HKSAR v. CHAN CHEE KEUNG

CACC390/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.390 OF 2004

(ON APPEAL FROM HCCC46 OF 2004)

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J U D G M E N T

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Hon Pang J (giving the judgment of the Court) :

1. This is an application for leave to appeal against sentence.  The applicant, Chan Chee Keung, was charged with one count of trafficking in 12.54 grammes of a crystalline solid containing 12.47 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  

2. The applicant appeared before Deputy Judge Toh in the Court of First Instance on 16 August 2004 and pleaded not guilty to the trafficking charge but guilty to simple possession of the specified drugs.  His plea was accepted by the prosecution. 

3. The facts of this case were straightforward.  In the small hours of 15 November 2003, the applicant and a female were intercepted by police officers at the ground floor of Fu On Court in Chaiwan Road.  Subsequent search of the applicant led to the seizure of the drugs forming the subject matter of the charge.  Under caution the applicant admitted that the dangerous drugs were for his own consumption.  When interviewed at the police station, the applicant admitted that he bought the packet of drugs for $2,300.  He also told the police that it was cheaper to buy in bulk.  It is not in dispute that the drugs had a retail value of around $4,000 at the time of the applicant’s arrest. 

4. The deputy judge adjourned the case and called for DATC and background reports. 

5. The applicant was confirmed to be a drug dependant and he was found to be suitable for admission to a Drug Addiction Treatment Centre.  The probation officer, however, found the applicant to be uncooperative and insincere and he did not possess sufficient insight into his drug problem. 

6. On 30 August 2004, the applicant was sentenced by the judge to 28 months’ imprisonment.  This is what she said :

“The amount of ‘Ice’ involved in this offence, if it was charged under trafficking, would have attracted a sentence in the region of 7 years after trial, but because this is for possession, I would have to consider a much lesser sentence.  I accept that these drugs were for the defendant’s own consumption, but I have to consider that this large amount holds a latent risk that these drugs may go to the benefit of other people.

So it is a serious offence and I consider that taking into account the latent risk factor, an appropriate starting point after trial for possession of this amount of drugs would be a sentence of 3½ years’ imprisonment.  And with a plea, giving him the full discount, the defendant would then be sentenced to 28 months’ imprisonment, which is 2 years and 4 months.”

7. Counsel for the respondent, Mr Mackenzie-Ross, who also appeared in the court below, submits that the overall sentence of 28 months’ imprisonment was manifestly excessive.  By computing backwards, it is said that the starting point for possession of dangerous drugs in question and for the latent risk factor involved was also manifestly excessive and that the appropriate sentence should be an order for the applicant to be sent to the Drug Addiction Treatment Centre.  The quantity of “ice” involved in the present case is not insubstantial.  The applicant, while out of a job, was nevertheless prepared to spend some $2,000 to feed his drug addiction.  When interviewed by the probation officer, the applicant adopted an evasive and uncooperative attitude.  This, in our view, would reflect adversely on the likelihood of success of the applicant in receiving drug addiction treatment.  In our opinion, the judge was correct in her decision not to order detention in the Drug Addiction Treatment Centre.

8. We are particularly grateful to Mr William Tam for his careful analysis of the sentencing approach to be taken in cases such as this.  In this regard he has provided us with a number of helpful authorities.  From these it can be seen that the judge’s approach to sentence represented a departure from the procedure laid down by this court in HKSAR v. Wan Sheung Sum, CACC438/1999.  The recommended procedure being that in cases where an offender is being sentenced for possession of a dangerous drug and where there exists a latent risk factor, the sentencing judge should normally determine a starting point for the simple possession charge with the “accepted range being between twelve to eighteen months’ imprisonment”.  This would be followed by an enhancement of the starting point by taking into consideration the existence of the latent risk factor of the drugs finding their way into other hands apart from the offender’s.  The latent risk will be determined from all the circumstances in the particular case including the quantity of drugs seized and the personal circumstances of the offender.  The overall sentence is then adjusted to take into account of the existence of mitigating factors. 

9. In HKSAR v. Mok Cho Tik, CACC165/2000, following Wan Sheung Sum (above), this court again took the view that the starting point for mere possession of a quantity of “ice” for a bona fide user would be in the range of 12 to 18 months’ imprisonment.  As to how a sentencing judge should approach the issue of the latent risk factor, the court in Mok Cho Tik observed (at page 9) :

“… 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 court in Mok ordered an enhancement of 12 months in addition to a starting point of 18 months’ imprisonment for simple possession.  

10. In the present case, the judge gave a global figure of 3½ years’ imprisonment without identifying the respective figures attributable to possession of the dangerous drugs and for the enhancement by reason of the latent risk factor.  On the assumption that the term attributable to possession is one of 18 months’ imprisonment following Mok Cho Tik, the period of the sentence attributable to the latent risk factor in the present case would have been a term of two years’ imprisonment which, it is to be noted, is significantly higher than the sentence attributable to the offence of possessing the “ice” itself.  Whilst such a situation might be justified in certain circumstances, we do not consider that on the present facts such a course was merited.

11. Having regard to the judge’s failure to follow the appropriate steps before imposing sentence in this case, we need to conduct the exercise afresh.  A starting point of 18 months’ imprisonment was appropriate in our opinion.

12. What then is the appropriate enhancement for the latent risk factor in the present case?  The applicant in this case is a drug addict, a fact which is confirmed by the Drug Addiction Treatment Centre report.  He was found together with a female friend in the small hours of the morning.  The drug in question was packed in a plastic bag.  No packaging paraphernalia was seized.  The applicant admitted to the police under caution that the drug was for his own consumption and that he bought it in bulk for the sum of $2,300.  He has one previous conviction for possession of dangerous drugs for which he was fined $2,000.00 in August 2003 and two copyright convictions in 1999 and 2000 for which he was sentenced to the Detention Centre.  He has no trafficking record.  We note, however, that the applicant was unemployed at the time.  We are of the view that the appropriate enhancement for the latent risk factor should be a term of nine months’ imprisonment.  This gives a total of 27 months’ imprisonment before the one-third discount is accorded to the applicant for his plea thus reducing the sentence to 18 months. 

13. For the reasons given, we shall give leave and, treating this hearing as the appeal, the appeal is allowed to the extent that the original sentence of 28 months is quashed and is substituted by a sentence of 18 months’ imprisonment.