HKSAR v. Mak Wai Ming

[English Translation – 英譯本]
CACC424/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 2010

(ON APPEAL FROM DCCC NO. 107 OF 2010)

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Between

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

Date of Hearing: 4 November2011

Date of Judgment: 4 November2011

Date of handing down Reasons for Judgment: 15 November2011

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REASONS FOR JUDGMENT

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Hon Yeung VP (delivering the reasons for judgment of the Court):

Introduction

1.On 3 May 2010 and before Deputy District Judge Gary Lam, the applicant (Mak Wai Ming) pleaded guilty to trafficking in 3 bags of ketamine totalling 61.94 grammes. The facts showed that on the night of 10 December 2009, Customs Officers stopped and searched the applicant when he returned to Hong Kong via Lo Wu, and found on his person 3 bags which contained a powder totalling 76.51 grammes. The powder was found to contain 61.94 grammes of ketamine. The applicant claimed that the drug was for his own consumption.

2.The applicant, aged 39, is married with 3 children between 4 and 10 years of age. The applicant has a clear record.

3.By way of mitigation, Counsel for the applicant submitted that the applicant had always been hardworking, responsible and caring for the family. Following business and investment failures, he became depressed and even addicted to smoking ketamine under the influence of undesirable acquaintances. Counsel emphasized that the ketamine the applicant brought to Hong Kong was solely for his own consumption.

4.The Judge did not expressly say whether he accepted the grounds of mitigation advanced by the applicant, but did indicate that the applicant “had zealously set up his own business and made investments, and the loss of all the savings he had accumulated over the first half of his life is indeed heartrending.” At the same time, the Judge pointed out that “[the applicant] did not pull up his socks in those trying times, but instead gave up on himself and even became addicted to drug. For this, he can have no one but himself to blame.”

5.The way the Judge described the circumstances in which the applicant committed the offence shows that he accepted the applicant’s assertion that he brought the ketamine to Hong Kong for his own consumption. However, the Judge took the view that, other than the guilty plea, there was no mitigating factor which warranted a reduction of the applicant’s sentence.

6.According to the sentencing guideline laid down in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, where the quantity of ketamine trafficking in 50 to 300 grammes of ketamine attracts a starting point of 6 to 9 years’ imprisonment. Applying this tariff and taking into account that the ketamine involved in the present case was 61.94 grammes, the Judge adopted a starting point of 6 years. He then reduced the term by one-third on account of the guilty plea and sentenced the applicant to 4 years’ imprisonment.

7.The applicant applied to this Court for leave to appeal his sentence. As the application for leave to appeal was out of time, he also applied for an extension of time to appeal.

8.After the hearing, we grantedthe applicant leave to appeal out of time against sentence and, treating the application as the appeal, allowed the applicant’s appeal and reduced his sentence from 4 years to 3 years. The reasons for our judgments are set out below.

Grounds of appeal

9.Mr. Charles J. Chan, Counsel for the applicant, submitted that in determining the applicant’s sentence, the Judge erred in principle in that he failed to take into account the use of the drug in question for the applicant’s own consumption and failed to regard it as a mitigating factor.

10.Mr. Chan argued that, as far as drug trafficking involving the importation of drug is concerned, it is a mitigating factor that all or part of the drug in question was imported for the trafficker’s own consumption; and that, if the trial judge did not reject the contention that the drug was for the defendant’s own consumption, the Court must impose a sentence on the basis most favourable to the defendant, namely that all the drug was for his own consumption.

11.Mr. Chan cited a number of cases, including HKSAR v Chow Kam Lung [2010] 4 HKLRD 253 and R v Chan Mung Lung [1992] 2 HKCLR 127, in support of his argument.

Discussion

12.The respondent did not take issue with the application for leave being out of time. Therefore, we only had to consider the merits of the appeal.

13.In drug trafficking cases, particularly where the offence involves the importation of drug, it is a mitigating factor that all or part of the drug was for the defendant’s own consumption (see, for example, R v Chan Mung Lung [1992] 2 HKCLR 127, R v Chung Kam Fai [1993] 1 HKC 42).

14.In HKSAR v Chow Kam Lung [2010] 4 HKLRD 253, Hartmann JA even plainly said:

“...the issue of whether a drug is imported for personal consumption, in part or whole, is very much a factor to be taken into account in mitigation of sentence. Penlington JA, giving the judgment of the court in R v Chan Mung Lung [1992] 2 HKCLR 127 at 130, described it as a strong mitigating factor.”

15.In R v Meah & Marlow (1991) 92 Cr App R 254, a case concerning drug trafficking by way of importation of drug, 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.Mr. Chan asserted that, where the trial judge made no finding on whether the drug imported by the defendant was for his own consumption, the appellate court must determine the sentence on the basis most favourable to the defendant, namely that all the drug was for the defendant’s own consumption.

17.With respect, we disagree. We take the view that in drug trafficking cases, that the trial judge made no finding on whether the drug in question was for the defendant’s own consumption does not necessarily mean that the appellate court must determine the sentence on the basis that all the drug was for the defendant’s own consumption. The appellate court should determine the appropriate sentence in light of the facts of individual cases. Certainly, the appellate court should also give the defendant the benefit of the doubt, in keeping with the usual practice in criminal cases.

18.The present case involves 61.94 grammes of ketamine. This is not a small quantity, but it does not eliminate the possibility that the drug is wholly for the applicant’s own consumption.

19.As we mentioned earlier on, although the Judge did not explicitly say whether he accepted the applicant’s assertion that the ketamine in question was solely for his own consumption, the way the Judge expressed the matter shows that, in all likelihood, he accepted that assertion.

20.In the above circumstances, we agree that a fairer approach is to sentence the applicant on the basis that the drug in question was imported for his own consumption.

21.We have to reiterate that importing a dangerous drug is a form of drug trafficking, which is distinct from possession of drug, and there must also be a difference in sentencing between the two offences. We cannot ignore the fact that, even if the offence were one of simple possession of 61.94 grammes of ketamine, it would have been sufficiently serious to justify a deterrent sentence. Given the quantity of the ketamine in question, there is also an extremely high latent risk that some of the drug may find its way into the hands of others. This explains why the “personal consumption” factor should not lead to an overly substantial reduction in sentence.

22.Having said that, we also cannot ignore the applicant’s clear record, as well as the possibility that his investment failures accounted for his drug addiction, which in turn caused him to commit the present offence and be imprisoned as a result.

23.In light of the above circumstances, we consider it appropriate to reduce the sentence by another year (which represents 25% of the starting point) which, in our view, justifiably reflects the special factor that the drug in question was intended for the applicant’s own consumption.

24.Accordingly, we have granted the applicant an extension of time to appeal against sentence and, treating his application as the appeal, allowed the appeal and reduced his term of imprisonment from 4 years to 3 years.

Mr. Martin Hui, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent

Mr. Charles J. Chan, instructed by Messrs Sit, Fung, Kwong & Shum, for the Applicant

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