HKSAR v. CHUNG FOON MING

HCMA163/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.163 OF 2001

(ON APPEAL FROM NKCC 5735 OF 2000)

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J U D G M E N T

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1. The appellant was charged with trafficking in 41 packets containing a total of 14.44 grammes of heroin hydrochloride. At the outset of his trial, he had indicated a willingness to plead guilty to possession of those drugs. However, that plea was not accepted by the prosecution and, after a trial before Mr S.M. Sham in North Kowloon Magistracy, he was convicted by the magistrate of the lesser offence of simple possession. He was sentenced by the magistrate for that offence to 15 months' imprisonment which because of the latent risk factor was enhanced by the magistrate by 100%, thereby making a total of 30 months.

2. The magistrate then gave him, as he was entitled to, a one-third discount for the appellant's plea to the charge and discounted the total to 20 months' imprisonment. He ordered that 15 months of those 20 months be served consecutively to the sentence which the appellant was then serving, one of 22 months imposed on him in September 2000 for another offence of trafficking in dangerous drugs. It is against the sentence that the appellant now seeks to appeal.

3. The first ground of appeal, advanced by Mr Wang on the appellant's behalf, is that the magistrate was in error to have taken into account the latent risk factor and, secondly, even if he were not in error, he was in error in enhancing it by 100%.

4. The appellant was, at the time of his arrest, gainfully employed and was earning about $15,000 a month. The magistrate was therefore in error to note that he was only earning $10,000 a month. I am told that he was, at the time of his arrest, living alone. It is not disputed that he was a heroin addict. His evidence before the magistrate was that he had bought the 41 packets for $5,200 for his own consumption and those drugs would have lasted him for more than half a month but less than one month. So, using those rough figures, if in fact he was earning $15,000 a month and using about $5,000 a month to buy drugs for his own consumption which might have lasted him for about a month, that means that he would still have about $8,000 to $9,000 left per month for other expenses to be incurred by him as part of his living expenses.

5. There are no hard and fast rules about what circumstances should be present before a court should take into account the latent risk factor, and all the circumstances of each particular case have to be considered by the court. In the instant case, my judgment is that the magistrate was correct to take into account the latent risk factor. As regards how much the sentence should be enhanced because of the latent risk factor, Mr Wang has referred me to the case of HKSAR v. Wan Sheung Sum [2000] 1 HKLRD 405, where 34 packets of heroin were involved and the starting point adopted was 16 months which was then enhanced by an additional six months. In my judgment, the magistrate should not have enhanced the sentence by as much as 100% and, in my view, taking into account the factors which I have mentioned which are all that is known about this appellant, the sentence can properly be enhanced by another three months. That would then make the original sentence imposed by the magistrate of 15 months become one of 18 months. Mr Wang accepts that the starting point of 15 months adopted by the magistrate was appropriate in this particular case. The 18 months should then be discounted by one-third to take into account the appellant's plea of guilty and, so, that is reduced to a sentence of 12 months.

6. The second ground advanced by Mr Wang is that the magistrate was in error in adopting for the purpose of discount for the plea of guilty a sentence which was in excess of his jurisdictional limit of 24 months' imprisonment. The magistrate had of course used, because of the enhancement, a starting point of 30 months. That is accepted by Miss Lam, appearing for the respondent, that it was an error on the part of the magistrate. It is clear from the authorities quoted that that must be the legal proposition. The case in support of that proposition is HKSAR v. Lo Po Tak [1998] 3 HKC 485, where the Court of Appeal ruled at page 488 that :-

"... whilst the judge may decide if he thinks fit, a starting point beyond the jurisdictional limit, he is bound to give a reduction for pleas of guilty and such reduction should be made from the maximum of seven years ..."

In that case, of course, the Court of Appeal was considering an appeal against the sentence imposed by the District Court, and the court quoted two previous cases in support of that proposition : R. v. Ho Sik Yin [1991] 2 HKC 212 and A-G v. Shek Wai Ip [1995] 2 HKC 368. That point is, of course, academic in this case in view of my decision to reduce the starting point to one of 18 months from the original 30 months.

7. The remaining matter to be considered is how much of the sentence should be made consecutive to the sentence presently served by the appellant. The magistrate had ordered that 15 months of the 20 months imposed by him should be consecutive to the sentence of 22 months, thereby using a figure of 75%. This apportionment is accepted by Mr Wang and he is content for the same apportionment to be used in respect of the reduced sentence, therefore, making 75% of the 12 months consecutive to the present sentence. That will mean that 9 months will have to be served consecutively to the 22 months' sentence, thereby making a total of 31 months.

8. To that extent, the appeal is allowed.