HKSAR v. MOHAMED P SHAFIK

CACC 224/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 224 OF 2014

(ON APPEAL FROM DCCC 348 OF 2014)

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REASONS FOR JUDGMENT
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Hon Poon J (giving Judgment of the Court) :

INTRODUCTION

1.  On 6 June 2014, the applicant pleaded guilty to the following charges before HH Judge Sham in the District Court (“the Judge”) :

(1) possession of apparatuses fit and intended for the inhalation of a dangerous drug on 30 November 2013, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance[1] (Charge 1);

(2) possession of 2.93 grammes of methamphetamine hydrochloride on 30 November 2013, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (Charge 2);

(3) possession of arms, namely a stun gun, without a licence, on 30 November 2013, contrary to section 13 of the Firearms and Ammunition Ordinance[2] (Charge 3); and

(4) possession of 2.46 grammes of methamphetamine hydrochloride, 0.08 gramme of a solid containing methamphetamine and one tablet containing 12 milligrammes of diazepam on 13 February 2014, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (Charge 4).

2.  The Judge meted out the following sentences :

(1) Charge 1, 4 months’ imprisonment;

(2) Charge 2, 12 months’ imprisonment;

(3) Charge 3, 20 months’ imprisonment; and

(4) Charge 4, 14 months’ imprisonment.

He then ordered that 2 months of Charge 1, 6 months of Charge 2 and 8 months of Charge 4 were to run consecutively to the 20 months of Charge 3.  The total sentence imposed was 36 months’ imprisonment (2+6+20+8).

3.  Contending that that his sentence was manifestly excessive or wrong in principle, the applicant sought leave to appeal against the sentence.

4.  On 18 February 2015, after hearing the parties, we gave the applicant leave to appeal, and treating the application for leave as the appeal, allowed the appeal to the following extent.  While we did not disturb the sentence for Charge 1, we quashed the other individual sentences imposed by the Judge and substituted them with 10 months’ imprisonment for Charge 2; 16 months’ imprisonment for Charge 3 and 12 months’ imprisonment for Charge 4 respectively.  We further ordered that the sentences for Charges 1 and 2 are to be served concurrently; 8 months’ imprisonment of Charge 3 and 6 months’ imprisonment of Charge 4 are to be served consecutively to each other and to the concurrent sentences for Charges 1 and 2 with the rest of the sentences running concurrently.  We finally set aside the total sentence of 36 months’ imprisonment imposed by the Judge and substituted it with 24 months’ imprisonment (10+8+6).

5.  We now hand down the reasons for our judgment.

FACTS

6.  The agreed facts upon which the applicant was convicted can be summarised as follows.

7.  On the night of 30 November 2013 at a game centre in Wan Chai, the applicant was stopped by the police for a search during a routine licence check.  Upon searching, the applicant was found in possession of a glass tube and a plastic tube.  Under caution, the applicant admitted using them for inhaling drugs (Charge 1).

8.  The applicant was later brought to police station for investigation.  Upon being searched, the applicant was found to be in possession of 5 plastic bags containing a total of 2.93 grammes of methamphetamine hydrochloride (Charge 2) and a stun gun (Charge 3).  Under caution, the applicant admitted that he bought the drug earlier that day for his own consumption and that the stun gun was given to him as a gift by an American seaman a few weeks earlier and that he kept for self‑defence, as he worked as a bouncer.  The applicant was later released on bail.

9.  Upon subsequent examination, the stun gun was found to be a stunning device which worked by direct application to the human body.  It was capable of delivering a voltage with a magnitude of 145,325.00 volts.

10.  On 13 February 2014, the applicant was stopped by the police again when he was coming out from a flat in Wan Chai.  Upon being searched, the applicant was found to be in possession of 4 plastic bags containing a total of 2.52 grammes of a crystalline solid containing 2.46 grammes of methamphetamine hydrochloride; 1 plastic bag containing 0.08 gramme of a solid containing methamphetamine and one tablet containing 12 milligrammes of diazepam (Charge 4).  Under caution, the applicant said he had the drugs for his own consumption and the tablet was for treating his toothache.

THE APPLICANT’S BACKGROUND

11.  The applicant was 34 at the time of the offences.  He has a son, aged 19, and a daughter, aged 13, from his first marriage. They are looked after by his mother, who is diagnosed with breast cancer.  The defendant has another relationship with a young lady and they have a young child, aged 1. The defendant worked as a cleaner at a bar during the day and as a security guard at night.  In mitigation, it was submitted on his behalf that he was a hardworking man, taking two jobs to support his family.

THE APPLICANT’S CRIMINAL RECORD

12.  The applicant had four previous convictions. The first conviction was for possession of arms (a toy pistol) without a licence in 1996, for which he was fined HK$1,000.00.  The second and third convictions were simple possession of dangerous drugs in 1998 and 2000 for which he was fined HK$3,000.00 and HK$2,000.00.  The last conviction was in 2013 for possession of Part I poison for which he was fined HK$1,500.00.

REASONS FOR SENTENCE

13.  For Charge 1, the Judge adopted a starting point of 6 months.

14.  For Charge 2, the Judge referred to the sentencing guidelines in HKSAR v Mok Cho Tik [2001] 1 HKC 261 and said that he considered that amount of drugs in question fell within the range of 12 to 18 months as mentioned by the Court of Appeal.  The Judge then took into account the fact that the applicant was a long-term drug abuser.  Based on that factor, he adopted 18 months as the starting point.  The Judge went on to determine that there was no latent risk involved and thus decided not to enhance the starting point for such risk.

15.  For Charge 3, the Judge found that the applicant would be ready to use the stun gun when necessary as, on his own admission, he was a bouncer and had the stun gun for his own protection.  He referred to HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and the authorities reviewed therein. Taking into account the intended use of the stun gun by the applicant and the amount of voltage that it could discharge, the Judge adopted 30 months as the starting point.

16.  For Charge 4, given the quantity of the drugs involved, the Judge adopted 18 months as the starting point and enhanced it by 3 months for the fact that the applicant committed the offence while on bail, resulting in a total of 21 months.

17.  Apart from the applicant’s guilty pleas, the Judge found no other mitigating factors.  For his pleas, the Judge reduced the sentences for Charges 1, 2, 3 and 4 to 4 months, 12 months, 20 months and 14 months respectively.

18.  Having regard to the totality principle, the Judge ordered that the sentence of Charge 3 was to run consecutively to 2 months of Charge 1, 6 months of Charge 2, 8 months of Charge 4, and the rest were to run concurrently.  The total sentence imposed was 36 months’ imprisonment.

GROUNDS OF APPEAL

19.  Mr Bullett, counsel for the applicant, advanced 6 grounds of appeal :

(1) The Judge adopted an excessive starting point of sentence for each of Charges 1, 2, 3 and 4.

(2) In relation to charges 2 and 4, the Judge erred in treating the applicant as a long term abuser, which was contrary to the mitigation and not supported by his criminal record, which included two offences of possession of dangerous drugs in 1998 and 2000 for which he had been fined.

(3) The Judge erred in not making the sentences on Charges 1 and 2 concurrent.

(4) The Judge erred in enhancing the starting point of sentence on Charge 4 by 3 months or alternatively in not making the sentences on Charges 1 and 2 on the one hand and Charge 4 on the other hand concurrent.

(5) In adopting a starting point of 30 months in relation to Charge 3, the Judge gave excessive weight to the intended use of the stun gun for protection of the applicant, or erred in having considered wrongly that the applicant was prepared to use the stun gun for an unlawful purpose when there was no evidence to that effect.

(6) The Judge failed to give sufficient weight to considerations of totality of sentence in arriving at a total sentence of 36 months’ imprisonment.

DISCUSSION

20.  Broadly, Grounds 1, 2, 4 and 5 concern the proper starting point for each of the sentences for Charges 1 to 4.

21.  Mr Bullett submitted that for Charge 1, the usual starting point should be 4½ months, citing R v Law Sing, HCMA 890/1996, unreported, 20 August 1996, a decision of Stock J (as he then was).  However, according to more recent decisions of the Court of Appeal, a starting point of 6 months is not inappropriate : see HKSAR v Lee Yuen-ping, Maggie, CACC 242/2000, unreported, 24 November 2000, per Stock JA (as he then was) at p 8; and HKSAR v Eriksson Rickard Wilhelm, CACC 454/2002, unreported, 23 April 2003, per Yeung JA (as he then was) at §13. That being the state of more recent appellate authorities, we think the Judge was entitled to adopt 6 months as the starting point for Charge 1.  And there is no basis for us to interfere.

22.  In any event, even if one were to apply Law Sing, we would agree with the submission of Ms Mok, Senior Public Prosecutor (Ag.) for the respondent, that as the applicant was found in possession of the apparatus in a video game centre, the risk that the apparatus would readily be shown to youngsters at the video game centre could not be neglected and the Judge was therefore entitled to adopt a higher starting point than that stated in Law Sing.

23.  In respect of Charge 2, 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.  While the quantity of the drugs is usually the main governing factor which will determine where the starting point will lie, if the defendant is a persistent offender he can expect the starting point to be higher than it otherwise would be.  See HKSAR v Mok Cho Tik [2001] 1 HKC 261, per Stock JA at p 267B-E.

24.  Here, in taking 18 months as the starting point for Charge 2, the Judge relied on two factors.  First, the quantity of the drugs in question fell within the range of 12 to 18 months in HKSAR v Mok Cho Tik.  Second, the applicant was, according to what his counsel had confirmed in mitigation, to be regarded as a long term drug abuser.  That finding was supportable by his first drug related conviction in 1998.

25.  Concerning the first factor, with respect to the Judge, we think he had failed to give sufficient weight to the fact that for sentencing purposes, the quantity of the drugs lied within the lower end of the scale of the quantity of dangerous drugs which a bona fide user would normally have in his possession.  In HKSAR v Mok Cho Tik, the defendant was found to be in possession of 15.724 grammes of methamphetamine hydrochloride.  The Court of Appeal held that an appropriate starting point was 18 months.  A starting point of 18 months is plainly not appropriate for a much lesser quantity of drugs as is the case for Charge 2.

26.  Concerning the second factor, that was in fact what the applicant’s counsel told the Judge in mitigation when in response to the Judge’s question if “You will accept he is a long term drug abuser”, counsel answered, “Yes, but not a trafficker.”  Mr Bullett submitted that what his predecessor meant was that this case was of possession only.  He further contended that the applicant’s record also showed that it was unlikely that he was involved in drugs during 2000 and 2013 when he had a completely clear record during that period.  Mr Bullett therefore reasoned that there was no evidence to support the judge’s statement that the applicant was a long-term drug abuser.  With respect, we cannot agree.  When defence counsel told the Judge that the applicant was a long term drug abuser, he must have done so on instructions.  That being the case, the fact that the applicant had no drug-related record between 2000 and 2013 carried little weight.  In our view, the Judge was entitled to sentence the applicant on the basis that he was a long term drug abuser.

27.  That said, a starting point of 18 months is manifestly excessive in light of the relatively small quantity of drugs.  An appropriate starting point is 15 months.

28.  In respect of Charge 4, we think the Judge had also made the same error of not giving sufficient weight to the relatively small quantity of drugs when he adopted 18 months as the starting point.  Similarly, we think an appropriate starting point is 15 months.  But, the Judge was right in enhancing it by 3 months to take into account the fact that it was committed while he was on bail, making it a total of 18 months.

29.  In respect of Charge 3, the following general principles derived from the Court of Appeal’s judgments in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai, CACC 264/2005, unreported, 10 October 2005, provide useful guidance.

30.  First, as deterrence, an immediate custodial sentence is required for offences of this type.  See HKSAR v Li Hung Kwan, at §17.

31.  Second, the starting point to be adopted has to be considered in the light of the facts of each case.  There is no tariff for the offence.  See HKSAR v Li Hung Kwan, at §17; HKSAR v Fan Kwok Wai, at §8.

32.  Third, while the court will take into account all the relevant circumstances of the case, important considerations which often arise are, firstly, the power of the weapon in terms of the voltage that it is capable of discharging; and secondly, whether there is evidence that the offender or some other person has used or may use the weapon for an unlawful purpose or to facilitate an unlawful activity.  Even though there may be no present intent established on the part of the offender to use the weapon in any such unlawful way, where there is a real risk in the circumstances that the weapon will fall into the hands of someone who will use it for such purpose, that is also a factor which will result in a higher starting point of sentence.  See HKSAR v Fan Kwok Wai, at §9.

33.  The facts in the two cases also provide some practical clues as to how the court should determine the appropriate starting point.

34.  In HKSAR v Li Hung Kwan, the stun gun generated 35,000.00 volts when operated in the air and 12,000.00 volts if applied to a human body.  The Court of Appeal noted that such a voltage was in the middle-lower range.  In the absence of evidence that suggest that the defendant intended to use the stun gun for an illegal purpose, the starting point was 20 months.

35.  In HKSAR v Fan Kwok Wai, the defendant possessed 3 stun guns which were capable of producing charges of 20,403.00 volts, 10,000.00 volts and 13,623.00 volts.  The Court of Appeal noted that it was a medium range of voltage for weapons of this sort.  The Court of Appeal took into account the appellant’s triad connections and concluded that there was obviously a real risk that the 3 stun guns would be used for an unlawful purpose or fall into the wrong hands.  His possession of the three stun guns in those circumstances was in the upper range of seriousness of the offence.  The Court of Appeal went on to note that although there were 3 stun guns, they were kept in the defendant’s domestic premises and there was no evidence of any immediate intent by the defendant to use the weapons.  The Court of Appeal held that an appropriate starting point is 3 years.

36.  Turning to the present case, Mr Bullett submitted that a starting point of 18 months should have been adopted in the circumstances of this case, namely, a single stun gun, never used, kept for self defence and with no evidence of any unlawful purpose.  That would be consistent with the Court of Appeal’s approach in HKSAR v Li Hung Kwan.  Ms Mok submitted that the Judge was duty bound to consider Charge 3 in its proper context.  As the applicant explicitly admitted that he worked as a bouncer and had the stun gun for self-defence, the Judge was entitled to infer that the applicant would be ready to use the stun gun when necessary.  Thus, the starting point of 30 months was not manifestly excessive or wrong in principle.

37.  As rightly noted by the Judge, the power of the stun gun in question is undoubtedly much higher than any of the stun guns featuring in the earlier cases.  However, that is not the end of the matter.  Placed before the Judge was a forensic medical report prepared by a senior forensic pathologist dated 27 February 2014 in which the forensic medical aspect of the seized stun gun was discussed.  According to that report :

“ The actual effects of such devices, when applied on human subjects, depend on a number of factors such as the site and duration of contact, body build, tolerance to pain and psychological preparedness. Generally speaking, one can expect the following effects when a functional stun device of this category is applied on an average healthy person :

(a) Electrical effects :

i. Brief application : The subject would be startled, and would experience intense local pain and muscle spasm.

ii. Prolonged application (more than 3-5 seconds) : The subject may fall onto the ground due to generalized muscle paralysis; he may remain dazed, weak or even immobilized for a while, possibly up to several minutes.

iii. It is generally believed that certain models of stun devices with sufficient power output (such as the Taser® M26C), when applied properly and for a sufficiently long period of time, should always cause a temporary incapacitation regardless of the subject’s tolerance to pain. However, many models of stun devices (for example, most torch‑shaped device seized locally) lack features that would guarantee a prolonged discharge, such as wired-darts that pierce or adhere to clothing or skin, and in a real life situation the startled victim may be able to move away upon initial contact, thus shortening the period of electric shock received, and hence avoiding complete incapacitation.

…

vi. Locally seized devices are often manufactured by unknown manufacturers, and show a wide dispersion in their electrical properties.  Some devices show voltages up to over 800 kilovolts, well above the usual range of 50 kilovolts generated by Taser® devices legally used by law‑enforcement agencies in North America.  In this particular case, the seized device was able to generate a peak-to-peak voltage of 145 kilovolts, about 3 times that of a standard Taser®.  There is insufficient date to tell whether such a no‑darts‑but-high-voltage device would exhibit a corresponding increase in sustained electrical power output and effectiveness in causing incapacitation in a real life situation.  As explained above, an increase in voltage may not necessarily mean an increase in power, though that is generally expected….”

Thus, although the voltage that the stun gun can discharge is considerably higher than those found in other cases, it is not clear if it would cause greater harm to the human body correspondingly.

38.  When the applicant was arrested, the stun gun was found being secured by the belt around his waist. He was carrying the stun gun on his person.  The risk of him using the stun gun when necessary is real.  In the circumstances, the Judge was correct in drawing the inference as he did.

39.  But we do not think the applicant’s case in the overall circumstances is so serious that it warrants a starting point of 30 months.  We think the starting point should have been 24 months instead.

40.  Giving the applicant one-third discount of his pleas, the sentences are : 4 months’ imprisonment for Charge 1; 10 months’ imprisonment for Charge 2; 16 months’ imprisonment for Charge 3; and 12 months’ imprisonment for Charge 4 respectively.

41.  We next turn to Ground 3, which can be disposed of shortly.  As rightly conceded by Ms Mok, the Judge erred in not ordering the sentences for Charges 1 and 2 to run concurrently : HKSAR v Eriksson Richard Wilhelm, at §13; and HKSAR v Lee Yuen Ping Maggie, at p 8.

42.  This brings us to Ground 6, which concerns the application of the totality principle.  In our view, the total sentence of 36 months’ imprisonment imposed by the Judge was manifestly excessive in the overall circumstances of this case.  We would reduce it to 24 months’ imprisonment as follows.  The sentences for Charges 1 and 2 are to run concurrently. 8 months’ imprisonment of Charge 3 and 6 months’ imprisonment of Charge 4 are to run consecutively to each other and to the concurrent sentences for Charges 1 and 2 with the rest of the sentences running concurrently, resulting in a total of 24 months’ imprisonment (10+8+6).

DISPOSITIONS

43.  For the above reasons, we grant the applicant leave to appeal against sentence, and treating the hearing as the appeal, allow the appeal.  We do not disturb the sentence for Charge 1.  We quash the other individual sentences on Charges 2 to 4 and substitute them with 10 months’ imprisonment; 16 months’ imprisonment and 12 months’ imprisonment respectively.  We further order that the sentences for Charges 1 and 2 are to be served concurrently; 8 months’ imprisonment of Charge 3 and 6 months’ imprisonment of Charge 4 are to be served consecutively to each other and to the concurrent sentences for Charges 1 and 2 with the rest of the sentences running concurrently.  We finally set aside the total sentence of 36 months’ imprisonment imposed by the Judge and substitute it with 24 months’ imprisonment.

[1] Cap 134.

[2] Cap 238.