HKSAR v. Tsang Chung Keung

CACC 165/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 165 OF 2014

(ON APPEAL FROM DCCC 56/2014)

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the Reasons for Judgment of the court):

1.Before Judge Douglas Yau in the District Court, the Applicant pleaded guilty to one count of ‘trafficking in a dangerous drug’, namely 6.33 grammes[1] of methamphetamine hydrochloride (“ice”), and was sentenced to 42 months’ imprisonment. He sought leave to appeal against his sentence.

THE FACTS

2.Police on anti-narcotics duty intercepted the applicant at Shek Kip Mei Estate.  They found from the applicant’s left front trousers pocket one re-sealable plastic bag containing the drug in question. Under caution, the applicant admitted helping someone called Ah Choi to bring the drug to the locus in quo to earn some money.  Also on the applicant’s person was one mobile phone and cash $79. Nothing suspicious was found in the applicant’s home in Yau Ma Tei.  In a video recorded interview, the applicant elaborated on his earlier admission.  He said he had collected the drug from a flower bed.  His task was to bring it to a basketball court in Shek Kip Mei Estate where, at Ah Choi’s telephone instruction, he was to pass it to someone for a reward of $100.  It was an admitted fact of the case that the drug was worth about $3,631 in street value.

THE APPLICANT’S BACKGROUND

3.The applicant was aged 37.  He left school after Form 3.  He was working in the recycling business when, in March 2011, an industrial accident put him on sick leave for two years, for which he received a compensation of $100,000.  By the time of this offence on 26 November 2013, the applicant had rejoined the work force as a wedding organizer, but only on a casual basis.  He was living on his savings and a monthly disability allowance of $4,400.  The applicant had on 15 occasions during 1992, 1993, 1995, 1997, 1998, 1999, 2000, 2002 and 2009 been convicted of 26 offences none of which was drug related.

MITIGATION

4.In his Reasons for Sentence (“R/S”), the sentencing judge quoted counsel as saying:

“7. The defendant has been a drug addict since 2011 when he was injured at work. He started to take dangerous drugs after the injury under the misguided belief that it would reduce his pain.

8. Counsel for the defendant submitted that half of the dangerous drugs were for the defendant’s own consumption. A urine test report was produced to show that urine samples taken on 28 November 2013 from the defendant had tested positive for amphetamine. This is to support the defendant’s claim that he was a user of the drug.

9. It is the defendant’s claim that what he told the police under caution in the video recorded interview was not the whole truth.  The truth is that he was promised half of the drugs that he was to deliver that night for a discounted price of $900.  He was to deliver the drugs to the basketball court, wait for the phone call, then split the drugs with someone as directed by Ah Choi.  The defendant would also get $100 from that person for his trouble.”

THE ORIGINAL SENTENCE

5.The judge continued:

“12. There is nothing in the defendant’s personal circumstances as put forward in mitigation that would persuade me to depart from the sentencing tariff.

13. As for self-consumption, I find that the drug test conducted by the CSD on the defendant’s urine sample just two days after the defendant’s arrest for the present offence strong evidence to suggest that the defendant was in fact a user of amphetamine. This is important because otherwise there is no previous conviction to suggest that the defendant was a drug addict.

14. For that reason, I find it enough to support the defendant’s claim put forward by his counsel in mitigation that some of the drugs were for his own consumption. I also find that it is not inconceivable that the defendant was given a discount on the drugs for helping to deliver it.

15. I will grant the defendant the benefit of the doubt and sentence him as if half of the drugs was to be for his own consumption.  This half will of course, according to authorities, also carry its own sentence.  [Here the case of HKSAR v Wong Suet Hau was footnoted in the original R/S.]

16. On that basis, I will adopt a starting point of 51 months’ imprisonment for the trafficking of 3.165g of methamphetamine hydrochloride content and a starting point of 12 months’ imprisonment for the simple possession of the other half of the drugs. The total starting point is therefore 63 months’ imprisonment.

17. The defendant is granted the full one-third discount for his guilty plea and sentenced to 42 months’ imprisonment.”

GROUND OF APPEAL

6.The short point of complaint was that the judge erred in adopting two starting points for sentence – 51 months for trafficking and 12 months for possession.  In the result, the overall starting point of 63 months and the 42-month sentence after plea were said to be wrong in principle and/or manifestly excessive. (see R/S, §16 & 17 above)

DISCUSSION

Two starting points?

7.HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 is no authority for the proposition that in a case such as this, the portion of drug intended for self-consumption is to “carry its own sentence” (see R/S, §15 above).

8.This phrase which does appear in the Wong judgment conveys nothing more than the need for attention that in adjusting sentence, it should not be forgotten that the possession of drugs itself is an offence punishable by imprisonment.  The concern is that the ultimate sentence does not become unjustifiably lenient.  That this is so is borne out by the following passage in the said judgment (at p 78F–J):

“33. The answer to the question which was raised when leave in both of these appeals was given, namely, what the sentencer should do when the trafficker says that part of the drugs were for his own consumption, is that, where appropriate, this element should be taken into account when sentence is imposed, because all sentencing must be based on a version of the facts which properly reflect the justice of the case. That being said, in drug cases, where traffickers are renowned for their attempts to circumvent the rigour of the courts’ stern approach to drug offences, sentencers will need to examine with particular care, any assertion by a proved or self-confessed trafficker, that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted, as having been intended for self-consumption, carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true ‘mixed’ cases, the difference in sentence, if any, will be slight.” (emphasis added)

9.In the present case, the applicant had pleaded guilty to trafficking in all 6.33 grammes of ice.  The fact that he assumed possession of the drug, transported it from one location to another and was about to deal with it as per the instruction of Ah Choi, supported that plea.  The correct approach was therefore to have only one starting point for the offence of trafficking.  That starting point should then be discounted to give effect to the judge’s finding that half the drug was for the applicant’s own consumption.

10.Ms Parwani for the respondent did not seek to argue otherwise.  She conceded that in adopting two starting points, the judge had fallen into error.  The question was to what extent should the single starting point for trafficking be reduced on account of self-consumption?

Discounted by how much?

11.Mr Tse for the applicant had put forward five cases for our consideration.

12.In HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561, the accused was caught buying 15.77 grammes of heroin in 60 packets.  The prosecution case was that he bought the drug for resale to others, hence trafficking.  The accused pleaded guilty but claimed that two-thirds of the heroin was for his own use.  On appeal, this Court accepted that part (but not as much as two-thirds) of the drug was intended for that purpose.  For that, a discount of 17% (or 11 months from a starting point of 5 years and 5 months) was considered appropriate. A further discount of one-third was accorded to reflect the applicant’s guilty plea.

13.In Secretary for Justice v Chan Chun Fai [2011] 3 HKLRD 116, the accused was caught leaving Hong Kong for Macao with 12.85 grammes of ice in his possession.  He pleaded guilty to trafficking on the accepted basis that the drug was wholly for his own consumption.  In allowing the application for review of sentence, this Court adopted a starting point of 7 years, reduced it by 25% to take account of the factor of self-use and then further reduced it by one third to take account of the guilty plea.

14.In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the accused who had a bad record of drug-related offences was caught carrying 7.22 grammes of ice in the street.  He pleaded guilty to trafficking.  On the accepted claim that more than half of this drug was for his own consumption, the applicant received a discount of 10% from the sentencing judge, who then further discounted the sentence by one‑third.  (The starting point was 5 years and 10 months.)  Remarking that the 10% discount was “on the conservative side”, this Court nevertheless refused to interfere with the sentence.

15.In HKSAR v Ngai Ho Ting [2013] 4 HKC 547, the accused was caught bringing into Hong Kong 5.09 grammes of ice.  His claim that the drug was exclusively for his own consumption was rejected by the sentencing judge on his plea to trafficking.  This was overturned by the Court of Appeal who ordered a further reduction of 13 months on account of the claim to self-use.  From a starting point of 5 years, this worked out to be a discount of 22%.

16.In HKSAR v Law Num Chun CACC 360/2013 (unreported, 26 August 2014), the accused was found to have at home 7.81 grammes of ice, 13.58 grammes of heroin, 16 tablets containing 0.16 garmmes of methamphetamine and 334 tablets containing 4.68 grammes of midazolam.  She pleaded guilty to a single charge of trafficking.  Her claim that all the drugs were for her own consumption was rejected by the sentencing judge.  The judge accepted that some of the drugs in tablet form were for self-use and on that basis, discounted the starting point of 7 years and 6 months by 10%.  On appeal, this Court took the view that some of the ice in crystalline form could also be for self-consumption and accorded a 15% discount for self-use on an adjusted starting point of 7 years.

Our view

17.In Chow Chun Sang (ibid), Yeung VP had the following observation (at p 1126):

“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 the 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 organised and premeditated, and the background and criminal record of the defendant ….

20. As pointed out by the Judge, possession of ice for personal consumption is also an offence 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 out to others.

21. In HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, 80E, this Court also emphasised 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.”

18.Having regard to all the circumstances of the present case, and to give effect to the judge’s finding that half the drug involved was for self-consumption, we think a discount of 18% would be appropriate from a starting point of 5 years and 6 months.  The resulting sentence (4 years and 6 month) will then be further reduced by one-third to take account of the guilty plea thus giving a final sentence of 3 years’ imprisonment.

CONCLUSION

19.For the above reasons, we allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quashed the sentence of 42 months and, in its place, imposed a sentence of 3 years’ imprisonment.

Ms Audrey Marie Parwani, SPP (Ag) of the Department of Justice, for the respondent

Mr Bruce C H Tse, instructed by Au Yeung, Cheng, Ho & Tin, assigned by Legal Aid Department, for the applicant

[1]   All the quantitative references in this judgment are by weight of the drug’s pure narcotic content.