HKSAR v. CHOY YUK LUNG

CACC 176/2018

[2018] HKCA 976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 176 OF 2018

(ON APPEAL FROM HCCC NO 27 OF 2018)

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J U D G M E N T

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1.  The applicant applies for leave to appeal the sentence of 6 years and 2 months’ imprisonment imposed on him by M Poon J on 15 June 2018, following his conviction on his own plea to trafficking in a dangerous drug, namely 45.5 grammes of a crystalline solid containing 45.4 grammes of methamphetamine hydrochloride (commonly known as Ice).

The admitted facts

2.  In the early evening on 19 July 2017, the applicant was stopped by a police officer when entering the concourse of Shau Kei Wan MTR station.  He was carrying a black recycled bag and behaving suspiciously.  The police officer searched the bag and found inside, a mobile telephone box, containing 6 resealable transparent plastic bags of Ice and an electronic scale.  Upon inquiry about these items by the police officer, the applicant said that it was Ice for his own consumption and asked to be given a chance.  However, he tried to tear up the plastic bags and a struggle with the police officer ensued, who managed to eventually subdue him.  After he had been arrested and cautioned, he said that he purchased the Ice for $3,000 for his own consumption. 

3.  In a subsequent video recorded interview, he said that he planned to go to a park near the MTR station to look for a friend but could not find him and was about to go home when he was stopped by the police officer.  He said that when he purchased the Ice, he was given an electronic scale.  He then went to a public toilet to consume a little of it and with the aid of the electronic scale, he separated the drugs into several packets for his own consumption.  This way he could keep track of how much of the drugs he had consumed.  He said that he had been taking drugs since 1981 and consumed Ice five times a day, taking about 0.2 gramme each time.

4.  A later search of his home did not uncover any contraband or suspicious items.  At the time of his arrest, the applicant was on social welfare benefits, receiving a monthly allowance of about $4,500. 

5.  The estimated retail value of the drugs seized was $20,202. 

6.  As part of the summary of facts, the applicant admitted and accepted that the drugs found on him were for the purpose of trafficking. 

The applicant’s mitigation

7.  The main theme of the applicant’s mitigation was that he was a drug abuser and that a third of the drugs seized from him were for his own consumption.  It was also submitted that he was of ill health, suffering from diabetes.

8.  The applicant has an appalling criminal record which reveals that from February 1986 to February 2017, he has come before the courts on some 17 occasions, most of which were for possession or trafficking in a dangerous drug.  He in fact has five previous convictions for trafficking in a dangerous drug, one offence in December 1999, two offences in October 1999, one offence in October 2003 and one offence in May 2010 for which he received 4 years’ imprisonment.

The reasons for sentence

9.  In sentencing the applicant, the judge applied the sentencing guidelines for trafficking in Ice of HKSAR v Tam Yi Chun [2014] 4 HKC 256.  She adopted a starting point of 9 years and 3 months’ imprisonment for 45.4 grammes of Ice narcotic.  I note on a strict arithmetic calculation the starting point should be 9 years and 4 months’ imprisonment. 

10.  The judge then addressed the issue of self-consumption.  She rejected the applicant’s account that he was on his way home, after he had purchased the drugs and failed to locate a friend who he had planned to meet.  She noted that there were six packets of Ice, all placed together with an electronic scale inside the mobile telephone box.  She also rejected his account that he divided the drugs himself with the electronic scale in a public toilet.  She noted that counsel on behalf of the applicant had made a bare assertion that one third of the drugs were for the applicant’s own consumption. She had previously mentioned that the applicant had previous convictions for possession and trafficking if a dangerous drug and accepted that he might well have been a user of drugs at the time of his arrest.  It would appear that it was on this basis that she accepted some of the Ice might be for his own consumption, but she did not accept that it would amount to “a significant or readily quantifiable division” to warrant a reduction from the starting point. She therefore made no allowance that some of the drugs were for the applicant’s own consumption.

11.  The judge reduced the starting point of 9 years and 3 months’ imprisonment by one third for the applicant’s guilty plea to 6 years and 2 months’ imprisonment. 

The application for leave to appeal

12.  The applicant complains that his sentence is “too heavy”.  In a letter to the Court dated 11 September 2018, he claims that the sentence was excessive because of the purity level of the drugs in his possession was less than usually the case and therefore the starting point adopted by the judge was excessive.  There is no substance to this complaint. The narcotic content of the Ice was 45.4 grammes and it was on that basis that the judge calculated the starting point that she adopted in his case.  She correctly followed the sentencing guidelines for trafficking in Ice.

13.  Mr Prakash L Daryanani, counsel for the respondent, points out that it was available to the judge to have exercised her sentencing discretion to give a discount for some of the drugs being for the applicant’s own consumption even though the quantity involved was not significant or quantifiable.  He referred to HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, at paragraph 29.  However, as was made clear in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 at paragraph 34, a sentencing court should keep well in mind the fact that possession of a dangerous drug itself carries a term of imprisonment which may be enhanced for the latent risk that the drugs will be accessed by or distributed to others and this may well offset much of the practical value of the mitigation that some of the drugs were for the defendant’s own consumption.  It may well be that the judge had in mind this aspect of the sentencing principles relating to self-consumption or that the amount was so small that it would have had negligible impact on the sentence to be passed.

14.  In any event, as rightly pointed out by Mr Daryanani, even if some small discount was warranted for self-consumption, it would not have had any impact to the overall sentence because the applicant was fortunate that the judge did not increase his sentence for his recidivism, having acquired over time 5 previous convictions for trafficking in a dangerous drug.  See R v Lau Tak Ming [1990] 2 HKLR 370, 386; HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, 833; HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, at paragraph 9(5).

Conclusion

15.  It follows from what I have said that the application for leave to appeal against sentence is refused.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.  He is further warned that it is also available to the Court to increase a sentence when sentencing him afresh.