HKSAR v. Lee Chun Man

CACC 360/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2014

(ON APPEAL FROM DCCC NO. 751/2014)

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J U D G M E N T

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1.The applicant seeks leave to appeal against the sentence of 2 years’ imprisonment imposed on him on 6 October 2014 by District Court Judge Casewell following his conviction, on his plea of guilty, to a charge of possession of dangerous drugs on 3 June 2014, namely 55.58 grammes of ketamine and 2.28 grammes of methamphetamine hydrochloride (“ice”), contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. Although counsel for the respondent opposes the grant of the application for leave to appeal against sentence, counsel having indicated that he does not object, this Court has dealt with the matter on the papers only.

The facts

2.The applicant was found sitting in the driver’s seat of a medium goods vehicle parked in a car park at the junction of Ma Tau Pa Road and Yeung Uk, Tsuen Wan in the early evening of 3 June 2014.  The applicant was the designated driver of the vehicle.  A male passenger occupied the front passenger seat.  A tin found on the dashboard of the vehicle contained the ice subject of the charge and just over 8 gramme of ketamine, together with a plastic spoon.  A can found between the driver’s seat and the passenger seat, which the applicant had been seen pushing away from himself when intercepted by the police, was found to contain the remainder of the ketamine the subject of the charge, most of which was founded in six plastic bags, together with an electronic scale.  The applicant was in possession of $6,525.  The retail value of the dangerous drugs was $10,646.

Reasons for sentence

3.In sentencing the applicant, who was 35 years of age, the judge noted that in 2002 he had been fined for a conviction of possession of dangerous drugs.  The judge noted that in mitigation it was submitted that the applicant earned about $16,000 a month, from which he supported his parents and his disabled brother.  It was submitted on behalf of the applicant that the dangerous drugs were for his own consumption, some of which he was consuming whilst the vehicle was parked.

Reasons for sentence

Starting point for Sentence

4.Noting that the usual range of sentence for the offence of possession of dangerous drugs was between 12 and 18 months’ imprisonment and, having said that he had regard to the fact that the applicant was possessed of a cocktail of dangerous drugs, the judge stipulated a starting point for sentence of 18 months’ imprisonment.

Latent risk: enhancement of sentence

5.Having regard to the “latent risk” factor, namely that the applicant might distribute a proportion of the dangerous drugs to others, the judge observed that the applicant was found in possession of dangerous drugs in the vehicle which he was employed to drive and that he was addicted to the views of dangerous drugs.  Noting that, in addition to being possessed of the means of consumption of the dangerous drugs, the applicant was also possessed of electronic scales, the judge observed that that equipment would be useful in the distribution of dangerous drugs to others.  Having regard to the “substantial quantity” of ketamine, the judge said that he could not say that the latent risk was “negligible or small”.  In consequence, the judge stipulated an enhancement of sentence of 18 months’ imprisonment to reflect the latent risk factor.

Discount of sentence

6.The judge said that he discounted the resulting overall starting point for sentence of 3 years’ imprisonment by one-third, to reflect the applicant’s plea of guilty and imposed a sentence of 2 years’ imprisonment.

Ground of appeal against sentence

7.The single ground of appeal in the Perfected Grounds of Appeal against Sentence is that the enhancement of 18 months’ imprisonment to reflect the latent risk factor was “manifestly excessive”.  In support of the ground of appeal, having cited a number of judgments of this Court, Mr Phillip Ross submitted that it was clear that it was unusual an enhancement of sentence to reflect the latent risk factor to be double the starting point taken for sentence.  In addition, he submitted that in the particular circumstances of the applicant, in particular that he was 35 years of age and in well-paid employment, together with the fact that there was no evidence that he had distributed drug at any times, notwithstanding the quantity of ketamine of which the applicant was in possession, the latent risk was not significant.

The submissions of the respondent for the respondent

8.Mr Frederick Chung submitted that none of the authorities cited by Mr Ross suggested that it was wrong to adopt an enhancement of sentence, to reflect the latent risk factor, that was equal to the starting point taken for sentence.  Furthermore, he contended that there was no sufficient basis to argue that the enhancement of sentence by 18 months’ imprisonment was manifestly excessive or wrong in principle.

A consideration of the submissions

9.Having regard to the particular circumstances of this case, in particular that the applicant was a mature man, in well-paid employment without any previous convictions for unlawfully trafficking in dangerous drugs, notwithstanding the substantial quantity of ketamine of which he was possessed, in my judgment it is arguable that the enhancement of sentence by 18 months’ imprisonment to reflect the latent risk factor was manifestly excessive.  Accordingly, I grant leave to appeal against sentence.

Mr Frederick Chung, SPP of the Department of Justice, for the respondent

Mr Phillip Ross, instructed by Ha and Ho, assigned by Director of Legal Aid,for the applicant