HKSAR v. Ho Wing To and Another

CACC 264/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2010

(On Appeal From High Court Criminal Case No. 222 of 2009)

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BETWEEN

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Before : Hon Stock VP, Cheung JA and Macrae J in Court

Date of Hearing : 14 July 2011

Date of Judgment : 28 July 2011

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.This judgment is concerned with the 2^nd applicant’s application for leave to appeal against sentence. This Court has adjourned the application of the 1^st applicant for leave to appeal against his conviction for trafficking in dangerous drugs for further argument.

2.The 2^nd applicant pleaded guilty to the charge of ‘tenant permitting premises to be used for the unlawful storage of dangerous drugs’, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance (Cap. 134).  Verina Bokhary J sentenced her to a term of imprisonment of two years and eight months. 

Facts

3.The 2^nd applicant was the tenant of a flat in Yat Tung Estate.  She resided there with her two sons who were then aged 11 and 8.  The flat was approximately 250 sq. ft in size with two bedrooms.  The 2^nd applicant occupied the master bedroom and her sons occupied the other bedroom on a bunk bed. 

4.The 1^st applicant is a 16-year-old youth.  He had family problems in that he had a row with his father and was chopped by his father.  As a result he could no longer stay at his own home.  Shortly before Chinese New Year in 2009 the 1^st applicant’s mother asked the 2^nd applicant if she could allow the 1^st applicant to stay at her flat.  The 2^nd applicant agreed.  The 1^st applicant then moved into her flat and slept on the sofa in the living room.  At the beginning nothing eventful happened, but after a while the 1^st applicant brought drugs to the flat.  When the 2^nd applicant discovered this she confronted the 1^st applicant who told her that the drugs would only be placed there for a while and would be taken away soon.  She told the 1^st applicant to take the drugs away as soon as possible.  Initially the 1^st applicant put the drugs in the living room but as the 2^nd applicant was afraid that her two children might tamper with them she asked the 1^st applicant to put the drugs in her bedroom instead.

5.On 10 March 2009 the Police entered the flat with a search warrant.  The Police had shortly before they entered the flat intercepted the 1^st applicant in a shopping centre nearby and the 1^st applicant took them back to the flat.  When the Police began to question the 2^nd applicant, the 1^st applicant told them that there was no need to search, the ‘stuff’ was in the room and he would bring them to get it.  The 1^st applicant then led the Police to the master bedroom where the Police found packets of dangerous drugs inside a transparent plastic box on top of a 3-drawer cabinet.  Upon analysis they were 34.33 grammes of methamphetamine hydrochloride, 17.12 grammes of ketamine in powder form, 253 tablets containing 29.80 grammes of ketamine and some small quantities of cannabis.  The price for the ketamine powder and methamphetamine was HK$26,492.  There was no estimated price available for the ketamine in tablet form.  Upon caution, the 1^st applicant further said that he was asked by a friend to put the stuff inside the plastic box.

6.The Police also found a plastic container in the master bedroom which contained 3 white plastic gloves and a set of 152 re-sealable transparent plastic bags.  In the living room the Police found a shopping bag containing 50 transparent plastic gloves, 800 re-sealable plastic bags and a plastic straw. 

7.The applicants were charged with the respective offences.

The decision

8.The 1^st applicant who was convicted of the offence of trafficking in dangerous drugs was sentenced to eight years’ imprisonment.  In respect of the 2^nd applicant, the Judge adopted a starting point of 4 years’ imprisonment, reduced it by one third because of the plea of guilty and arrived at the sentence of two years and eight months’ imprisonment.  This is what she said when sentencing the 2^nd applicant :

‘ I have taken into consideration everything urged on your behalf. You have a previous conviction, but that was a long time ago, namely in 1995, and was for a different type of offence, namely theft. As emerged from the background report, your personal circumstances have always been and are very difficult and worthy of sympathy. There are various circumstances in which this offence can be committed, some more serious than others. Personal circumstances of the offender can shed some light on the circumstances of the offence on questions like whether the offence was committed in a calculating way or in a weak and stupid way. So I will bear your personal circumstances in mind, to your advantage, in assessing the circumstances of the offence. That is relevant to the sentencing starting point to be selected.

Of course persons who commit the offence of which you stand convicted on your own plea are acting in a way which assists those in the drug trade, which is a great evil that does terrible harm. So the offence to which you have pleaded guilty is a serious one even when not committed for payment. All things considered, I adopt a sentencing starting point of 4 years. The only real mitigation available to you is your guilty plea. For that, you will receive a discount of one-third.

I therefore sentence you to 2 years and 8 months’ imprisonment.’

9.In respect of the previous conviction referred to by the Judge, it was an offence of theft committed in 1995 for which the 2^nd applicant was sentenced to 12 months’ probation.  In respect of her personal circumstances, the 2^nd applicant was raised by a single parent mother.  She married young against her wishes.  But the marriage ended up in divorce.  She has three children, a daughter who has been taken care of by her maiden family and two sons.  She was given public housing after her divorce. 

Range of sentence

10.The present offence carries a maximum sentence of 15 years’ imprisonment upon conviction on indictment. 

11.It is pointed out by this Court (Power Ag CJHC, Mortimer and Mayo JJA) in R. v. Lee Kwok Keung, CACC 595/1996 that the offence is one which varies greatly in its gravity and it is not an offence for which this Court could ever lay down any useful guidelines. However, the extent of knowledge and involvement of an accused person together with the amount of financial benefit, if any, are important considerations.  In that case the drugs found in a flat were 310.52 grammes of ‘Ice’.  According to the tariff, trafficking in that quantity would attract a sentence after trial of some 14 years’ imprisonment which after plea would be reduced to 9 years’ imprisonment.  The applicant pleaded guilty to the charge.  The Judge used a starting point of 9 years’ imprisonment and reduced it to 6 years because of the plea.  This Court affirmed the decision.

12.In HKSAR v. Lam Lai Chu Patsy (CACC 56/2003) the applicant rented a flat for someone who used it as a drug divan in order to earn a reward of HK$1,000.  Her job was to open the door of the premises to customers who came to consume ‘white powder’. She was paid HK$400 per day.  When the Police searched the flat, there were eleven men and three women and a large amount of drugs taking paraphernalia was discovered. This Court (Hon Stuart-Moore, Ag CJHC and Woo JA) for the offence of ‘being the tenant permitting premises to be used as a divan’, adopted a starting point of 21 months’ imprisonment, reduced it by 25 percent because of the late plea of guilty and arrived at a sentence of 15 months’ imprisonment.  The Court was referred to a number of cases which were concerned with keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance. The penalty for the section 35 offence carries the same penalty as the section 37 offence.  This Court said that ‘for practical purpose that offence is more or less on an equal footing with the charge we are presently considering’.  The starting point in the ‘keeping a divan’ cases ranged from two years to one year’s imprisonment. 

13.In HKSAR v. Cheung Yiu Fai Alex (CACC 173/2005), the applicant was charged with three offences, one of which was keeping a divan.  The trial Judge adopted a starting point of two years’ imprisonment, reducing it to 16 months’ imprisonment on account of his plea of guilty.  This Court did not disturb the starting point but only adjusted the overlapping of the sentences. 

The present case

14.Each case turns on its own facts.  There are certain factors relevant to this case to which the Judge has made no specific reference which we think are important. First, the length of time during which, to the 2^nd applicant’s knowledge, the drugs were in the flat.  Second, the 2^nd applicant’s insistence that the drugs be removed.  In the light of those factors, we consider that a more appropriate starting point for this case is 3 years’ imprisonment.

15.Mr. H Y Wong, counsel for the 2^nd applicant, submitted that she only discovered the drugs shortly before the Police raid.  He referred to the video recorded interview of the 1^st applicant when he said that he placed the drugs in the flat about a week or a bit more than one week before his arrest.  We have to say that it is not very clear on the summary of facts as to when the 2^nd applicant became aware of the existence of the drugs.  While in one part of the summary of her cautioned statement referred to in the summary of facts it was stated that the 1^st applicant lived in the flat for almost two months and it was only about a month ago that he started taking drugs back to the flat and hiding them there, there were also other parts of her cautioned statement which were unclear as to when she actually discovered the 1^st applicant was bringing drugs to her home :

‘vii. The dangerous drugs found in her bedroom had been placed there by HO (i.e. the 1^st applicant) about 2 weeks ago. She had initially told HO not to place the stuff at the living room as she was afraid that her 2 children might tamper with it. So she asked HO to place the stuff in her bedroom instead.

viii. She only became aware of the stuff about a week after HO had put it in the Premises. She had sensed something wrong and thus sent text messages to HO via mobile phone telling him not to lie to her. HO then frankly told her that the stuff would only be placed there for a while and would be taken away soon.’

16.The respondent conceded that it is not clear from the summary how long before the Police search the 2^nd applicant first became aware of the drugs.  This being the position, the benefit should be given to the 2^nd applicant and the Court has to proceed on the basis that she only discovered the drugs shortly before the Police raid.

17.This is not a case where the 2^nd applicant actively allowed another person to store drugs in her flat for a reward for a substantial period of time.  The summary of facts showed that she had confronted the 1^st applicant and told him to remove the drugs and this was also confirmed by the 1^st applicant in his video recorded interview.  Considering the circumstances in which the 1^st applicant came to stay in her flat, we agree with Mr. Wong’s submission that it would be difficult for the 2^nd applicant to take a drastic step to tell the 1^st applicant to move out or report the matter to the Police. 

18.Although the 1^st applicant had sometimes helped her to pay the bills, one must bear in mind that he was a lodger there and his mother had provided him with money for food.  Although the 2^nd applicant had kept the keys to the flat and to the master bedroom to herself we do not consider that this is a relevant factor in the sentence as submitted by Mr. Edmond Lee, counsel for the respondent.  After all the 2^nd applicant was the tenant of the flat.  While the control of the keys may show that she was in possession of the drugs she was not charged with the trafficking of the drugs.

19.While she had seen the 1^st applicant handle the drugs in a way which may indicate that he was involved in trafficking drugs, we are of the view that in the circumstances of this case, this is not an additional aggravating factor which may justify a higher sentence.

Conclusion

20.Accordingly, we will allow the application and treat the application as the appeal proper. We will allow the appeal, set aside the sentence of two years and eight months’ imprisonment.  We will adopt a starting point of three years’ imprisonment, reduce it by one third because of the guilty plea and sentence the 2^nd applicant to two years’ imprisonment.    

Mr. Edmond Lee, SPP of Department of Justice, for the Respondent

Mr. Thomas Iu and Mr. Raymond Chau, instructed by Messrs Cham & Co., for the 1^st Applicant

Mr. H Y Wong, instructed by Messrs Jal. N. Karbhari & Co., assigned by Director of Legal Aid, for the 2^nd Applicant