HKSAR v. LAM KHAMKHOON

CACC 402/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 402 OF 2014

(ON APPEAL FROM HCCC 46 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  On 5 November 2014, the appellant appeared before Deputy High Court Judge Robert Lee SC and pleaded guilty to one count of trafficking in a dangerous drug involving 21.96 grammes of a crystalline solid containing 21.52 grammes of methamphetamine hydrochloride (“ICE”).  The appellant was sentenced to 4 years and 10 months’ imprisonment on the same day.  On 20 November 2014 the appellant applied for leave to appeal against sentence and on 20 April 2015 leave was granted to the appellant by myself.  At the hearing of the appeal we allowed the appeal, set aside the sentence of the judge and in its place imposed on the appellant a sentence of 52 months’ imprisonment.  We said we would hand down our reasons for so ordering at a later date and this we now do.

Facts of the case

2.  At 1737 hrs on 11 August 2013, the police raided a flat at Lockhart Road, Wan Chai and found the appellant therein.  The police discovered two packets of dangerous drugs containing a total of 0.95 gramme of ICE on top of a television cabinet in the living room.  Upon arrest and under caution the appellant denied any knowledge of these drugs and they do not form any part of the present charge.  However, a search of the appellant’s person uncovered two bags of ICE concealed beneath her brassiere.  These were subsequently determined to contain a total of 21.96 grammes of a crystalline solid containing 21.52 grammes of ICE. The appellant claimed under caution that the packets of ICE found on her person were for her own consumption.  These are the drugs that are the subject of the charge.

3.  The appellant in a subsequent video interview admitted that she came to the flat looking for Nok, a Thai friend of hers, to consume drugs with her.  Nok had to go out and asked the appellant to wait for her to return.  The appellant said she knew that the two packets on the television cabinet contained ICE but she did not know where they came from or to whom they belonged.  As to the ICE found on her person, she said she intended to consume them herself and to share them with customers where she worked.  She said she did not know the value of the ICE found on her person and she refused to reveal how she had obtained it or how much she had paid for it.

4.  The estimated street value of all the ICE, that is, the ICE found on the appellant’s person and the ICE which was on the television cabinet, was $14,652.

Mitigation

5.  The judge was informed that the appellant was born in Thailand and was then aged 39.  She married a Hong Kong person and settled in Hong Kong in 1997.  She has a 16‑year‑old daughter from this marriage which subsequently failed and led to a divorce.  She also has a 7 year old son and 4 year old daughter with a former cohabitee.  The appellant supported her children by working as a dancer and waitress earning $18,000 a month.  The elder daughter had been reported missing at the time of the appellant’s trial but was subsequently located on 16 January 2015 and placed under a care and protection order.

6.  The appellant claimed through her counsel to have begun taking ICE in 2005.  She had two previous convictions for possession of dangerous drugs in 2007 and 2013.  For the earlier offence in 2007 she was fined $1,000 and for the later offence in 2013 she was sentenced to detention in a drug addiction treatment centre.  She committed the present offence whilst on bail for the last offence.

7.  It was said in mitigation that the appellant came to the flat to buy the drugs that were found on her person from Nok for $8,000.  Nok was the appellant’s drug supplier and friend.  Whilst Nok was out obtaining some small change for the appellant’s transportation, the police raided the flat and the appellant was arrested. 

8.  It was asserted on behalf of the appellant that the ICE found on her person was mainly for her own consumption although she might share about one quarter of the drugs with her customers, free of charge, when she was entertaining them.  In advancing these instructions her counsel submitted that the appellant was entitled to “a small discount” to reflect the fact that a part of the drugs were for the appellant’s own consumption. This assertion, that the appellant would consume 75% of the drugs, was not accepted by the prosecutor who articulated the prosecution position as follows:

“There may be a little bit that she may have used, but we certainly don’t accept it was anywhere near as much as three‑quarters - for the record.”

9.  In response to this statement the appellant’s counsel conceded that the appellant’s assessment of three-quarters of the drugs being for her own consumption was only an estimate in respect of which the appellant could not be more precise.  He said:

“But, basically, she is going to take this drug herself while entertaining a customer and she will share with the customer. That’s the basis.”

Reasons for Sentence

10.  Having considered all the circumstances of the case and the sentencing guidelines set out in AG v Ching Kwok Hung [1991] 2 HKLR 125, the judge adopted a starting point for sentence of 7 years and 3 months’ imprisonment.  The appellant was given the usual one‑third discount for her guilty plea which reduced the sentence to one of 4 years and 10 months’ imprisonment.

11.  In respect of the appellant’s counsel’s submission that the appellant was entitled to “a small discount” because a part of the quantity of drugs were for her own consumption the judge said:

“It is said in mitigation that you intended to share the drugs with your friends as well as to consume them yourself. The prosecution does not accept that submission. On the materials before me, prosecuting counsel is right to do so.”

12.  However, the judge also went on to note that the appellant’s “personal circumstances do call for sympathy.”  

Grounds of appeal

13.  The grounds advanced on behalf of the appellant in her Perfected Grounds of Appeal against Sentence are:

(1) the judge erred in failing to alert the appellant’s counsel at the lower court to his preliminary disinclination to accept the appellant’s mitigation that part of the dangerous drugs was for her own consumption.  As a result, the appellant was deprived of an opportunity to decide whether to continue to press it and if so how she might substantiate it;

(2) the sentence imposed was wrong in principle and/or manifestly excessive as it failed to reflect any discount for the appellant’s own consumption of part of the dangerous drugs.

14.  In his written submission in support of these grounds of appeal, and on the hearing of the appeal, the appellant’s counsel said he did not request a Newton enquiry into the appellant’s claim that 75% of the drugs were for her own consumption.  He argued instead that on the facts it was clear that “a quite substantial amount of the drugs would be for the Appellant’s self-consumption albeit the exact amount or proportion could not be ascertained” and that the appropriate sentence and discount should be determined on the basis most favourable to the appellant.  He submitted that a discount of 15% was appropriate in the circumstances of this appellant. 

The respondent’s submissions

15.  The respondent conceded that the judge had fallen into error in not alerting the appellant’s counsel to his preliminary disinclination to accept the mitigation that part of the drugs were for self‑consumption so that the appellant could then decide whether to continue to press this claim and if so to consider how she might substantiate it.  The respondent submitted that the Court of Appeal is entitled to determine the appropriate sentence in light of the facts of the case and in doing so the respondent argued that the discount that should be afforded to the appellant should not exceed 10% of the basic starting point for sentence.

16.  The respondent also argued that the appellant was arrested for the present case whilst on bail for her last case of possession of a dangerous drug, for which she was later sentenced to DATC, and that this is a factor which aggravates the appellant’s culpability for the present offence and warrants the adoption of a higher starting point for sentence. 

Discussion

17.  The respondent is correct in conceding that there was error by the judge and that the appeal must be allowed.  Contrary to the judge’s understanding it was never the prosecution position that none of the drugs were for the appellant’s own consumption.  That was hardly surprising given the addiction record of the appellant.  As a result of this error by the judge it now falls to this court to sentence the appellant afresh.

18.  There are two issues this court must address. The first is the appropriate starting point that should be adopted in sentencing the appellant and the second is the amount of discount that should be allowed to the appellant to take account of the fact that a part of the drugs she possessed were for her own consumption.    

19.  The tariff sentence for the quantity of ICE possessed by the appellant for trafficking that was applicable at the time of this offence is that laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 as supplemented by HKSAR v Capitania CACC 28/2004.  In accordance with these authorities a person who traffics in 10 to 70 grammes of ICE will attract a starting point for sentence of between 7 and 10 years’ imprisonment. The respondent submits that if all the 21.52 grammes of ICE were for trafficking, the appropriate starting point for sentence would be 7½ years’ (90 months) imprisonment and that by adopting a starting point of 7 years and 3 months’ (87 months) imprisonment the sentencing judge has erred in extending greater leniency to the appellant than that to which she was entitled.  Furthermore, the present offence was committed whilst on bail for a drug possession offence and this should operate as an aggravating factor. 

20.  We do not agree.  The tariff guidelines for drug offences are not intended to operate as a sentencing straightjacket.  There will always be room within the guidelines for the exercise of a sentencing discretion, albeit a much more limited one than is available in the case of other offences.  The judge was dealing with an addict in need of treatment and clearly the present offence was committed as a result of her addiction and of the environments in which she worked and lived.  He would have been entitled to conclude that the present offence was due to her addiction and did not evidence a serious disregard of the law.  He was clearly troubled by her personal circumstances and sympathetic to her plight and the plight of her children.  Such leniency as the judge extended to the appellant was still within the guidelines and we can find nothing in the judge’s reasons that would indicate any error by him in the exercise of his discretion in adopting the starting point he did.

21.  However, in respect of the appellant’s claim that 75% of the drugs were for her own consumption there were clear credibility problems which Mr Chong, counsel for the appellant realistically acknowledged. Hence his request that this court not hold a Newton enquiry and simply assess the discount that should be awarded to her on the assumption that an indeterminate quantity of the drugs were for the appellant’s own consumption.

22.  The question of how much of a discount should be allowed when part of the drugs possessed by a trafficker are for his own consumption has been addressed by this court in a number of cases.  The Court of Appeal in its judgment in HKSAR v Tsang Chung Keung [2015] 1 HKLRD 450 adopted the following passage from Yeung VP’s judgment in HKSAR v Chow Chun Sang [2012] 1 HKLRD 1121:

“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.”

23.  Both counsel rely on this judgment.  Mr Chong for the appellant seeks a 15% discount and Ms Chan for the respondent says it should only be 10%.

24.  The appellant’s case is that she is an addict who in the course of her work provided drugs to her customers who were paying for her services or the services of the establishment in which she worked.  This form of trafficking in drugs is not social trafficking but quite clearly commercial trafficking.  The drugs are provided in order to advance the commercial interests of the appellant and of the establishment in which she worked.  Given these circumstances we are in no doubt that a substantial part of the drugs possessed by the appellant were for the purpose of trafficking to others and in the course of so trafficking the appellant would also consume part of them.  We are not persuaded that in these circumstances the appellant is entitled to a discount greater than 10%.

25.  Adopting the judge’s starting point of 7 years 3 months’ imprisonment and then discounting that by 10% the sentence becomes 78 months.  When that figure is further discounted by one third to allow for the appellant’s guilty plea the final sentence becomes 52 months’ imprisonment.

Conclusion

26.  For these reasons we allowed the appeal, set aside the sentence of the judge and in its place imposed on the appellant a sentence of 52 months’ imprisonment.