HKSAR v. YEUNG SHEK YUNG

CACC 314/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 314 OF 2016

(ON APPEAL FROM HCCC NO 272 OF 2016)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  The applicant, who was the 1^st defendant on the indictment, pleaded guilty before Deputy Judge Lugar-Mawson (“the judge”) in the High Court to two counts of trafficking, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the same Ordinance, the narcotic values of the drugs in each count being particularised as follows:

(a)  Count 2: Possession of a dangerous drug, namely 0.14 grammes of methamphetamine (commonly known as ‘Ice’);

(b)  Count 3: Trafficking in dangerous drugs, namely 25.2 grammes of ‘Ice’ and 11.7 grammes of heroin hydrochloride; and

(c)  Count 4: Trafficking in dangerous drugs, namely 227 grammes of ‘Ice’, 7.45 grammes of heroin hydrochloride, 17.2 grammes of cocaine, 2.18 grammes of midazolam and 0.22 grammes of methadone.[1]

2.  On 20 September 2016, the applicant was sentenced to 10 years’ imprisonment on Count 4 and 6 years’ imprisonment on Count 3, both sentences being ordered to run concurrently with each other.  In respect of Count 2, the applicant was given a further 6 months’ imprisonment, which was likewise ordered to run concurrently with the sentences on Counts 3 and 4.  The overall sentence, therefore, was 10 years’ imprisonment.  It is from that sentence that the applicant now appeals.

3.  At the hearing of the appeal, we refused the application and said we would hand down the reasons for our decision in due course, which we now do.

The facts

4.  Having been intercepted and questioned by uniformed police officers on patrol at the junction of Apliu Street and Pei Ho Street, Sham Shui Po, Kowloon at around 0518 hours on 29 August 2015, the 2^nd defendant (D2) claimed that he had left his HKID card at his residence at Room 7, 1^st Floor, 205 Apliu Street, Sham Shui Po.

5.  When the police officers escorted D2 to Room 7 on 1^st Floor of 205 Apliu Street, Sham Shui Po they found the applicant sitting outside the unit facing a table and holding a plastic bottle with a straw inserted, containing greenish liquid.  Upon arrest and caution, the applicant stated that the liquid was for his own consumption.  The liquid was later confirmed to be 20 millilitres of a liquid containing 0.14 grammes of ‘Ice’.  These facts formed the basis of Count 2.

6.  A month later, at 2113 hours on 30 September 2015, the applicant, who had been placed on court bail in respect of Count 2, was intercepted by other police officers outside Flat B, 4^th Floor, 31 Wong Chuk Street, Sham Shui Po, Kowloon and two transparent plastic bags of suspected dangerous drugs found on him.  The drugs were later confirmed to be 27 grammes of a crystalline solid containing 25.2 grammes of ‘Ice’ and 15.1 grammes of a mixture containing 11.7 grammes of heroine hydrochloride.  These facts formed the basis of Count 3.

7.  The applicant was then taken inside Flat B on 4^th floor of 31 Wong Chuk Street for a search of his home, and the following dangerous drugs were discovered:

(a)  3 plastic bags containing 518 grammes of a crystalline solid containing 227 grammes of ‘Ice’;

(b)  a plastic bag containing 168 grammes of a mixture containing 7.45 grammes of heroin hydrochloride;

(c)  3 plastic bags containing 22.1 grammes of a solid containing 17.2 grammes of cocaine;

(d)  17 foil packs containing a total of 156 tablets containing 2.18 grammes of midazolam; and

(e)  5 foil packs containing 50 tablets containing 0.22 grammes of methadone.

These facts formed the basis of Count 4.

8.  The applicant admitted in a subsequent video-recorded interview that the dangerous drugs, the subject-matter of Counts 3 and 4, belonged to him.  Upon pleading guilty, he accepted in terms that the dangerous drugs found in his possession in Count 3, and in his home in Count 4, were for the purposes of trafficking.  The total retail value of the dangerous drugs particularised in both counts was HK$353, 825.

Mitigation

9.  During mitigation, Mr Chase Pun, who represented the applicant in the court below as he does before us today, advanced essentially two mitigating factors: first, that the applicant had pleaded guilty; and secondly, that part of the dangerous drugs was for the applicant’s own consumption.  Advocating the combined approach to calculate the respective starting points, and then cross-checking the result against the so-called “absurdity test”, the “conversion test” and the “ratio test”, he submitted that the overall starting point should be less than 15 years’ imprisonment, from which the applicant should receive a discount for his own consumption of some of the drugs.

Reasons for sentence

10.  The judge noted that the applicant had 17 previous appearances before the courts for drug-related offences, the last one (in February 2012) being for trafficking in dangerous drugs, for which he received a sentence of 5 years’ imprisonment in the High Court.  In fact, the applicant had a further conviction for trafficking (in May 2002), for which he received a sentence of 12 months’ imprisonment in the magistrate’s court.

11.  The judge described the applicant as “a hopeless and irredeemable drug addict”.  He also accepted that so far as the applicant’s trafficking in the drugs found in his possession in the street in Count 3, and in his home in Count 4, it could properly be regarded as a single course of criminal conduct.

12.  The judge noted that, among the various dangerous drugs seized, ‘Ice’, heroin and cocaine were the most potent of the drugs involved.  Ignoring the very small quantity of midazolam and methadone, but taking into account the applicant’s criminal record and the fact that Counts 3 and 4 were committed whilst on bail for Count 2, and applying the combined approach as well as the totality principle, the judge adopted an overall starting point of 15 years’ imprisonment in respect of Counts 3 and 4.

13.  He then stated:

“Because of your plea of guilty and because I accept that some of your stash of drugs must have been for your own self-consumption, I will reduce that sentence of 15 years by as much as one-third, to one of 10 years’ imprisonment.”

Accordingly, he passed an ultimate overall sentence of 10 years’ imprisonment.

Applicant’s submissions on appeal

14.  Relying on the judge’s statement that the one-third discount would reflect his acceptance that some of the drugs “must have been for (the applicant’s) own self-consumption”, Mr Pun argues that in effect the judge must have given no consideration to the applicant for this factor, since the applicant could have expected a one-third discount for his plea of guilty alone.  Mr Pun makes no challenge to the overall starting point of 15 years’ imprisonment.

Respondent’s submissions on appeal

15.  Mr Cliff Ip, on behalf of the respondent, argues that the overall sentence was not manifestly excessive, since there were three significant aggravating factors, which taken together should, on the basis of authority, have led to a 20% increment in the starting point.  They were:

(a)  The applicant’s appalling criminal record: see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830; HKSAR v Yeung Wing Chuen [2006] 3 HKLRD 220;

(b)  The commission of offences Counts 3 and 4 whilst on bail: see HKSAR v Leung Ting Fung & Anor [2015] 1 HKC 290, at para’s 28-34; Secretary for Justice v Rashid Mahmood [2012] 2 HKLRD 1203, at para 29; and

(c)  The applicant’s trafficking in a variety of different dangerous drugs: see HKSAR v Wan Lau Mei [2014] 4 HKC 75, at para’s 40-41; HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011, 13 February 2012), at para 11.

Accordingly, Mr Ip argues that the starting point should have been greater.  He does not accept that any discount for the applicant’s assertion that he would consume some of the drugs was, in the circumstances, warranted.

Consideration

16.  The question for us is a simple one.  Is the sentence of 10 years’ imprisonment from a starting point of 15 years’ imprisonment manifestly excessive or wrong in principle in the circumstances, given that the judge appears to have accepted that the applicant was a drug addict and that some of the drugs must have been for his own consumption?

17.  The problem facing Mr Pun at this appeal is that he has never sought to quantify how much of the dangerous drugs, or indeed which of the dangerous drugs, were for the applicant’s own consumption.  Nor did the applicant give evidence in support of what was being asserted from the Bar table.  The judge was here dealing with a very large quantity of dangerous drugs, worth more than HK$350,000.  Even if some of the drugs, whichever they were, were for the applicant’s own consumption, no figure or proportion of the whole was ever suggested so as to justify the judge in giving a discount for this factor.  The judge would, on the authorities, have had to be satisfied that a “significant proportion” of the drugs particularised were for the applicant’s own consumption: see HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, at para 34.  Yet, there was no basis for him to come to such a conclusion and, indeed, he never said that a “significant proportion” or amount was for the applicant’s own consumption: all he said was that “some of your stash of drugs must have been for your own self-consumption”.

18.  Furthermore, with such a large and valuable quantity of dangerous drugs, it is very unlikely that a defendant would be able to persuade a court that a “significant proportion” of them were for his own consumption.  As a matter of common sense, the larger the quantity, the less likely it is that a claim of own consumption could reach the threshold of a “significant proportion” of the whole.

19.  There were in this case three formidable aggravating features to be taken into account, namely, (i) the applicant’s previous convictions for trafficking; (ii) his commission of the much more serious offences in Counts 3 and 4, whilst on court bail for Count 2; and (iii) the fact that the applicant was dealing in no less than 5 different dangerous drugs, thus catering to a wider market of customers.  While the judge referred to the first two factors, he does not appear to have borne the third factor in mind at all.

20.  In respect of these three aggravating features, we agree with the submissions of Mr Ip that each addresses a different aspect of sentencing.  Drug traffickers who repeat their crimes deserve a more severe punishment because of the need to protect innocent family members and society generally from the depredations of drug addicts and potential drug addicts, as well as to deter them from committing further similar offences.  Those who commit offences whilst on bail must be punished for their blatant disregard and contempt for the law.  Drug traffickers who deal in multiple kinds of dangerous drugs must be discouraged from supplying different drugs to a wider section of potential customers, thereby spreading illicit drug usage and substantially increasing their profits from this nefarious trade.

21.  When the quantity, value and types of different dangerous drugs are taken into account, together with the three aggravating features to which we have just referred, we do not consider that the applicant’s starting point was either manifestly excessive or wrong in principle.  Indeed, it could be said to have been lenient in view of the number and seriousness of those aggravating features.

22.  Nor do we think that the assertion concerning the applicant’s own consumption of some of the drugs concerned would, or should, have made the slightest difference to the sentence in the circumstances of this case.  Mr Pun’s reliance on HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 for the proposition that something less than a “significant proportion” should still afford some discount is, with respect, misplaced.  The Court there was not approving of a departure from, or extension of, the principles in HKSAR v Wong Suet Hau & Another, which it endorsed and applied.  Rather, it was dealing with a very small discount which the judge had afforded the defendant, based on a concession by the prosecutor, in the exercise of her discretion.  It is going too far to say that the Court in HKSAR v Liu Ming Sze was approving of the course adopted by the sentencing judge: it merely referred to what she had done in refusing leave to appeal against the sentence.

23.  For the above reasons, the application for leave to appeal against sentence was refused and the appeal dismissed.

[1] Count 1 concerned the 2^nd defendant alone.