HKSAR v. HO SIU LOI

CACC 362/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 362 OF 2012

(ON APPEAL FROM DCCC 535 OF 2012)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1. The appellant, with the leave of the single judge, appeals against the sentence of 3 years and 6 months’ imprisonment imposed upon him on 20 August 2012 by Deputy District Judge Gary Lam, as he was then, following his plea of guilty to a single charge of trafficking unlawfully in 5.4 grammes of methamphetamine hydrochloride on 11 April 2012.

The facts

2. The appellant was apprehended by a police officer at about 11:27 p.m. after he had run up the stairs of a building at 186, Yu Chau Street in Sham Shui Po.  A re-sealable plastic bag containing the methamphetamine hydrochloride, the subject of the charge, was found in the right front trouser pocket of the appellant.  Having been cautioned, the appellant contended that the dangerous drug was for his own consumption, albeit that on their request he would allow his friends to use some of the dangerous drugs.  In a subsequent record of interview, the appellant asserted that he had bought the dangerous drugs earlier that evening for $2,500.

Reasons for sentence

3. In his reasons for sentence, the judge noted that the respondent did not challenge the assertion, made by the appellant in his record of interview, that one third of the dangerous drugs found on him was for his own consumption.

4. Having noted that the appellant had 17 previous criminal convictions, two of which were for unlawfully trafficking in dangerous drugs and eight of which were for simple possession, the judge noted that the appellant was released from custody last in August 2011.  His release on that occasion was at the completion of the sentence of 47 months’ imprisonment, imposed upon him in March 2009 for unlawfully trafficking in dangerous drugs.

Starting point

5. Having noted that the appropriate tariff for sentence for unlawfully trafficking in methamphetamine hydrochloride had been stipulated in the judgment of this court in the Attorney General v Ching KwokHung[1] as explained by HKSAR v Capitania[2], and having observed that 5.4 grammes of methamphetamine hydrochloride fell within the bracket of up to 10 grammes for which the range of sentence was 3 to 7 years’ imprisonment, the judge stipulated a starting point of 6 years’ imprisonment.

Discount

6. For his plea of guilty, the judge said that he reduced the sentence to 4 years’ imprisonment.  In addition, in order to reflect the fact that one third of the dangerous drugs was for self-consumption, the judge reduced the sentence imposed on the appellant further, to 3½ years’ imprisonment.

Grounds of appeal against sentence

7. In his home-made grounds of appeal against sentence, the appellant simply said that he wished to appeal against the sentence imposed on him.  In his written submissions to the court the appellant drew the attention of the court to the sentence imposed in District Court Case 402 of 2012 in HKSAR v Man Tsz Shun[3]. There, the defendant pleaded guilty to unlawfully trafficking in 6.13 grammes of methamphetamine hydrochloride.  Deputy District Court Judge E. Lin took a starting point of 36 months’ imprisonment to which he applied a one-third discount because of the defendant’s plea of guilty.  Accordingly, the sentence imposed on that defendant was 2 years’ imprisonment.  The appellant invited this court to note that the disparity in sentence between that sentence, and the sentence imposed upon him for a lesser amount of methamphetamine hydrochloride.  It is to be noted that the judge stated specifically in his reasons for sentence, that he had adopted a lower than usual starting point for sentence having regard to the appellant’s mental illness and unfortunate background.[4]

8. In addition, the appellant points to the starting point of 5 years’ imprisonment taken for sentence by the same judge in HKSAR v Wong Wing Lok [5], who happens to be his fellow inmate, for unlawfully trafficking in 5.51 grammes of methamphetamine hydrochloride.

9. In respect of the judge’s reference to the applicant’s previous criminal record, in particular to the two offences for which he was convicted of unlawfully trafficking in dangerous drugs, the appellant invited the court to take into account the fact that he has served those sentences.  He has already been punished for those matters. Thirdly, the applicant has invited the court to note that it was accepted by the respondent and by the judge that one third of the dangerous drugs was for his own consumption.  Of that, he submits that the amount in which he is to be regarded as trafficking unlawfully is reduced to 3.6 grammes of methamphetamine hydrochloride.  

Discussion

10. An arithmetic application of the guidelines for unlawfully trafficking in 5.4 grammes of methamphetamine hydrochloride suggests that it attracts a sentence of about 5 years’ imprisonment.  On that basis, the enhancement of sentence to a starting point of 6 years’ imprisonment was of about 20%.  There is no dispute that in sentencing the appellant the judge was entitled to treat the commission of the offence of unlawfully trafficking in dangerous drugs as more serious, given the appellant’s two previous criminal convictions for that offence.

11. The appellant has multiple convictions for the offence of possession of dangerous drugs, beginning in 1994, for which he had been sentenced to an escalating range of the available sentences from probation, to detention in a Drug Addiction Treatment Centre and, finally, to a short sentence of imprisonment.  In 2005, he was sentenced to a total of 8 months’ imprisonment not only for possession of dangerous drugs but also for the first time for unlawfully trafficking in dangerous drugs.  In 2006 and 2008 he was made the subject of further Drug Addiction Treatment Centre Orders.  In 2007, he had been sentenced to 18 months’ imprisonment for possession of dangerous drugs.  Then, in March 2009, he was sentenced to 47 months’ imprisonment for his second offence of unlawfully trafficking in dangerous drugs.  He was released from that sentence only eight months before the commission of the instant offence.

12. Whilst the judge was entitled to enhance the starting point taken for sentence, having regard to the appellant’s previous convictions for unlawfully trafficking in dangerous drugs, in our judgment the enhancement was too great.  We are satisfied that an enhancement of 6 months’ imprisonment from an initial starting point of 5 years’ imprisonment was appropriate to reflect the appellant’s culpability.

Discount for the plea of guilty

13. No issue is taken with the discount of one third afforded by the judge to the appellant from that taken as a starting point to reflect the pleas of guilty.  Applying that discount to a starting point of 5 years and 6 months’ imprisonment results in a sentence of 3 years and 8 months’ imprisonment.

Discount for self-consumption

14. Again, no issue is taken with the approach of the judge in affording the applicant an additional discount of 6 months’ imprisonment to reflect the fact that it was accepted that one third of the dangerous drugs was for the appellant’s self-consumption.

Conclusion

15. In the result, we allow the appeal and quash the sentence of 3 years and 6 months’ imprisonment and in its place impose a sentence of 3 years and 2 months’ imprisonment.

[1]   Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

[2]   HKSAR v Capitania (CACC 28/2004; unreported, 11 August 2004).

[3]   HKSAR v Man Tsz Shun (DCCC 402/2012; unreported, 29 June 2012).

[4]   HKSAR v Man Tsz Shun, paragraph 8.

[5]   HKSAR v Wong Wing Lok (DCCC 885/2012; unreported, 26 November 2012).