HKSAR v. LI WAI KEUNG

CACC178/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 178 OF 2011

(ON APPEAL FROM DCCC 1356 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Lunn J (giving the Judgment of the Court) :

1.  The applicant sought leave to appeal the sentence of three years’ imprisonment imposed on him on 13 April 2011 by Judge Longley in the District Court, following his conviction on his plea of guilty to a single charge of unlawful trafficking in a dangerous drug on 18 October 2010, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

THE FACTS

2.  The applicant accepted that when he had been stopped by plainclothes police officers in Lai Chi Kok Road in the early afternoon of 18 October 2010 a re-sealable plastic bag containing 50 packets of a mixture containing heroin hydrochloride was found in his shirt pocket and $2,147 in cash was found on his person.  Earlier, he had entered and then exited a building at 72-74 Lai Chi Kok Road.  Having been arrested and cautioned the applicant admitted that he had just bought “white powder” from someone inside the building.  He claimed that it was for his own consumption, although he admitted that he would sell what he did not consume to friends to earn a profit of $10 a packet.  The contents of the re-sealable package were analysed and found to be in total 8.45 g of a mixture containing 6.28 g of heroin hydrochloride. The “street” value of those dangerous drugs was $6,641. 

REASONS FOR SENTENCE

3.  Having indicated that he declined to accept the mitigation advanced on behalf of the applicant, namely that the majority of the dangerous drugs were for self-consumption, the judge conducted a “Newton” enquiry, in which he received evidence from the applicant and his wife.  

Newton hearing

4.  It was accepted that the applicant had multiple criminal convictions beginning in 1983 including 11 relating to dangerous drugs, of which two were convictions for unlawful trafficking in a dangerous drug.  The applicant was unemployed at the time of the commission of the offence, but in receipt of about $3,000 in CSSA welfare payments.  He said that he had bought the 50 packets of heroin hydrochloride for $5,000.  He did so because he was a drug addict and he anticipated beginning work as a decoration worker in the near future and wanted to ensure that he had a ready supply of dangerous drugs.  He consumed about three packets of heroin hydrochloride per day.  About 80% of the total quantity that he bought was for self-consumption.  He would sell the rest to such friends of his who found themselves in urgent need of the dangerous drugs at a profit of $10 per packet. 

5.  At his request his wife had deposited monies into his bank account by way of ATM transfers : $15,000 on 26 September and $5,700 on 15 October 2010.  He had withdrawn the latter deposit on 18 October 2010 and used some of those monies in the purchase of the heroin hydrochloride.

6.  Madam Ye Tugn, the applicant’s wife, testified that she had made those deposits of monies in cash into his account by ATM transfers at the applicant’s request.  She said that at the time she was employed as a security guard on a salary of $6,600 per month.  The two sums of monies that she deposited in cash into the applicant's account did not come from her own bank account.  They had their provenance in her mother in the Mainland.  

7.  The judge stated that he disbelieved the applicant’s account, in the context that it was for his own consumption, that he had arranged to buy 50 packets of heroin hydrochloride, noting that given the applicant’s long history of convictions in respect of dangerous drugs offences, he would have been aware of the consequences of being found in possession of such a multiplicity of packets. 

8.  The judge noted discrepancies in the testimony of the applicant and his wife.  The applicant said that his wife did not know of his drug addiction.  In contrast, his wife testified that she knew of his drug addiction at the material time.  The applicant testified that he had told his wife that he wished to borrow the sum of $15,000 to lend to a friend in the decoration business so that he could buy material and tools, whereas his wife said she was not told at first why the money was needed and then, two days later, the applicant had told her that the money was needed to repay a debt. 

9.  The judge said that he did not believe that the applicant’s wife, earning a salary of $6,600 per month, would give or lend the two sums of money to the applicant, knowing him to be a drug addict, without explanation as to why the money was needed. 

10.  Furthermore, the judge determined that he could place no weight on the applicant’s evidence in so far as it was exculpatory, including the testimony as to the source of the two deposits of monies.  Similarly, he attached no weight to Madam Ye’s evidence in respect of the latter issue. In the result, the judge concluded :

“Viewing the totality of the evidence, including the number of packets or pellets in your possession, the fact that you are on public assistance, the street value of the drugs found on you and the amount of cash found on you, I am satisfied that while a minor amount may have been for your own consumption, the majority was for the purpose of trafficking.”

Starting point

11.  The judge stated that, having regard to the applicant's “history of trafficking”, if it had not been for his finding that it was possible that some of the dangerous drugs were for the applicant’s own consumption, he would have taken a starting point for sentence of four a half years’ imprisonment.  However, because of that determination, he stipulated a starting point for sentence of four years’ imprisonment. 

Discount

12.  The judge afforded the applicant a discount of 25% from that starting point for sentence to reflect his plea of guilty, reduced from the normal one third discount by the fact that he had rejected the evidence advanced by the applicant in the Newton hearing. 

Sentence

13.  Accordingly, the judge sentenced the applicant to three years’ imprisonment. 

GROUNDS OF APPEAL AGAINST SENTENCE

14.  In the grounds of appeal against sentence it was submitted on behalf of the applicant that the judge had erred in rejecting his evidence that the majority of the dangerous drugs was for self-consumption. 

15.  Next, it was contended that the judge had erred, in rejecting the evidence of the applicant’s wife that she had deposited the two sums of monies into his account, in relying on discrepancies in their respective accounts as to the reason given to the applicant’s wife for the need for the money.  Further, the judge did not take into account her unchallenged testimony that the provenance of the monies was her mother in the Mainland. 

16.  Then, it was submitted that the judge had erred in identifying as appropriate a starting point of 4½ years’ imprisonment, if he had not found that it was possible that some of the dangerous drugs were for self consumption.  That starting point, departed significantly from the proper application of the tariffs for sentence identified by this court in R v Lau Tak Ming [1990] 2 HKLR 370 to the facts of the instant case. 

17.  Finally, it was submitted that the judge erred in “enhancing” the starting point taken for sentence, by reason of the regard he had to the fact that the applicant had a “history of trafficking”.  In fact, the applicant had only two convictions for that offence, one in 1988 and the other in 2003.  The gravity of the offence for which the applicant was sentenced did not justify a departure from the tariffs identified by this court in Lau Tak Ming. 

A CONSIDERATION OF THE SUBMISSIONS

18.  Clearly, the judge was entitled to reject the evidence of the applicant and his wife that the latter was the source of the deposit of a total of $20,700, part of which monies he used to buy the dangerous drugs the subject of the charge.  The applicant was unemployed and in receipt of welfare benefits.  His wife earned $6,600 per month.  The sum of $20,700 represented over 3 months’ salary to Madam Ye.  Further, the money did not come from her bank account, but was said to have been provided in cash by the applicant’s wife’s mother in the Mainland.  There was no supporting evidence of their testimony.  Their conflicting accounts, of what it was Madam Ye had been told was the need for the money, had the hallmarks of a fabricated account.  It would have been astonishing if the judge had done other than reject such evidence. 

19.  The fact that the applicant’s bank account statement evidenced deposits and withdrawals of money by itself established nothing.  Given that the applicant admitted that he intended selling part of the dangerous drugs of which he had been found in possession, the issue for the judge was only as to whether or not the proportion of the dangerous drugs for self-consumption was the majority, 80% as the applicant had claimed, or a minor portion, as the judge found.  Evidence of a legitimate source of funding was relevant to a consideration of the applicant’s claim.  Rejection of the evidence advanced by the applicant and his wife in that respect was a rejection of their evidence of a legitimate source of available funding to the applicant. 

Starting point

20.  In the process of articulating the steps taken that lead to the imposition of the eventual sentence on the applicant the starting point, as the phrase suggests, is the first step.  Next, after the starting point has been identified and stipulated it may be necessary to address considerations of discount to or enhancement of the starting point.  In this case, the judge conflated the two steps and identified an initial starting point, of four a half years’ imprisonment, that contained within it an enhancement to reflect the applicant's “history of trafficking”.  Then, he identified a lesser starting point, four years’ imprisonment, to reflect his finding that it was possible that some/minor amount of the dangerous drugs were for the applicant’s own consumption. 

21.  The application of the tariffs for sentence identified by this Court in Lau Tak Ming, namely sentences within the range of 2 to 5 years’ imprisonment for unlawfully trafficking in amounts of heroin hydrochloride of up to 10 g, to the 6.28 g of heroin hydrochloride in the instant case results in a starting point of three and a half years’ imprisonment. 

Enhancement

The applicant’s criminal record

22.  The applicant, a fifty year-old man who had been born in Hong Kong, has no less than nine previous convictions for the offence of possession of dangerous drugs, for which he had been dealt with by the courts on seven occasions beginning in 1985.  On the first occasion, for two offences, he had been fined.  In 1988, for a third offence of possession of dangerous drugs he was sentenced to 6 months’ imprisonment, ordered to be served consecutively to a sentence of two years’ imprisonment imposed in respect of a conviction of possession of dangerous drugs for the purpose of unlawfully trafficking.  In 1991 and 1992, he was convicted of three further offences of possession of dangerous drugs and first made the subject of a Drug Addiction Treatment Centre order and then sentenced to short periods of imprisonment respectively.  Then, in 1994 he was fined for yet another offence of possession of dangerous drugs.  Thereafter, until his conviction for unlawfully trafficking in dangerous drugs in 2003 the applicant was not convicted of any criminal offences.  On that latter occasion, he was sentenced to 40 months’ imprisonment.  Then, in 2007 he was convicted of two other offences of possession of dangerous drugs and made the subject of a Drug Addiction Treatment Centre order. 

23.  As was noted in the judgment of this court in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833, although in sentencing an offender it was important that the court have regard to the offences for which he was being sentenced, nevertheless the constant repetition of such offences by the offender was relevant to a consideration of the gravity of the offences before the court.  Such behaviour evidenced the fact that the sentences imposed in the past had proved to be no deterrent at all.  Of those circumstances, Stuart-Moore VP said (page 834 A-C) :

“ … the starting point … will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender.”

24.  In that case the applicant was sentenced in 1997 following his trial for two offences of unlawful trafficking in dangerous drugs to fourteen years’ imprisonment.  As was noted in the judgment (page 833A) not only had that applicant twenty-two previous convictions but also, importantly, he had been sentenced in 1988 and 1992 to five years and six and a half years’ imprisonment respectively, for convictions of unlawful trafficking in dangerous drugs.  Of that, the court said (page 833D) :

“... 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.”

25.  Of course, that applicant had been before the courts on three separate occasions within a period of about nine to ten years for serious offences of unlawful trafficking in dangerous drugs.  Sentences of five years’ and six and a half years’ imprisonment had not deterred him from committing the offences the two offences for which he was then sentenced to 14 years’ imprisonment.  Allowing for remission of sentence for good behaviour, it is clear that on each occasion the applicant had re-offended within a relatively short time of being released from serving a substantial term of imprisonment. 

26.  Given that the applicant's conviction for the offence of possession of dangerous drugs for the purpose of unlawful trafficking occurred in June 1988, over 21 years prior to the instant offences, and that the only other conviction for unlawful trafficking in dangerous drugs was recorded in 2003, obviously the 1988 offence can be excluded from consideration of whether the applicant’s conduct was a “constant repetition” of offences of unlawfully trafficking in dangerous drugs.  In any event, as noted earlier there was a hiatus, between 1994 and 2003, in the criminal record of the applicant.  For his part, the judge said simply that he had regard to what he described as the applicant’s “history of trafficking”. 

27.  By contrast, the conviction of the applicant for an offence of unlawfully trafficking in dangerous drugs in November 2003 was a matter which was directly germane to the judge’s consideration of the gravity of the instant offences.  However, given the length of the sentence, of forty months’ imprisonment and allowing for remission of sentence for good behaviour, it is likely that the applicant had been discharged from prison for that offence about four years before the commission of the instant offences.  Clearly, by the commission of the instant offences the applicant was re-offending in the offence of unlawfully trafficking in dangerous drugs.  However, in those circumstances that behaviour does not fall to be described as “constant repetition”.  That epithet was perhaps appropriate to the applicant’s multiple offences of possession of dangerous drugs. 

28.  In our judgment, in all the circumstances the judge erred in determining, in effect to enhance sentence for the applicant's “history of trafficking”.

Self-consumption

29.  Given that the judge identified the starting point for sentence that he would have taken had he not been satisfied that it was possible that some of the dangerous drugs were for self-consumption, namely four and one half years’ imprisonment, and that he then moved to identify the starting point he did take on the latter basis, it is clear that for the element of possible self-consumption he reduced the starting point taken for sentence by six months’ imprisonment.  In the circumstances of this case, and in light of his findings, it was not necessary for him to stipulate the reduction in sentence so afforded [see the judgment of this court in HKSAR v Wong Suet Hau [2002] 1 HKLRD69 at page 79 H-J, paragraph 34(4)].  On any view, that reduction in sentence was unduly generous to the applicant. 

30.  In the result, we are satisfied that the judge fell into error in stipulating a starting point for sentence of four years’ imprisonment. In all the circumstances, the appropriate starting point to be taken to sentence was three years’ and three months’ imprisonment.

Discount from the starting point

31.  Very properly, no issue was taken on behalf of the applicant in respect of the reduced discount of 25% that the judge applied in that acknowledgment of the applicant's plea of guilty.  Clearly, the reduced discount afforded by the judge to the applicant was entirely appropriate (see Wong Suet Hau at page 80 D, paragraph 34). 

CONCLUSION

32.  In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the sentence imposed by the judge.  In its place we impose a sentence of two years’, and two months’ imprisonment.