HKSAR v. Chow Chun Sang

[English Translation - 英譯本]
CACC 135/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 135 OF 2011

(ON APPEAL FROM DCCC 1285 OF 2010)

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Before: Hon Yeung VP, Kwan JA and Chu JA in Court

Date of Hearing: 3 November 2011

Date of Judgment: 10 November 2011

JUDGMENT

Hon Yeung VP (giving the judgment of the Court):

Factual Background

1.On 14 September 2010, the Appellant (Chow Chun Sang), upon being stopped and searched by the police at the junction of On Ning Road and Ping Wui Street in Yuen Long, threw a plastic bag containing an apparatus for smoking “ice” to the ground and fled.  When the police gave chase to him, he put up a struggle, during which he scratched a Sergeant and kicked the Sergeant on his leg(s) twice.   But he was subdued and arrested in the end.

2.At the police station, the police found on the person of the Appellant another plastic bag, containing 7.22 grammes of “ice” and 0.08 grammes of nimetazepam in the form of 15 tablets.

3.The Appellant faced four charges, namely trafficking in 7.22 grammes of “ice” (the first charge), possession of 15 tablets containing 0.08 grammes of nimetazepam (the second charge), assaulting a police officer in execution of duty (the third charge), and possession of apparatus for smoking a dangerous drug (the fourth charge).

4.The Appellant pleaded guilty to all charges, for which he was sentenced to a total of 3 years and 10 months’ imprisonment.    For the above four charges, the Judge sentenced the Appellant to imprisonment for 3 years and 6 months, 2 months, 2 months and 3 months respectively. The sentences on the first and the fourth charges were ordered to run concurrently and the sentences on the second and the third charges consecutively, making a total sentence of 3 years and 10 months.  Taking into account the fact that the Appellant was already sentenced to a total of 12 months’ imprisonment for separate offences of theft (TMCC 3082/2010) and possession of a dangerous drug (TMCC 4344/2009), the Judge ordered the sentence of 12 months to run consecutively to the aforesaid sentence of 3 years and 10 months.  The total term of imprisonment the Appellant had to serve was therefore 4 years and 10 months.  Having been granted leave by a single judge of this Court, the Appellant now appeals against sentence.

The Appellant’s Background and Mitigation

5. The Appellant, aged 36, was born in Mainland China.  He settled in Hong Kong in the 1980’s.  He has 15 previous convictions, of which seven are for possession of a dangerous drug, one for possession of apparatus for smoking a dangerous drug, and two for common assault.

6.At first instance, Counsel for the Appellant emphasized that the Appellant did not have a conviction record for drug trafficking and that more than half of the “ice” involved was for the Appellant’s own consumption.  Counsel also submitted that the Appellant assaulted the police for the sole purpose of fleeing and that the Sergeant sustained only minor injuries.  A letter of mitigation written by the Appellant’s aged and infirm mother was placed before the Judge.

The Judge’s Reasons for Sentence

7.The Judge emphasized the gravity of the offence of trafficking in dangerous drugs and pointed out that, according to the sentencing guidelines laid down by the Court of Appeal, the starting point for trafficking in up to 10 grammes of “ice” was 3 to 7 years’ imprisonment.  The Judge accepted that more than half of the “ice” involved was for the Appellant’s own consumption, but did not consider this a very strong mitigating factor as possession of “ice” was also an offence per se.  The Judge considered the appropriate starting point for 7.22 grammes of “ice” was imprisonment for 5 years and 10 months.

8.However, taking into account that over half of the drug was for the Appellant’s own consumption, the Judge adopted 5 years and 3 months as the starting point. The Judge then reduced the sentence by one-third to 3 years and 6 months on account of the Appellant’s guilty plea.  The Judge further sentenced the Appellant to imprisonment for 2 to 3 months in respect of the remaining charges and, in the end, arrived at a total sentence of 3 years and 10 months. 

9.The records show that the Appellant committed the offences in TMCC 4344/2009 (namely, possession of “ice” and possession of apparatus for smoking “ice”) on 7September 2009.   The case was set down for trial on 13 January 2010.   The Appellant was absent for the trial and a warrant of arrest was issued against him. On 3 September 2010, the Appellant committed the offence in TMCC 3082/2010 (namely, theft). On 14 September 2010, the Appellant was arrested for the present case and was brought before the court on the following day.  Upon pleading guilty to all the charges in TMCC 4344/2009 and TMCC 3082/2010, the Appellant was sentenced to a total of 12 months’ imprisonment.

10.The Appellant committed the offence in TMCC 3082/2010 and those in the present case when he was wanted.  On 22 March 2011, having pleaded guilty to the four charges in the present case, the Appellant was sentenced to a total of 3 years and 10 months’ imprisonment.  The Judge ordered the sentence of 3 years and 10 months to run consecutively to the aforesaid sentence of 12 months.

Ground of Appeal

11.Mr. David Ma, Counsel for the Appellant, put forward only one ground of appeal. Mr. Ma agreed that the starting point of 5 years and 10 months adopted by the Judge for the offence of trafficking in “ice” was appropriate.  However, Mr. Ma submitted that the 7-month discount to sentence (which translated to a discount of approximately 10%) given by the Judge on account of personal consumption of the “ice” by the Appellant was inadequate, and this rendered the sentence of 3 years and 6 months manifestly excessive.  Mr. Ma cited SJ v Chan Chun Fai [2011] 3 HKLRD 116 to support his argument and submitted that the appropriate discount should be in the region of 15 %.

Discussion

12.Trafficking in “ice” is a serious offence, and the Court of Appeal has laid down clear sentencing guidelines with a view to deterring potential offenders.  In AG v Ching Kwok-hung [1991] 2 HKLR 125, the Court of Appeal pointed out that “ice” was a drug more deleterious to the human body than was heroin, and fixed a starting point of 3 to 7 years’ imprisonment for trafficking in 10 grammes of “ice”.  The Court of Appeal further pointed out a number of sentencing considerations apart from the quantity of the drugs involved, such as whether the defendant pleaded guilty, whether the defendant had cooperated with and rendered assistance to the police, whether the defendant testified against other drug traffickers in respect of the drug involved or other drugs, whether the defendant had a clear record, and any matters personal to the defendant (at 130H-I).

13.Even though the Appellant does not have a previous conviction for drug trafficking, he does have an extensive criminal record, a major part of which comprises drug-related offences that he has repeatedly committed. Therefore, he cannot rely on a clear record as a mitigating factor.  Nor can he rely on his family predicaments, including the need to take care of his senile mother, as a mitigating factor. In light of the quantity of the drug the Appellant trafficked in, i.e. 7.22 grammes of “ice”, and the background of the Appellant, the starting point of 5 years and 10 months was clearly appropriate, and indeed Mr. Ma did not take issue with that.  The Judge, however, accepted the Appellant’s contention that over half of the 7.22 grammes of “ice” he trafficked in was for his own consumption, and proceeded to sentence him on that basis.

14.In drug trafficking cases, the fact that all or part of the drug involved is for the defendant’s self-consumption is recognized as a mitigating factor (see, for example, R v Chan Mung-lung [1992] 2 HKCLR 127 and R v Chung Kam Fai [1993] HKC 42).

15.In R v Meah & Marlow (1991) 92 Cr App R 254, a case concerning drug trafficking by way of importation of drugs, Jupp J also made the following observations (at 256):

“Importing is a distinct offence from possessing. The penalties are different and in our view it is not right to say that this must be treated simply as a case of possession. Nevertheless there must be a considerable reduction in sentence to reflect the fact that the drugs were for the appellant’s own consumption.”

16.In the case of Chung Kam Fai cited above,the defendant brought 306.67 grammes of heroin from Bangkok, Thailand into Hong Kong and contended that the drug was wholly for his own consumption.  The Court of Appeal took the view that, in the absence of a ruling by the trial judge on such contention, sentencing should be approached in a way most favourable to the defendant.  The Court of Appeal adopted a starting point of 16 years, and further to a reduction in sentence to 9 years on account of the defendant’s guilty plea and assistance to the authorities, the Court gave the defendant an additional 2-year discount, which was equivalent to 12% of the starting point of 16 years, in light of the self-consumption of all the drug by the defendant.  In HKSAR v Chow Kam Lung [2010] 4 HKLRD 253, the Defendant admitted importing 22.15 grammes of ketamine from the Mainland, but claimed that the drug was wholly for his own consumption.  The Court of Appeal considered that the reduction in sentence on account of the above factor should be in the region of 25%.

17.We have to point out that the defendants in Meah & Marlow, Chung Kam Fai and Chow Kam Lung were all involved in importing drugs and sentenced by the Court on the basis that the drugs were wholly for their own consumption.

18.In HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558, the defendant pleaded guilty to trafficking in 15.77 grammes of heroin but claimed that two-thirds thereof were for his own consumption.  The Court of Appeal agreed that when part of the dangerous drug was intended for personal consumption by the trafficker, an appropriate, albeit not substantial, discount to sentence should be given.   The defendant was given an approximate discount of 15% by the Court of Appeal. 

19.We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances,  fall somewhere between 10% and 25% of the basic starting point.  In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.  We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in. 

20.As pointed out by the Judge, possession of “ice” for personal consumption is also an offence in itself.  Furthermore, we must not overlook the latent risk that the portion of the drug intended for the Appellant’s own consumption may be given or sent to others. 

21.In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 at 80E, this Court also emphasized that the gravity of trafficking is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.

22.With 15 previous convictions, the Appellant’s criminal record is worse than those of other defendants in similar cases.  It must also be borne in mind that the Appellant re-offended when he was wanted.  Having regard to self-consumption by the Appellant of most of the “ice” involved, the Judge reduced the starting point from 5 years and 10 months to 5 years and 3 months.  We agree that this 7-month discount (i.e. approximately 10%) is on the conservative side.  Nevertheless, in our judgment, the Judge has not erred in principle, nor is the final sentence of 3 years and 6 months on the first charge manifestly excessive.

23.The ground of appeal advanced by the Appellant fails.  We therefore dismiss his appeal against sentence.

Mr. Robert Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.

Mr. David Ma and Ms. Eunice Yung, instructed by the Bar Free Legal Service Scheme, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.