HKSAR v. MOK CHO TIK

CACC 165/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 165 OF 2000

(ON APPEAL FROM DCCC 1155/1999)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

The charge

1. This applicant was charged with one offence of possession of dangerous drugs, namely, 15.877 grammes of a crystalline solid containing 15.724 grammes of methamphetamine hydrochloride ("ice"), as well as a spoon with traces of that drug and four bottles containing a liquid with traces of the drug. He pleaded not guilty before HH Judge Wright in the District Court but was convicted and sent to prison for three years. He now seeks leave to appeal against sentence. The application is out of time.

The facts

2. The facts are uncomplicated. The police were keeping an eye on premises at Reclamation Street in Kowloon, and on 21 September 1999 the applicant emerged and was challenged by the police. The police entered the flat and searched it. In a drawer in the living room were two plastic bags as well as a glass bottle, which all contained a crystalline solid; and there was also a plastic spoon in the drawer. In the second drawer of the same desk, they found four more plastic bags with crystalline solid. In a refrigerator there were four bottles with liquid suspected to be a solution of ice. The applicant had keys on him which were keys to the flat. On his arrest he said that the drugs had been purchased by him for his own consumption, and were not for sale to other people, but that sometimes when others came up to the premises they would all smoke drugs together.

The sentence

3. The applicant is aged 22 years. He has previous convictions, namely, for possession and publication of an obscene article; for unlawful sexual intercourse with a girl under 16; and for possession in 1998 of dangerous drugs (again, the drug ice) for which offence he was sent to a drug addiction treatment centre.

4. The trial judge called for a report as to the applicant's suitability for treatment in an addiction treatment centre which suggested that he was no longer drug dependant.

5. The judge adopted a starting point in this case of two years' imprisonment, and increased that by one year to reflect the latent risk factor; in other words, the risk of the drugs being redistributed to persons other than the applicant. In taking a two year staring point the judge referred to an apparent dichotomy in the cases: a split between a line of cases which suggested a starting point of a year to 18 months for simple possession of ice, and those which suggested a starting point of about two years. He thought it hard to reconcile a starting point of 12 months' imprisonment for possession of less than one gramme of ice, with one of twelve to 18 months for possession of one hundred times that amount, and he noted also the comments of this Court about the particular danger that is the drug ice. Whereas, therefore, the standard sentence for possession of a very small quantity of heroin, well under one gramme, was said to be twelve months' imprisonment, he thought that for the quantity of "ice" involved in this case, the appropriate starting point was two years' imprisonment. As for the enhancement factor, he accepted that in this case there was no evidence to suggest supply to others for commercial ends, but noted the applicant's admission that the drugs were also there for others to take, others who came to the flat. There were four bottles in the refrigerator and they had obviously been used to ingest drugs. The natural inference was that they had been used to serve the needs of four persons. He concluded that the applicant made the drug available for recreational purposes on private social occasions. The judge enhanced sentence by twelve months. So the resulting sentence was three years' imprisonment.

The cases

6. It is interesting to note how the starting point came to settle at three years in 1996 and 1997. The Court of Appeal in June 1996 in R. v. Wu Chi Wai, CACC 680/95 was dealing with an unusually large amount (56.12 grammes) which was said to engage a high latent risk factor. It did not state what that factor was in percentage terms. It merely said that the case warranted, before plea, a three year starting point. One notes the facts in that case, namely, a man in a taxi who was stopped at a road block with a quantity that would normally suggest trafficking.

7. In R. v. Chan Shing Hing, CACC 725/1996, the quantity was lower, but still significant, 29.86 grammes. There, too, the court took a starting point of three years, but without saying what the enhancement factor was.

8. In HKSAR v. Lam Wai Yip CACC 214/1997, there was involved a quantity of 19.68 grammes of ice. The court remarked that the latent risk factor was of special importance with the drug ice which is a recreational drug fashionable for use on social occasions. The court added that it was mindful of the fact that, often, immature users of ice had no idea of the horrific effects it can have. The court said that three years was an appropriate starting point "for offences of this kind". The applicant in that case was found in possession in the street.

9. Three years was again said to be an appropriate starting point (including the risk factor) for a man found in the street with 27.23 grammes of ice in the case of HKSAR v. Ng Chi Ming, CACC 450/1997. The court said that the latent risk factor was a real one, for the applicant had a relatively large quantity.

10. It is noteworthy that in none of the cases thus far cited did the Court state what the starting point would be for possession of a quantity which a user would normally have in his possession; a quantity which was not such as to call for enhancement of sentence for the latent risk factor. That seems first to have been stated in HKSAR v. Chan Yat Sing, CACC 777/1997 where Power V-P said :

"The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession. That would be a year to 18 months. That sentence then has to be enhanced because of the latent risk factor."

In that case, the quantity in the applicant's premises was large indeed, namely 95.36 grammes, so that the sentence said by the court to be appropriate, the latent risk factor being very considerable, was three and a half years' imprisonment.

11. In HKSAR v. Lau Chi Chiu, CACC 395/1998, the applicant had been found in possession of 63 grammes in the course of a raid on his flat. The trial judge remarked on the difficulties which the cases cited above had presented her. She followed Chan Yat Sing, and said that the appropriate sentence was three years. That had been enhanced from a starting point of 18 months to reflect the significant latent risk factor. The Court of Appeal said that she could not be criticized. It is instructive to note that the court in that case said that :

"The only other question that has to be considered is the amount to be added to the sentence to reflect the latent risk attaching to a defendant having in his possession a large quantity of dangerous drugs and the possibility of his succumbing to temptation and trafficking in the drugs. It is not possible to lay down any hard and fast rules for this. The main factors which will have to be weighed are the quantity and type of drug and the living conditions of the defendant."

12. HKSAR v. Lai Kam Sang, CACC 578/1998 was heard six months later, in March 1999. There the quantity involved was 26.61 grammes. The court said that the accepted range for simple possession of this drug was 12 to 18 months' imprisonment. In that case the trial judge should have taken a starting point "no higher" than 18 months and added a year for the latent risk factor. A doubling of the starting point would not, the court said, be acceptable for a quantity such as this. The resulting sentence before any discount for plea or intended plea would have been one of 30 months' imprisonment.

13. The starting point of 18 months was again adopted in HKSAR v. Chew Sik Pok, CACC 502/1998. That judgment was delivered in April 1999. The amount found in the possession of the applicant was 24.12 grammes. He had eight previous convictions for simple possession, and none for trafficking. The evidence before the court was that the average dose per unit for an addict in Hong Kong was 0.7 grammes, and that the quantity with which the applicant in that case was found would have lasted him six weeks. The court there noted that he was clearly a drug addict, and had no convictions for trafficking, and that that he was also in employment at the time of his arrest :

"These are, when we come to consider what is known as the latent risk factor, important considerations .... We are satisfied that we must start at the currently accepted sentence for simple possession which is 18 months and must then if appropriate enhance that sentence for latent risk. In this case given the amount and given the time which the applicant admits that he would have had that amount in his possession, reducing of course from day to day, we are satisfied that there is a latent risk but that it was not one of any real gravity. ... We are satisfied given that his original intention was to take the drugs to his home where he usually kept them, that he is in regular employment and that he has clearly been an addict for a number of years without any conviction for trafficking that the latent risk should attract a sentence of a further six months', thus resulting in a total before discount for mitigation, of 24 months."

14. Very similar sentiments are to be found in HKSAR v. Wan Sheung Sum, CACC 438/1999, a case which concerned the possession of 34 grammes of heroin. In that case the court said that the normal starting point for heroin or ice was between one year and 18 months, and stated again that the latent risk factor would depend on all the circumstances including the quantity possessed and the personal circumstances of the offender. In that case, too, the offender had previous convictions for possession but he kept the drugs at home and was in full employment. The court there said that a starting point of 16 months was appropriate and that the risk factor warranted an enhancement of an additional six months.

Analysis

15. In his analysis of the cases, the sentencing judge has noted a suggested divide in the sentencing approach by the Court of Appeal between the first four cases we have cited, namely, the cases up to and including Ng Chi Wing in December 1997, and those after. The judge has, it seems clear, read those cases as suggesting a starting point of three years imprisonment taking into account an enhancement factor. He then went on to say this :

"Historically therefore it seems that as late as December 1997 the recognized pre-enhancement starting point for some 19 grammes of ice was one of two years imprisonment."

As for the reference to 12 to 18 months as the starting point in Chan Yat Sing in March 1998, and the cementing of that starting point thereafter, the judge suggested that what was said was obiter; and that, in any event, "the Court of Appeal did not seek to lay down this range as a guideline."

16. There are, however, a number of answers to the judge's careful analysis. It is noteworthy that in not one of the first four cases up to and including Ng Chi Wing did the Court state in terms the starting point without the enhancement factor; nor in any of those cases was the enhancement factor quantified. None of those cases was approached on the basis of the three stage approach which has since been stipulated as the necessary approach in Wan Sheung Sum. Nor in any of the earlier cases was there the close discussion of the variety of factors which can affect or determine the latent risk factor; which consideration is a hallmark of the later decisions. Nor do we think that the decisions of the Court of Appeal in 1998 and thereafter can, in suggesting a starting point of 12 to 18 months for simple possession of ice, be said to be obiter. In Chan Yat Sing the court said that the 12 to 18 months' imprisonment was the "starting point in cases such as this...". In Lau Chi Chiu the court referred to that range as "the accepted range", and similar terms have been used in other cases. It is a range that has carefully been discussed in conjunction with risk factors and with evidence about consumption rates for addicts, and we do not think that in the absence of evidence of a growing problem that we are justified at this stage in changing the course thus set by so many cases.

17. Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.

This case

18. In the instant case, the quantity involved was 15.724 grammes. The judge took a starting point of two years' imprisonment; a starting point higher than in any of the cases cited which post-date Ng Chi Ming; higher, for example, than the starting point adopted in many of the cases in which much larger quantities were found, some on the offender in the street, and higher than one offender who was in possession of 24 grammes and had eight previous convictions, whereas this applicant has one prior conviction for possession of dangerous drugs.

19. We think that an appropriate starting point in this case was 18 months' imprisonment. The judge dealt with the risk factor. We do not know whether the applicant was in employment at the time, but we proceed on the basis found by the judge that there was a risk factor but not of commercial supply; rather of social consumption by others visiting the premises for that purpose. Nonetheless, on the facts of this case, the risk factor was self-evidently high. We think that the risk factor warranted an enhancement by 12 months' imprisonment. Accordingly, the sentence before mitigation, should have been one of two years and six months' imprisonment. Subject to the question of mitigation, that is the sentence which the judge should have imposed.

20. Having regard to the mitigation which we have heard and which was not before the trial judge, but which should have been, the appropriate sentence is two years' imprisonment.

21. The respondent does not oppose leave on the basis of delay, and the applicant is given leave to appeal out of time against sentence. We treat the hearing as the appeal, and the appeal is allowed to this extent, that the sentence of the judge is set aside and substituted by a sentence of two years' imprisonment.