HKSAR v. CHEUNG CHI KIN

CACC 35/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 35 OF 2008

(ON APPEAL FROM DCCC 952 OF 2007)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  On 19 July 2007, the police arrested the appellant, Cheung Chi-kin outside his residence and found, in his right hand, 3 plastic bags each containing 10 packets of cocaine. The appellant admitted that he intended to sell some of the drugs to others “to earn a meal”.

2.  The police, upon a further search of the appellant’s residence, found further resealable plastic bags and one electronic scale with traces of cocaine.

3.  The total quantity of cocaine seized from the appellant was 11.61 grammes of solid fragments containing 8.55 grammes of cocaine and the street value of the cocaine was about $9,000.

4.  The appellant appeared before Deputy Judge Dufton in the District Court and pleaded guilty to trafficking in the 8.55 grammes of cocaine. The appellant claimed that, at the time of his arrest, he was on his way to a bar where he would sell some of the cocaine to his friends and would consume some himself.

5.  Having had a Newton hearing, the judge accepted that some of the cocaine was intended for the appellant’s own consumption, but took the view that “this makes only a slight difference to the sentence”.

6.  The judge, relying on R v Lau Tak-ming [1990] 2 HKLR 370, which applies to cocaine trafficking (see AG v Pedro Nel Rojas [1994] 1 HKC 342), adopted an initial starting point of 4½ years’ imprisonment.

7.  The judge, having reduced the starting point by 6 months to 4 years to reflect that the appellant intended to use part of the cocaine for his own consumption, increased the starting point by 9 months to 4 years and 9 months on the basis that the appellant was a persistent offender.

8.  The judge pointed out the appellant’s two previous drug trafficking convictions, in 1994 and 2000, for which he was sentenced to 8 years, and 6 years and 4 months’ imprisonment respectively. The judge further noted that the appellant was sentenced to DATC in 2006 for possession of a dangerous drug. 

9.  The judge then reduced the starting point of 4 years and 9 months by one-third and sentenced the appellant to 3 years and 2 months’ imprisonment on account of the appellant’s guilty plea.

10.  The appellant, having been granted leave, appealed against sentence.

11.  On 4 November 2008, we dismissed the appeal and indicated that we would hand down our reasons in due course. This we now do.

Grounds of Appeal

12.  Acting in person and in his homemade grounds, the appellant argued that the judge should not have increased the starting point by 9 months because of his previous convictions.

13.  The appellant submitted that the initial starting point of 4½ years was already on the higher end when the total quantity of cocaine was just 8.55 grammes. The appellant further submitted that he had been punished for his previous convictions and it was unfair for the judge to again punish him by increasing the starting point to 4 years and 9 months.

Discussion

14.  Silke VP in Lau Tak-ming (supra), having laid down the tariffs for a heroin trafficking offence, namely 2-5 years’ imprisonment for up to 10 grammes of narcotic, further commented at p 386E:

“Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf.” (Emphasis added)

15.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the Court of Appeal expressly stated that “persistent re-offender” could be an aggravating factor.  Stuart-Moore VP said at p 833C:

”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.”

16.  The starting point for sentence in drug trafficking cases should primarily reflect the quantity of drugs, however, the authorities clearly support the contention that in case of a persistent re-offender, particularly of the same kind of offence, the court is entitled to adjust upward the starting point when “the sentences …in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest”.

17.  The appellant had been sentenced to long-term imprisonment in 1994 and 2000 for drug trafficking offences. In 2006, the appellant was again sentenced to DATC for possession of a dangerous drug. The present offence was committed shortly after his release from DATC.

18.  We were unable to say that the increase of the starting point by 9 months, though a fairly significant increase, was totally unjustified as a matter of principle. We also did not agree with the appellant’s suggestion that the initial starting point of 4½ years was excessive.

19.  Ms Sin for the respondent suggested that the 1/3 discount for the appellant’s guilty plea was over-generous when the appellant’s claim that part of the cocaine was meant for his own consumption, had led to the Newton hearing, which was resolved only partly in favour of the applicant.

20.  Ms Sin suggested that if the appellant had only asserted that a small part, instead of one-third, of the cocaine was for his own consumption, the prosecution might have agreed to it and the Newton hearing would be unnecessary. Ms Sin argued that the appellant had wasted the court’s time and therefore should not have been given the full one-third discount for his guilty plea.

21.  Personal consumption of drugs, which are being trafficked, may make a difference to sentence (see R v Chan Mung-lung [1992] 2 HKLRD 127, R v Chung Kam Fai [1993] 1 HKC 41).

22.  In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, Stuart-Moore VP said at p 79:

“Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue..”

23.  The appellant wished to put forward in mitigation that he intended to consume some of the cocaine himself. The prosecution did not accept his assertion and the judge had a Newton hearing to determine the issue.

24.  The judge concluded that the appellant would consume some of the cocaine and on that basis reduced the starting point by 6 months.

25.  The issues at the Newton hearing were resolved, at least partially, in the appellant’s favour. In our view, the credit due to the appellant for a guilty plea should not be reduced.

26.  In HKSAR v Chong Chee Meng CACC 315/2007, this court, having considered R v Underwood [2005] 1 Cr App R 178, made a similar ruling.

27.  We did not agree with Ms Sin’s suggestion that the 1/3 discount for the appellant’s guilty plea was over-generous.

28.  However at the end of the day, we were only concerned with whether the ultimate sentence was a proper sentence and we would only interfere if the sentence was manifestly excessive.

29.  Bearing in mind the nature of the charge, the quantity and number of packets of the drug involved, the circumstances in which the offence was committed, and the background of the applicant, including his previous conviction of drug offences, we were not persuaded the ultimate sentence of 3 years and 2 months, despite the appellant’s guilty plea, was manifestly excessive.

30.  There was no valid basis upon which we could reduce the sentence, and we therefore dismissed the appeal against sentence.