R. v. CHOI TUNG CHEUNG

IN THE COURT OF APPEAL

1993, No. 39
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Chiu Hung Wong (Criminal Appeal No. 39 of 1993) was convicted upon his own plea of possession of a dangerous drug, contrary to sections 8(1) (a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. The particulars alleged that he had in his possession 28.29 grammes of a mixture containing 14.37 grammes of salts of esters of morphine. The offence was stated to have taken place on 1st July 1992 and sentence of 2 years imprisonment was passed on 21st January 1993.

3. Choi Tung Cheung (Criminal Appeal No. 40 of 1993) was convicted upon his own plea of possession of a dangerous drug, contrary to sections 8(1) (a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. The particulars were that he had in his possession 30.41 grammes of a mixture containing 16.31 grammes of salts of esters of morphine. The offence was stated to have taken place on 10th October 1992 and sentence of 2 years imprisonment was passed on 13th January 1993. In his case, that sentence was ordered to run consecutively to a sentence he was then serving.

4. Both sought leave to appeal against their respective sentences and, as the same point arose, we dealt with both applications at the same time. The issue was consideration of the amendment to the Dangerous Drugs Ordinance which came into effect on 26th June 1992 - Ordinance 52 of 1992 - which deleted the penalty section which then appeared and which read:

"(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable on conviction on indictment or on summary conviction to a fine of $10,000 and, subject to section 54A, to imprisonment for 3 years."

and replaced it by adding, after the word "liable", the following provisions:

"(a) on conviction upon indictment to a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years; or

(b) on summary conviction to a fine of $100,000 and, subject to section 54A, to imprisonment for 3 years."

5. Both these convictions took place in the District Court and therefore the provisions of section 8 subsection (2) (a) applied.

6. The conviction of Chiu Hung Wong was in a trial conducted by His Honour Judge Jackson and the conviction of Choi Tung Cheung was in a trial conducted by His Honour Judge Lugar-Mawson.

7. First the facts. Chiu Hung Wong was in a taxi which was stopped at a road block, set up by a team of police officers at Po Kong Village Road outside the Diamond Hill Funeral Parlour in Kowloon. He was thought to behave suspiciously and one of the police officers asked him to alight from the taxi. He was searched and in his right front trousers pocket was found a "Marlboro" cigarette packet containing the drugs specified in the charge.

8. Chiu Hung Wong, aged 34, had a lengthy criminal record going back to 1972. In 1973, 1984 and 1986 he was convicted of simple possession of dangerous drugs. In 1982, twice in 1987 - on one of which convictions a Drug Addiction Treatment Centre order was made - in 1988 and 1991 he was convicted of possession of dangerous drugs for the purpose of unlawful trafficking. Before passing the sentence he did Judge Jackson called for a background report and a report upon the applicant's suitability for admission to a Drug Addiction Treatment Centre. He considered both reports - and he bore in mind, in particular, that the report from the Commissioner of Correctional Services stated that Chiu Hung Wong was a drug dependent and considered suitable for admission to a Drug Addiction Treatment Centre. In the suitability report the conclusion read, and we set it out in full:

"Defendant attributed his deviant behaviour to the insufficient parental supervision during his teenage. Being the eldest child of his parents, he said that he had to take care of his younger siblings from time to time for his parents since he was a child. During the interview on 2/1/1993, he was shown to have sense of remorse in respect of his previous misbehaviour and affirmed that he would mend his ways in future. By observation, he was not an incorrigible person. In view of such and for his far-reaching benefit, a compulsory abstinence treatment programme is considered to be the most beneficial way for him. However, for the information of the court, Defendant is required to appear before the San Po Kong Mag. on 17/2/1993 for an outstanding charge '(A) & (B) Trafficking in D.D.' under Case No. SPC504430/92. The court may take this into consideration before imposing a DATC Detention Order on him."

9. The judge stated that he had to consider:

"... not only what is in his interests - but also what is in the public interest, and in considering this, I bear in mind that the Defendant was (as I say) sent to a Drug Addiction Treatment Centre in 1987 - and that appears to have benefited him not at all, his dangerous drugs habit and offences appear to have continued unabated."

He then made reference to the recent alteration in the maximum sentence for an offence of this nature and stated of it:

"Plainly the legislature takes a serious view of such offences."

10. He ignored the reference to the required appearance of the applicant in San Po Kong Magistracy.

11. Choi Tung Cheung was seen lingering around the area of the Yam Hop Hing Industrial Building in Fui Yiu Kok Street by patrolling police constables. He was holding a white plastic bag. He was stopped and searched and in the bag were found 9 transparent plastic bags, each of which in turn contained 11 small packets of dangerous drugs wrapped in drinking straws. This makes a total of 99 small packets. These packets contained the quantity of drugs specified in the charge.

12. The applicant, aged 26, had a long criminal record. The first conviction recorded was in 1982. In 1985 he was first convicted of simple possession of dangerous drugs and a Drug Addiction Treatment Centre order was made and, later in 1985, he was convicted of two offences of smoking dangerous drugs and possession of equipment fit and intended for smoking dangerous drugs and a further Drug Addiction Treatment Centre order was made. In 1987 he was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to imprisonment for 2 1/2 years. Also in 1987 - and both these convictions took place on different dates in February of that year - he was again convicted of possession of dangerous drugs for the purpose of unlawful trafficking and directed to serve 12 months imprisonment consecutive to the 2 1/2 years. In 1989 he was convicted of possession of dangerous drugs and another offence of possession of apparatus fit and intended for smoking of dangerous drugs. A further Drug Addiction Treatment Centre order was made. Then, on 1st November 1991, he was convicted, on separate charge sheets and in the Magistracy, of three offences of possession of dangerous drugs coupled with one offence of resisting arrest. Sequentially he received sentences of 9 months imprisonment, 9 months imprisonment and 1 months imprisonment concurrent and 9 months imprisonment all to run concurrently. On 9th December 1992 he was convicted, also in the Magistracy, of four further offences of possession of dangerous drugs coupled with possession of an instrument fit for the injection of dangerous drugs. He received, sequentially, 3 months imprisonment, 9 months imprisonment consecutive; 3 months consecutive and two terms of 3 months imprisonment concurrent between themselves but consecutive to the others.

13. It would appear that from the dates of those offences which Mr. Macrae, who appeared on his behalf in this court, has been good enough to furnish us with, this instant offence was committed while on bail. The effect of all these convictions and sentences would be, this sentence also being, as we said, made consecutive, that the applicant would serve in all a total of 3 1/2 years imprisonment.

14. Judge Lugar-Mawson, with his customary care, adjourned the issue of sentence - the plea having been entered on 21st December 1992 - for a short period in order that he could have the applicant's full criminal record as he was not then in possession of the details of the sentences the applicant was at that time serving. He noted that the series of imprisonment imposed on 9th December 1992 totalled 18 months imprisonment. He then called for a Drug Addiction Treatment Centre suitability report, although he was not bound to do so under the provisions of section 54A of the Dangerous Drugs Ordinance. On 13th January the sentencing process resumed and the judge was then in possession of that suitability report. The applicant was thought to be drug dependent but a Drug Addiction Treatment Centre order was not available as a sentencing option under the provisions of section 54A. The sentencing judge, noting that Mr. Wong, who appeared for the applicant both here and below, claimed that the drugs were possessed for the applicant's consumption went on to consider carefully and in detail the effect of the amendment, by Ordinance 52 of 1992, to the sentencing provisions of section 8 of the Ordinance.

15. Prior to 26th June 1992 the thrust of sentences passed upon drug addicts for simple possession of dangerous drugs was towards their rehabilitation. The provisions of section 54A which, as far as they are material read:

"(1) Subject to subsection (1A), no sentence, other than a non-custodial sentence, shall be imposed on a person for an offence against section 8 or 36 unless the court has first considered a report of the Commissioner of Correctional Services on the suitability of such person for cure and rehabilitation and on the availability of places at addiction treatment centres, as defined in the Drug Addiction Treatment Centres Ordinance (Cap. 244).

(1A) Subsection (1) shall not apply where a person is convicted of an offence against section 8 or 36 or of offences against both those sections and that person -

(a) is convicted in the same proceedings of any other offence and is sentenced for that other offence to imprisonment for more than 9 months; or

(b) is at the time of conviction serving a term of imprisonment of more than 9 months, but, in such a case, the court may if it thinks fit consider a report specified in subsection (1) before sentencing that person for an offence against section 8 or 36."

support this, as did the sentencing policy of the courts.

16. A "non-custodial sentence" is defined as meaning a fine, a probation order or a suspended sentence of imprisonment (subsection (4) of section 54A).

17. "Section 36" prohibits the possession of any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug. The sentencing provision of section 36, which remain unamended, is a fine of $10,000 and imprisonment for 3 years.

18. It is noteworthy that section 54A also remains unchanged in the amending legislation.

19. If a custodial sentence were imposed, such sentence normally ranged between 9 and 12 months imprisonment - R. v. So Ma Kwai, Magistracy Criminal Appeal No. 466 of 1992, as yet unreported, which in turn made reference to, and cited from, The Attorney General v. Chan Tak King [1989] 2 HKLR 428, and R. v. Lee Chi Wai, Magistracy Criminal Appeal No. 810 of 1991. The section 8 offence being considered in So Ma Kwai occurred on 22nd February 1992. However it is now clear that the legislative temper is for very much stiffer penalties and the incarceration of those in possession of dangerous drugs for a much longer period than that earlier sentencing norm and the emphasis has moved away from the prior aim of rehabilitation, though the latter option is not removed in the light of the retention of section 54A unamended.

20. One of the difficulties which arises from the very substantial increase in the maximum sentence for section 8 offences is that the new maximum impinges on the guidelines set out in R. v. Lau Tak Ming [1990] 2 HKLR 370 which considered, and gave guidance on, tariff sentences for offences of possession of dangerous drugs for the purpose of unlawful trafficking, applicable also to the offence of trafficking. For up to 10 grammes of narcotic 2 to 5 years imprisonment was indicated: for between 10 and 50 grammes 5 to 8 years was indicated.

21. It had been suggested in Lau Tak Ming that the sooner there was one offence - trafficking -, instead of the two which then existed, the better.

22. In R. v. Sin Yau Ming [1992] 1 HKLR 127 this court struck down certain of the presumptions then contained in sections 46(c), 46(d) (v), 47(1) (a) and 47(1) (d) of the Ordinance as being contrary to the Hong Kong Bill of Rights Ordinance, Cap. 383. Part of the effect of that was that the Crown could no longer rely on possession of more than 0.5 of a gramme of narcotic or more than five packets containing the narcotic as raising a presumption in its favour.

23. The amending legislation - neither the draftsman nor the legislature taking the broad hint, contained at p.144 L44 of Sin Yau Ming, as to two grammes being the trigger point in Singapore which, on the evidence in Lau Tak Ming, was greatly in excess of the daily dose of the normal addict in Hong Kong - did not seek to re-align the presumption point but instead abolished the section 7 offence of possession for the purpose of unlawful trafficking - thus taking note of what was said in Lau Tak Ming - amended the definition of trafficking by adding after the words "the dangerous drug" the phrase "or possessing the dangerous drug for the purpose of trafficking" and, as indicated, vastly increased the sentence for simple possession.

24. It is the duty of the courts to loyally carry out the laws as enacted by the legislature. It is for the consideration of this court to endeavour to give guidance on how this changed situation should be effected by the courts of the territory.

25. Having considered the rationale of the old sentencing policy and finding that it no longer applied Judge Lugar-Mawson went on:

"That is not to say however that a Judge should close his eyes to the obvious dangers and temptations that the possession of a large quantity of drugs in the hands of an addict may present both to himself and society. It is known and I would be ignoring over 12 years experience in criminal practice in Hong Kong if I ignored it, that addicts are persons who are easily tempted and who do sell their stock of dangerous drugs to others in order to fund not only their own addiction, but also their daily living expenses. If their stock is small the risk of sale is slight, if it is large the risk is greater. Formerly the law recognised this regrettable feature of human behaviour by providing an evidential presumption based on weight or packaging that went to determine the offender's guilt. Such a presumption, going as it did to establish guilt, was unsustainable under the Bill of Rights Ordinance. That is not to say however that the Judge when it comes to sentencing, where the question of guilt or innocence have been disposed of, should not have regard to this feature and recognise the potential harm to society that possession of large quantities of dangerous drugs poses and take the weight of the dangerous drugs possessed by the offender into account when determining the length of his sentence."

That, although no evidence was led in the trial court or presented to us indicating an increase in possession offences, is a rationale which we would accept as being proper. Provided that, when the Crown, as it did here, charges only a section 8 offence the sentencing court bears in mind that there is still no offence known to law as "unproven trafficking", courts can, in our judgment, properly give effect to the intentions of the legislature by imposing sentences higher than the norm which pertained before 26th June 1992 and which take into account the quantity of the drug concerned.

26. Turning now to the individual appeals.

27. Mr. Wong for Chiu Hung Wong (Criminal Appeal 39/93) argues that the policy of the law should remain aimed at rehabilitation rather than punishment but accepts that, in the light of the amendments by the legislature there can be an upward revision of the prior sentencing norms. The question is: by how much?

28. The quantity here was 28.29 grammes of a mixture containing 14.37 grammes of salts of esters of morphine - the narcotic content is therefore considerable. The court now should not ignore the latent risk factor in a quantity as large as this.

29. In our judgment the sentence of 2 years imprisonment is neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence is dismissed.

30. Mr. Macrae for Choi Tung Cheung (Criminal Appeal 40/93) submits that the sentencing judge erred in sentencing the applicant on the basis of a perceived risk of trafficking while accepting that the drugs were for his own consumption and that the charge was simple possession. Further the sentencing norm was 6-9 months.

31. While we have dealt with those general issues in the course of this judgment the fact that the Crown did not see fit to charge a section 4 trafficking offence in the light of the multitude of packages surprises us. The latent risk of danger to the public was substantial. But that having been said the applicant should not be sentenced as if the charge had been brought under section 4. We do not consider the trial judge to have fallen into that error. Mr. Macrae in argument accepted that the old sentencing norms are now outdated.

32. Mr. Macrae also complains that, even though caught red handed, some credit should have been given the applicant for his guilty plea. This the sentencing judge failed to do. We agree. However clear cut the evidence may be - in effect the accused accepting the inevitable by his plea - nevertheless pleas of guilty are to be encouraged and some discount should be given.

33. Mr. Macrae further submits that the sentencing judge did not stand back far enough when considering totality when he ordered his sentence of 2 years imprisonment to run consecutively to the 18 months the applicant was then serving. We agree. The cumulative sentence of 3 1/2 years is, in our judgment, too long.

34. To give effect to our views concerning Mr. Macrae's final two points we would leave the sentence of 2 years undisturbed but direct that 8 months of that sentence run concurrently with the 18 months sentence imposed on 9th December 1992 giving a totality of 2 years and 10 months imprisonment.