HKSAR v. Minney, John Edwin

Press Summary (English)

Press Summary (Chinese)

FACC No 2 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 2 OF 2012 (CRIMINAL)

(ON APPEAL FROM CACC NO 383 OF 2010)

_____________________

Between :

________________________

J U D G M E N T

________________________

Mr Justice Chan PJ:

1.I agree with the Judgment of Mr Justice Tang PJ.

Mr Justice Ribeiro PJ:

2.I agree with the Judgment of Mr Justice Tang PJ.

Mr Justice Tang PJ:

3.The appellant pleaded guilty to two offences of possession of dangerous drugs.  The first (charge 16) involved possession of a total of 1.46 grammes of a powder containing 0.85 grammes of cocaine inside 3 plastic bags at the Diesel’s Bar on Lamma Island.  The second (charge 17) involved 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 found at his home.

4.Deputy District Judge Dufton regarded 6 months imprisonment as appropriate for the first offence and 12 months for the second.  However, he said:

“9. … 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.^[1] I therefore increase the starting points by 3 months to 9 months and 15 months imprisonment.”

5.After giving the appellant full credit for his pleas of guilty the Judge sentenced him to six months imprisonment on charge 16 and 10 months imprisonment on charge 17, to be served concurrently.

6.The appellant argued on appeal that the latent risk sentencing principle is unconstitutional since it imputes to a person convicted of a possession offence an unproven intent, predilection or propensity to commit the more serious offence of trafficking contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.   It is said that that 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.

7.His appeal was dismissed by the Court of Appeal.^[2] The Appeal Committee has granted leave to appeal on a certified point of law namely “to what (if any) extent a sentencing court should take into account the risk that the dangerous drugs the subject-matter of a charge of simple possession will find their way into hands of others, and how the court should approach the question of any such risk? ”

8.Mr Dykes SC for the appellant accepts that the court may have regard to aggravating factors. One such aggravating factor, he accepts, is, leaving drugs in a place where others have access to them.  Mr Dykes also accepts that taking drugs to a pub is an aggravating factor, he says because consumption of drugs in public may encourage drug taking.  He contends, however, that it is impermissible to have to regard to the risk of dissemination^[3]. That is not because the risk is non-existent or unreal, but, because, to do so, one would be punishing the possessor for his “present conditional intention” to traffic in dangerous drugs.  That, Mr Dykes submits, is tantamount to punishing him for an offence (trafficking in dangerous drugs) for which he has not been charged. 

9.One of the first cases in which the latent risk factor in drug offences was considered is R v Chiu Hung-wong And Another [1994] 1 HKCLR 184, an appeal from District Judge Lugar-Mawson, as he then was. 

Silke VP who gave the judgment of the Court approved the following statement by Judge Lugar-Mawason:

“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.”

10.Silke VP went on to say there is “no offence known to law as ‘unproven trafficking’” and added:

“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.”

11.In R v Lee Siu-lung [1995] 2 HKCLR 247, an appeal against sentence was allowed because the Judge, after saying that the applicant had said that the drugs in question were for his personal consumption, added:

“I have no doubt that this is true for some of the drugs seized.” (my emphasis)

Power VP said on behalf of the Court:

“… 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.”

12.In HKSAR v Mok Cho Tik [2001] 1 HKC 261, on the subject of latent risk, Stock JA (as he then was) said:

“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.”

13.In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, 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.  The three steps are:

“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.”

14.These authorities show clearly an awareness that whilst a sentencing court may take into account the risk that the drug will fall into the hands of others, the possessor must not be sentenced as if he had been convicted of trafficking. 

15.Here, Fok JA said:

“28. … 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.”

16.With respect, I agree.  The assessment of the risk of dissemination depends on the drawing of the correct inference from the circumstances of the possession as established on the evidence.  Before any such inference is drawn, the sentencing court must be sure that in all the circumstances of the particular case, the risk of dissemination is real.  The sentencing judge is best placed to decide whether there is such a real risk.  Often times, it is just a matter of common sense. 

17.The sentencing judge must also bear in mind Fok JA’s reminder that: 

“31. ……

(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.”

18.The authorities discussed above show that the court’s approach to latent risk does not in anyway contravene the presumption of innocence.  As Fok JA explained:

“29. … 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.”

19.I would dismiss the appeal.

Mr Justice Hartmann NPJ:

20.I agree with the Judgment of Mr Justice Tang PJ.

Lord Clarke of Stone-cum-EbonyNPJ:

21.I agree with the Judgment of Mr Justice Tang PJ.

Mr Justice Chan PJ:

22.The Court unanimously dismisses the appeal.

Mr P J Dykes SC & Mr G Surman, instructed by Vidler & Co, for the appellant

Mr Kevin P Zervos SC, DPP & Mr Ira Lui, SPP of Department of Justice,for the respondent