HKSAR v. WAN WAI LUN

CACC 90/2017

[2018] HKCA 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 90 OF 2017

(ON APPEAL FROM DCCC NO 1135 OF 2016)

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J U D G M E N T

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

1.  The appellant appeals with leave of the Single Judge[1] against a sentence of 53 months’ imprisonment passed by HH Judge Sham (the “judge”) in the District Court on 21 March 2017, following his plea of guilty to a single charge of trafficking in a dangerous drug, namely 22.72 grammes of heroin hydrochloridenarcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.  On 12 September 2016, at about 3:25 pm, police officers patrolling in Sham Shui Po, Kowloon noticed the appellant riding a bicycle and acting furtively.  They intercepted him at what was termed a “sitting‑out area” in Nam Cheong Street, near Fuk Wing Street in Sham Shui Po and, upon a body search, found inside his underwear two transparent re‑sealable plastic bags containing a number of green packets of suspected dangerous drugs; and two transparent re‑sealable plastic bags containing a number of blue packets of suspected dangerous drugs.  A mobile telephone and HK$1,123 in cash were also found on the appellant.

3.  Upon arrest and caution, the appellant said he was only working and asked for a chance.  In a subsequent video-recorded interview, the appellant said, inter alia, that he had no home of his own and had been unemployed for half a year; a man called “Ah Wing” had asked him to deliver dangerous drugs for a reward of HK$800 per day and would contact him to make payment after 7 days; he had only been working for 3 days before he was arrested; he was to meet another man named “Ah Man” every day at 3 pm in Shek Kip Mei MTR station to collect ‘white powder’ and then drop the drugs off at the Nam Cheong Street “sitting‑out area”; he knew that what was found on him was ‘white powder’, but he did not know why it was packaged in different coloured wrapping; and both the cash found on him and the mobile telephone were unrelated to drug trafficking.

4.  A Government Chemist later found that there were a total of 112 small packets found on the appellant, which upon examination were found to contain 29.80 grammes of a mixture containing 22.72 grammes of heroin hydrochloride.  The market value of the dangerous drugs seized was about HK$23,780.

Mitigation

5.  In mitigation, counsel then acting for the appellant submitted that he was 39 years old and did not have a fixed place of abode, although he was permitted to return to live with his family in Yuen Long, where he occasionally went to spend the night.  He had not worked since the year 2000 and relied on Comprehensive Social Security Assistance.  He had a daughter from a previous marriage in the Mainland, who was then nearly 16 years of age.  It was submitted that the appellant’s family was willing to give him moral support, and a number of mitigation letters from them were submitted at the hearing.

6.  Upon enquiry by the judge as to the relevant sentencing guidelines for the quantity in question, defence counsel confirmed that for amounts of heroin narcotic between 10 and 50 grammes, the sentencing range was between 5 and 8 years’ imprisonment after trial.

Reasons for sentence

7.  In his reasons for sentence, the judge noted that the appellant had 10 previous convictions spread over 7 court appearances during the past 14 years, two of which were for possession of dangerous drugs, in respect of which he had been sent to a Drug Addiction Treatment Centre. However, he accepted that this was the appellant’s first offence of trafficking in dangerous drugs.

8.  The judge did not appear to find any aggravating features.  Indeed, he said he saw “no reason to depart from the guidelines as set down by the higher court”.  For the quantity of dangerous drugs concerned, he adopted a starting point of 80 months’ (or 6 years and 8 months’) imprisonment. Giving the appellant a one‑third discount for his plea of guilty, he reduced the sentence to 53 months’ imprisonment.

Grounds of appeal

9.  Ms Priscilia Lam, on behalf of the appellant at this appeal, argues the single ground of appeal that the judge was wrong to take a starting point of 80 months’ imprisonment, when the appropriate sentence after trial for the quantity concerned, on an arithmetical basis under the guidelines in R v Lau Tak Ming[2], absent any aggravating features, should have been no more than 72 months’ imprisonment[3].

10.  She relies on the decision in HKSAR v Smit Hector Edward[4], where this Court said, at para 26:

“…A departure from a strict arithmetical starting point is not, by itself, objectionable, but where it is significant it should be explained.”

Here, the increase in the starting point was about 8 months higher than it should have been on an arithmetical basis, which was clearly a significant increase, and a proportionally more significant increase than that under consideration in Smit Hector Edward.  Yet, no reason was given for the enhancement, in circumstances where the judge did not purport to rely on any aggravating features.

11.  In respect of the respondent’s argument that the appellant had two prior convictions for simple possession of dangerous drugs, Ms Lam pointed out that they were in 2003 and 2009 and were of a different quality from an offence of trafficking in dangerous drugs.  Not only were such convictions for simple possession not capable of enhancing a sentence for drug trafficking, but they did not justify an increase of the starting point by 8 months from what an arithmetical application of guideline to quantity would have produced.

The respondent’s submissions

12.  Mr Eddie Sean, on behalf of the respondent, submitted that the judge was entitled to adopt a higher starting point if there were convictions “of the same or a similar kind” of offence.  A “similar kind” of offence to trafficking in dangerous drugs would include previous convictions for simple possession of dangerous drugs.

13.  For this proposition, he relied on HKSAR v Chan Pui Chi[5], where, in a case involving offences of trafficking in dangerous drugs by an applicant with 22 previous convictions, at least two of which were for trafficking in dangerous drugs while others were for “drug-related offences”, Stuart‑Moore VP said[6]:

“We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none.”

14.  Mr Sean also referred to the case of R v Tam Simon[7], a Magistracy Appeal, where Patrick Chan J (as he was then) said[8]:

“There are clear authorities to the effect that in a case where a person had a history of multiple offences of a similar nature in the past, the court is entitled to take a higher starting point.”

Tam Simon was not, however, a case involving dangerous drugs.

15.  The respondent further relied upon the decision of the Court of Appeal in HKSAR v Lau Tsz Ho[9], where the Court said[10]:

“Given the applicant has 8 previous convictions, 2 of them for the same offence and 5 of them for possession of dangerous drugs, it is clear that some enhancement of the starting point is warranted.”

In that case, Mr Sean contended that the Court had appeared to regard possession and trafficking as similar conduct for the purpose of considering an enhancement of sentence for trafficking.  However, he accepted that any enhancement for this reason must still be reasonable and conform with other sentencing principles, for example, totality.

16.  He acknowledged that, from a reading of his reasons for sentence, the judge in the present appeal did not appear to regard the two previous convictions for possession of dangerous drugs as an aggravating factor in respect of the offence of trafficking.  Nevertheless, it was a matter for this Court as to whether the sentence was manifestly excessive and/or wrong in principle in the light of those convictions which, he submitted, were capable of enhancing the starting point for trafficking.  He invited this Court to consider issuing guidelines on this matter.

Discussion

17.  The parties are agreed that a strict application of guidelines to quantity would have produced a starting point of just under 72 months’ imprisonment.  Yet the judge adopted a starting point of 80 months’ imprisonment without explaining why he had adopted a much higher starting point.  In our view, that is a significant increase of what would have been a strict arithmetical application of the relevant guidelines to the quantity concerned: indeed, it represents an 11.97% increase.  As this Court said in Smit Hector Edward, a departure from a strict arithmetical starting point, whilst not by itself objectionable, should be explained where it is significant.  Here it was significant, yet the judge did not say that he found any aggravating features to justify such a departure.

18.  That, of course, would not necessarily be determinative, if there was in fact an aggravating feature (or features) justifying the increase.  Whilst we do not doubt the general principle that a sentence may be enhanced for previous convictions of the same or a similar kind, the principle is best exemplified where offences of dishonesty, sexual offences or offences of violence are concerned.  Thus, it might be relevant when sentencing a man charged with fraud that he has previous convictions for theft, handling stolen goods or obtaining property by deception; or where a man charged with rape has previous convictions for indecent assault; or where a man charged with inflicting grievous bodily harm has previous convictions for wounding, assault occasioning actual bodily harm or common assault.  We use these examples merely to illustrate the point, not to suggest that this is an exhaustive list of offences which might properly be thought to be of a similar kind to the one with which a defendant is charged.

19.  It seems to us, however, that there are difficulties in treating previous convictions for simple possession of dangerous drugs as aggravating a sentence for trafficking.  Whilst we accept that many defendants sell drugs to feed their own addictions, and the possession of some quantities pose a significant latent risk of being shared with, or falling into the hands of, others, the legislature and the courts have nevertheless recognised that the offences of simple possession and trafficking are qualitatively very different offences calling for very different levels of punishment and/or types of sentence.  For both of the appellant’s two previous convictions for simple possession, for example, he was sentenced to a Drug Addiction Treatment Centre, not a term of imprisonment.

20.  We also recognise that it could be argued that the defendant who has been cured of his drug addiction but who then turns to trafficking in dangerous drugs, well knowing the perniciousness and misery that drugs bring to the lives of those afflicted by them is a cynical example of an offender for whom the courts should have no hesitation in passing a severe and enhanced deterrent sentence.  On the other hand, one does not necessarily need to be a former drug addict to know of the perniciousness and misery associated with the taking of dangerous drugs: everyone in the community is well aware of this acute societal problem.

21.  With respect to the argument of Mr Sean, we do not think that the Court in Chan Pui Chi was meaning to say that previous convictions for possession of dangerous drugs were an aggravating feature in respect of an offence of trafficking.  We note that what the Court actually said was[11]:

“The applicant had 22 previous convictions and had previously, in 1988 and 1992, been sentenced respectively to five years’ and 6½ years’ imprisonment for trafficking in dangerous drugs. His criminal record showed several other drug-related offences including others for trafficking.” (Emphasis supplied)

A little later, the Court went on[12]:

“Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.” (Emphasis supplied)

22.  Thus, apart from the two relatively recent convictions for trafficking in 1988 and 1992 specifically cited by the Court, there were in fact yet other offences of trafficking on his criminal record.  It seems to us that the Court was focussing in these passages on the previous trafficking convictions when considering the question of enhancement.

23.  Further, we do not read the Court in Lau Tsz Ho as saying that an enhancement was warranted for the previous convictions of simple possession: it may have been simply making the point that the applicant in that case had numerous previous convictions, two of which in particular were for trafficking for which some enhancement was thereby warranted.

24.  In any event, whilst we doubt that in the normal course previous convictions for simple possession can aggravate a sentence for trafficking, it is not strictly necessary for us to express a concluded view on the matter.  That is because not only did the judge in the present case not appear to consider that there were any aggravating features in the case before him, but the appellant’s two previous convictions in 2003 and 2009, for which the appellant was sent to a Drug Addiction Treatment Centre, did not in our view justify an enhancement of his sentence for trafficking.

25.  In our judgment, there was no reason to depart from the starting point arrived at arithmetically under the Lau Tak Ming guidelines when applied to the quantity of heroin narcotic concerned.  The starting point should have been 72 months’ imprisonment.  From the starting point he adopted, the judge accorded the appellant a one‑third discount for his plea.  Applying the same discount to the starting point we think was appropriate, the appellant’s sentence becomes 48 months’ (or 4 years’) imprisonment.

26.  In the circumstances, we allow the appeal, quash the sentence of 53 months’ imprisonment, and pass in substitution a sentence of 48 months’ (or 4 years’) imprisonment.