respect of each offence.

6.The Judge noted that the applicant was found in possession of 6.84 g[1] of cocaine and 1.05 g of cannabis resin and that 6.84 g of cocaine was neither a very small or very large amount of cocaine.  He applied the starting point laid down by this court in HKSAR v Mok Cho-tik[2]  of 12 to 18 months for mere possession of a quantity of drugs which a bona fide user would normally have in his possession.  On this basis, he was satisfied that 6 months imprisonment was appropriate for charge 16 and 12 months for charge 17.

7.The Judge then addressed the question of that which has come to be known as latent risk, considering the cases of HKSAR v Jarhia Kuldeep Singh[3], HKSAR v Chan Wing-chung[4] and HKSAR v Yiu Chan-hung[5].  At paragraph 9 of his reasons for sentence, he said this:

“I refer to these three cases to show each case is very much fact sensitive. I disagree with [counsel for the applicant] that latent risk is absent in this case. The amount found in the bar was 0.85 gramme of cocaine 0.78 contained in two plastic bags and 0.7 contained in a separate plastic bag. The larger quantity of 5.51 grammes of cocaine was found in one plastic bag in the [applicant’s] home together with one other plastic bag containing 0.12 gramme of cocaine. The cocaine being found in a total of five plastic bags, four of which contained small quantities of cocaine together with the fact the defendant had taken three of those bags with him to the bar, there was in my view a risk some of the cocaine may fall into the hands of others. I therefore increase the starting points by 3 months to 9 months and 15 months imprisonment.”

8.Taking into account mitigation and the plea, the Judge imposed concurrent sentences of 6 months and 10 months respectively.

The proposed grounds of appeal

9.The applicant accepts that, without the enhanced element, the prison sentences for the two offences would not be susceptible to challenge.  However, he seeks to appeal against the uplift of 3 months on each sentence referable to the latent risk sentencing principle.

10.The basis of the applicant’s challenge is that the latent risk sentencing principle is unconstitutional since it imputes to a person convicted of a possession offence an unproven predilection or propensity to commit the more serious offence of trafficking contrary to s. 4(1)(a) and (3) of Cap. 134.  This, it is argued, contravenes the presumption of innocence protected in Article 87 of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383.

The latent risk factor in sentencing

11.Prior to 1991, there was a legislative presumption that a defendant in possession of more than a certain quantity of dangerous drugs did so for the purpose of the offence of possession for the purpose of trafficking.  This presumption was held to be inconsistent with Article 11(1) of the Hong Kong Bill of Rights and so was held to be repealed as from 8 June 1991.[6]

12.In the light of this, Cap. 134 was amended in 1994.  The offence of possession of dangerous drugs for the purpose of trafficking was repealed and the definition of trafficking was amended to include possession of dangerous drugs for the purpose of trafficking.  The maximum penalty for possession simpliciter was raised substantially, from 3 years’ imprisonment to 7.

13.In the context of narcotic offences, the phrase “latent risk” first made its appearance in the aftermath of those legislative changes.  To the emergence of that phrase in the cases we will shortly return. But before doing so there are two points that should be made:

(1)  The word “latent” is misleading, for a consideration of the cases and the rationale for treating the relevant risk as an aggravating factor shows that what is of justifiable societal concern is actual risk disclosed by the facts of the case; in other words, actual risk of dissemination; and

(2)  The cases to which we shall be referring do not create some new sentencing principle.  Sentencing is called an art precisely because the sentencer must adapt the sentence to the circumstances of the offence and the courts of this and other jurisdictions have for long been enjoined in their sentencing function to reflect and deter societal dangers posed by crimes committed in varying circumstances.

14.So, for example, the person who carries an unlicensed firearm with him in a public place will receive a much heavier sentence than the person who keeps such a firearm locked up safely in a bank vault.  There are a number of reasons for that.  One recognised reason is that it may lead to a shoot out as a result of alarm caused by the unexpected arrival of police officers who happen upon the scene: alarm either to the accused or to the police.  There exists therefore strong reason for the courts to discourage the carrying of firearms in public even though the possessor had no intention when he took the unlicensed firearm with him to use it.  Similarly, if a person leaves a firearm lying around where others may take it, the risk created will be reflected in the sentence even though when he acquired the weapon or left it lying about, the weapon owner had no intent to supply it to anyone else.  What constitutes an aggravating feature for an offence will vary according to the category of offence, the particular dangers from which the courts must protect the public and what deterrent signals, if any, are required.

15.The latent risk factor in the context of narcotic offences was applied in R v Chiu Hung-wong & Anor. [1994] 1 HKCLR 184 as explained by Silke V-P at §§22-25 (pp. 189-190):

“22. In R. v. Sin Yau Ming [1992] 1 HKLR 127 this court struck down certain of the presumptions then contained in sections 46(c), 46(d) (v), 47(1) (a) and 47(1) (d) of the Ordinance as being contrary to the Hong Kong Bill of Rights Ordinance, Cap. 383. Part of the effect of that was that the Crown could no longer rely on possession of more than 0.5 of a gramme of narcotic or more than five packets containing the narcotic as raising a presumption in its favour.

23. The amending legislation – neither the draftsman nor the legislature taking the broad hint, contained at p.144, L44 of Sin Yau Ming, as to two grammes being the trigger point in Singapore which, on the evidence in Lau Tak Ming, was greatly in excess of the daily dose of the normal addict in Hong Kong – did not seek to re-align the presumption point but instead abolished the section 7 offence of possession for the purpose of unlawful trafficking – thus taking note of what was said in Lau Tak Ming – amended the definition of trafficking by adding after the words ‘the dangerous drug’ the phrase ‘or possessing the dangerous drug for the purpose of trafficking’ and, as indicated, vastly increased the sentence for simple possession.

24. It is the duty of the courts to loyally carry out the laws as enacted by the legislature. It is for the consideration of this court to endeavour to give guidance on how this changed situation should be effected by the courts of the territory.

25. Having considered the rationale of the old sentencing policy and finding that it no longer applied Judge Lugar-Mawson went on:

‘That is not to say however that a Judge should close his eyes to the obvious dangers and temptations that the possession of a large quantity of drugs in the hands of an addict may present both to himself and society. It is known and I would be ignoring over 12 years experience in criminal practice in Hong Kong if I ignored it, that addicts are persons who are easily tempted and who do sell their stock of dangerous drugs to others in order to fund not only their own addiction, but also their daily living expenses. If their stock is small the risk of sale is slight, if it is large the risk is greater. Formerly the law recognised this regrettable feature of human behaviour by providing an evidential presumption based on weight or packaging that went to determine the offender’s guilt. Such a presumption, going as it did to establish guilt, was unsustainable under the Bill of Rights Ordinance. That is not to say however that the Judge when it comes to sentencing, where the question of guilt or innocence have been disposed of, should not have regard to this feature and recognise the potential harm to society that possession of large quantities of dangerous drugs poses and take the weight of the dangerous drugs possessed by the offender into account when determining the length of his sentence.’

That, although no evidence was led in the trial court or presented to us indicating an increase in possession offences, is a rationale which we would accept as being proper. Provided that, when the Crown, as it did here, charges only a section 8 offence the sentencing court bears in mind that there is still no offence known to law as ‘unproven trafficking’, courts can, in our judgment, properly give effect to the intentions of the legislature by imposing sentences higher than the norm which pertained before 26th June 1992 and which take into account the quantity of the drug concerned.”

16.The Court of Appeal endorsed the Judge’s approach to sentencing in that case, holding (at §31):

“The latent risk of danger to the public was substantial. But that having been said the applicant should not be sentenced as if the charge had been brought under section 4. We do not consider the trial judge to have fallen into that error.”

17.The principle was again endorsed in HKSAR v Wan Sheung-sum [2000] 1 HKLRD 405, where (at p. 407) the Court of Appeal suggested a three-step approach to sentencing for an offender who is a bona fide user and is convicted of simple possession of a dangerous drug.  These three steps were summarised thus:

“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.”

18.The latent risk factor was addressed at p. 409:

“The second step involves the latent risk factor. It is apparent from all the circumstances that the risk was not a great one. The Applicant was a heroin addict. He had no record for any offence of drug trafficking. He was employed and, on the evidence, it appears that he kept the drugs in his premises without other people knowing that he was doing so. We consider that the latent risk factor should not have attracted an additional sentence of more than six months.”

19.Two further cases may be referred to in this context.  The first is R v Wu Yau-man [1996] 4 HKC 255.  In that case, the Court of Appeal allowed an appeal against sentence for possession on the grounds that a DATC order was more suitable for the defendant.  However, the Court of Appeal commented that, had the case merited a deterrent sentence of imprisonment, the facts of the case would otherwise have justified an enhancement to the sentence to reflect the latent risk of some of the drugs finding their way into the hands of the public.  At p. 257F-H, Nazareth VP held:

“It is clear from the two cases referred to by the judge in his reasons for sentence, that a latent risk of some of the drug finding its way into the hands of the public is a relevant matter that may be taken into consideration. The risk is to be assessed by reference to circumstances such as the nature of the packaging and the amount. Here, there were no less than 35 packets representing 35 days consumption on the appellant’s own statement. In the circumstances, and notwithstanding the appellant’s early statement that the drugs were for his own consumption, the judge was, in our view, clearly right in concluding that there was a latent risk of some of the drugs finding their way to the hands of the public. Likewise, we accept that the sentence must reflect this.”

20.Secondly, in HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal held that the Judge’s starting point in that case of 2 years’ imprisonment for possession was too high and substituted a starting point of 18 months’ imprisonment but upheld the Judge’s enhancement of 12 months to reflect the latent risk.  In respect of the latent risk factor, Stock JA (as he then was) said (at p. 267):

“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. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

The applicant’s submissions

21.Mr Philip Dykes SC, leading counsel for the applicant[7], submitted that the risk factor was objectionable because it imputed an intention, albeit conditional, on the part of the defendant to traffic in drugs.  Since, in the case of a prosecution for simple possession, the elements of the offence of trafficking would not have been established beyond reasonable doubt, the enhancement of the sentence on the basis of this imputed intention offended against the presumption of innocence.

22.Similarly, he submitted that the attribution of a predilection to trafficking, falling short of an intention to do so, in order to enhance a sentence for possession was equally impermissible because a defendant should not be convicted or sentenced on the basis of a predilection to commit an offence.

23.Mr Dykes identified a list of factors that might be relied upon by the prosecution to establish an intention to traffic.  These factors were: possession of a quantity of drugs inconsistent with personal use; possession of uncut or extremely pure drugs; possession of a variety of drugs; evidence that the drugs have been prepared for sale; possession of drug-related equipment consistent with preparation for sale; documentation in the form of diaries listing names and telephone numbers of customers; and possession of large amounts of cash.  Similar evidential aids to prove trafficking were listed by the Court of Appeal in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 at p. 79C-G.

24.In a trafficking case, the prosecution will seek to establish these factors and the defendant will have the opportunity to contest the issue of his intention in possessing the drugs.  If that issue is resolved in favour of the defendant, the Judge should not be allowed to rely on those factors to enhance the sentence for simple possession.  This restriction should similarly apply where the prosecution accepts a plea of simple possession to the trafficking charge.

25.Ascribing to the defendant an intention to traffic drugs, when he has been convicted only of simple possession is, it was submitted, contrary to the principle applied consistently by the European Court of Human Rights as set out in Böhmer v Germany (2004) 28 EHRR 19 p. 410 at §§53-55:

“53.  The Court reiterates in the first place that the presumption of innocence enshrined in para.2 of Art.6 is one of the elements of a fair trial that is required by para.1. Consequently, the applicant’s complaint will be examined under the two provisions taken together.

54.  The presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty.

55.  Once an accused has properly been proved guilty of a particular criminal offence, Art.6(2) can have no application in relation to allegations made about an accused’s personality as part of the sentencing process, unless they are of such a nature and degree as to amount to the bringing of a new charge within the autonomous meaning of the Convention.”

26.Mr Dykes also referred to s. 56A of Cap. 134 under which a court may, if satisfied beyond reasonable doubt that information furnished proves that the commission of a relevant specified offence (including possession under s. 8) involved a minor may impose a more severe sentence that it would otherwise have done.  This showed, he submitted, that where the Legislature intended to permit an enhancement of sentence, the aggravating facts and circumstances would be expressly set out.  Furthermore, proof of those facts and circumstances was required to the criminal standard of proof.

Discussion

27.It was not disputed, on behalf of the applicant, that a court is entitled to impose a heavier sentence for the offence of possession of a dangerous drug where aggravating factors are present.  In the Skeleton Argument for the applicant, the following paragraphs accept this uncontroversial proposition:

“28.  Subject only to the statutory restrictions in the Drug Addiction Treatment Centres Ordinance, Cap.224 on how persons convicted of possession offences should be dealt with, it is accepted that the court can differentiate between persons convicted of that offence on the basis of the amount of drugs possessed and the circumstances of possession.

29.  A person who possesses a quantity of drugs far in excess of that normally required by a consumer might be expected to warrant a heavier sentence than a person convicted of the same offence holding just a modest amount of drugs consistent with ordinary consumption on the basis that the former’s buying habits generate more profits for the manufacturer and more drugs on the street.  Similarly, a person convicted of a possession offence sharing accommodation with third parties might expect a heavier sentence than the solitary consumer on the basis that exposure to drugs consumption encourages consumption.  A sentencing differential on this basis does not impeach the credentials of the convicted person as ‘bona fide’ [user] – someone who consumes but does not deal.”

28.This is an important concession on the part of the applicant but one which is undoubtedly rightly made.  In our opinion, there can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s.  That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but simply reflects the fact that the quantity and circumstances of their possession are such as to pose a risk to society.

29.What the established risk will be is something that will vary from case to case and it is not possible to predict all circumstances.  They will include leaving drugs in a place, for example a shared flat, where others have access to them; taking, as in the present case, a number of packets to a pub where friends may prevail upon the possessor to share what he has; and buying in such a quantity as to create a temptation to sell in order to fund the next purchase.  It is the real risk of dissemination of drugs which the courts are looking to deter by this sentencing policy and we see nothing objectionable or contrary to policy or to the presumption of innocence in a sentencing policy that seeks to protect the public against a real risk to which the circumstances of an offence gives rise.  It is not a question of punishing a person for a crime he has not committed.  It is not a question of punishing him for a crime he may commit.  It is a question of punishing him for the crime which he has committed taking into account the circumstances of its commission and the dangers to society which those circumstances create.

30.As the cases referred to above make clear, it is “the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s.  The 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” (per Stuart Moore VP in Wan Sheung Sum).

31.That said, a few reminders are in order:

(1)  if a judge is minded to enhance sentence on the basis of risk of dissemination, he must forewarn counsel for the accused, to enable the accused to challenge the issue, if necessary by the giving of evidence;

(2)  a judge is not to sentence for unproved trafficking, namely an unproved actual intention to traffic.

32.So long as a sentencing court is focusing on the potential danger or harm to the community by looking to the risk of the drugs finding their way into the hands of others as the relevant aggravating factor in enhancing a sentence for possession simpliciter, we do not think there is any infringement of the presumption of innocence.  The defendant will have been convicted, either on his own plea or after trial, of possession of the relevant quantity of drugs in particular circumstances that may give rise to the risk in question.  As Stock JA held in Mok Cho Tik, the degrees of enhancement for the risk factor must bend to the circumstances of each case and the existence of the risk factor and the degree of risk is not a matter of mathematics upon which the court can provide a tariff.

33.Consideration of the possession of a quantity of dangerous drugs will involve consideration of the risk of some of those drugs finding their way into circulation, although a greater quantity in one man’s hands may reflect less risk than a smaller quantity in the hands of another.  Consideration of the risk in question does not amount, in our opinion, to a finding that the applicant had the necessary intention to make him guilty of trafficking in the dangerous drugs.  If it did, we would accept that this would be impermissible.  That view has been accepted and endorsed by this court on at least two previous occasions.

34.The first was Chiu Hung-wong in which Silke VP reminded sentencing courts that, where a charge of possession under s. 8 is laid, that is the offence which is to be penalised and not the unknown offence of ‘unproven trafficking’ (i.e. a presumed present intent to traffic).

35.Secondly, in R v Lee Siu Lung [1995] 1 HKC 39, the Court of Appeal allowed an appeal against sentence where the Judge had taken into account the risk factor but had proceeded to sentence on the basis of his view that some of the drugs in the defendant’s possession when he was arrested were for his personal consumption and some for another purpose, so that there was “a danger of him being tempted to traffic” (see p. 40E).  At p. 40F-I, Power VP said this:

“The applicant was sentenced to two years on the first charge and to nine months on the second charge, and the sentences were ordered to be concurrent. The judge took two years and six months as the overall starting point which he reduced, because of the plea, to two years. While the judge was entitled to consider the ‘latent risk factor’ he was not entitled, prior to so doing, to take the view that at the time of apprehension the applicant had some of the drugs in his possession for personal consumption and some for another purpose, i.e. some form of trafficking. The judge’s use of the words: ‘I have no doubt that is true for some of the drugs seized.’ seems to indicate that this is what he did. Simple possession had been charged and the mitigation had been conducted upon that basis. The judge was required to sentence upon that basis. It is one thing for a judge, when sentencing, to say that he accepts that the accused had drugs in his possession for his own consumption but takes into account the damage to the community posed by the possession of that quantity of drugs in the unstable hands of an addict, even one who intends them for his own consumption. It is quite another for a judge to say that he does not accept that the accused had possession of all of the drugs for his own consumption and to sentence him upon that basis. The latter approach would only be permissible upon a plea to a charge of trafficking.”

36.The prohibited approach referred to in the above two cases would, we accept, amount to sentencing for a different offence at the sentencing stage and this would be contrary to the presumption of innocence guaranteed by Article 11(1) of the Hong Kong Bill of Rights: see Phillips v UK (Application No. 41087/98), 12 December 2001, at §35.

37.It is said that if there is to be any real risk of the dangerous drugs entering into circulation then, putting aside the fanciful, it will involve conduct by the applicant that would amount to trafficking.  We disagree.  There is a distinction to be made between sentencing on the basis that trafficking was the intent or purpose of the defendant’s possession of the drugs and sentencing on the basis that his possession in the circumstances produced a risk of those drugs finding their way into the hands of others.  The former would not be permissible, but the latter is.  Sentencing rightly enjoys the flexibility to meet the differing degrees of potential abuse to which the possession may give rise, whether it be for mitigation or aggravation.

38.The question to be decided when determining guilt for trafficking in whether the defendant intended, at the precise time at which possession is established, to traffic in the drugs possessed.  That is not what a sentencing court presumes when enhancing a sentence on the basis of risk.  On the contrary, it accepts that the defendant does not intend to traffic those drugs at that time but, rather, proceeds on the basis that the quantity or other circumstances give rise to the real risk of others gaining access to those drugs.

39.It is therefore material to note, in this context, that the tariff for trafficking the quantity of dangerous drugs of which the applicant was convicted of possession would be somewhere in the range of two to five years.  On any view, the enhancement of 3 months applied by the Judge in this case brings the sentence imposed nowhere near that which would have been called for if the applicant had in fact been convicted of trafficking under s. 4(1)(a) and (3) of Cap. 134.

40.The concession on the part of the applicant referred to above (in §25) also provides the answer to Mr Dykes’ reliance on s. 56A of Cap. 134.  The fact that there is a specific statutory recognition of a more severe sentence for drug offences involving minors does not support the conclusion that a sentencing court cannot take into account other aggravating factors in sentencing for the offence of possession.

41.Did the Judge in the present case adopt the approach which this court has previously identified as unacceptable or did he merely reflect the risk of the dangerous drugs in the applicant’s possession falling into the hands of others?  We have set out §9 of the Reasons for Sentence above.  It is clear, in our opinion, that the Judge did not assume a present intention on the part of the applicant to traffic in the drugs in question or to proceed to sentence him otherwise than on the basis of his possession for his own consumption.  He did, however, reasonably reach the view that there was “a risk some of the cocaine may fall into the hands of others” on the basis of which he increased the starting points of the sentences by 3 months.  No imputation or attribution of an intention to traffic on the part of the applicant was involved in his reasoning.

42.We therefore agree with the submission of Mr Kevin Zervos SC, the Director of Public Prosecutions[8], that the question in the present case is not one of ascribing an intention to traffic to the applicant but rather of applying an enhancement to the basic starting point by looking at the circumstances of the offence and the danger which is created.  As Mr Zervos submitted, the circumstances in the present case included: the fact the applicant was found in possession of the drugs in a bar, the drugs were in three plastic bags; he had a larger quantity of drugs at his home; the drugs there were in two plastic bags; there were two types of drugs at his home and he was not drug dependent.

43.The sentences imposed by the Judge were, in our opinion, appropriate in the circumstances.

Mr Philip Dykes SC and Mr Giles Surman, instructed by Messrs Vidler & Co., assigned by Director of Legal Aid, for the Applicant

Mr Kevin P Zervos SC, DPP and Ms Wong Sze-lai Lily, of the Department of Justice, for the Respondent

[1] The reference to 6.84g in the Reasons for Sentence (§4) would appear to be a typographical error since the total amount of cocaine referred to in the agreed summary of facts is 6.48g (i.e. 0.85g + 5.51g + 0.12g).

[2] [2001] 1 HKC 261 at 267.

[3] CACC 96/2006.

[4] CACC 248/2009.

[5] CACC 462/2009.

[6] See R v. Sin Yau Ming [1992] 1 HKCLR 127.

[7] Appearing with Mr Giles Surman.

[8] Appearing with Ms Lily Wong Sze-lai.

(I) Please refer to FAMC60/2011 for the relevant appeal(s) to the Court of Final Appeal. (II) Please refer to FACC2/2012 for the relevant appeal(s) to the Court of Final Appeal.

(I) Please refer to FAMC60/2011 for the relevant appeal(s) to the Court of Final Appeal. (II) Please refer to FACC2/2012 for the relevant appeal(s) to the Court of Final Appeal.