HKSAR v. WONG WAI WAH

CACC 181/2017

[2018] HKCA 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2017

(ON APPEAL FROM DCCC 854 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with trafficking in a dangerous drug,contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 11 April 2016, he trafficked in 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride (“Ice”). The applicant appeared before Deputy District Judge Wong Sze Lai Lily (“the judge”) and pleaded not guilty to this charge but indicated at the time that he would plead guilty to the charge of possessing a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance, Cap 134.

2.  This plea was unacceptable to the prosecution and the case proceeded to the trial.  After trial the applicant was acquitted of trafficking in a dangerous drug and convicted of possession of a dangerous drug. 

3.  On 26 May 2017, the applicant was sentenced by the judge to 18 months’ imprisonment.  He subsequently applied for leave to appeal against this sentence.

4.  At the hearing of the application I granted the applicant leave to appeal and said I would hand down my reasons for so deciding at a later date.  These are my reasons.

The trial

5.  It was an admitted fact that around 9:04 am on 11 April 2016 the applicant was arrested by a police officer outside the ground floor of 131 Fa Yuen Street, Mongkok, Kowloon.  Upon a search of the applicant’s person the police officer found a packet containing 12.5 grammes of Ice.  In response to being cautioned for possession of this dangerous drug the applicant claimed that the Ice was for his own consumption. 

6.  The police officer subsequently took two records of interview from the applicant and these were produced in evidence. The applicant was also interviewed by another police officer and this video record of interview was produced.  In the video record of interview the applicant claimed that he had purchased the Ice from a casual friend in Mongkok that morning for $1,200 and that he had been a drug addict for two years, taking Ice 3 to 4 times a day.  He said that he needed the Ice for reducing stress and for refreshing himself.  He bought a larger quantity of Ice because it was cheaper to do so and the quantity in his possession would last him for more than half a month.  He claimed he worked as a renovation worker earning around $20,000 a month and that he spent around $2,000 a month on Ice.

7.  It was also an admitted fact that the estimated value of the Ice at the material time was approximately $3,848, if calculated from purchases of 5 grammes or less, as contained in relevant police statistics. 

8.  The applicant did not testify at trial or call any witnesses.  He relied entirely upon the contents of the interviews that were adduced in the prosecution case.

The mitigation

9.  The applicant was represented at trial by Mr Boyton of counsel.  Mr Boyton informed the judge that he accepted that, given the quantity of drugs possessed by the applicant, there existed a latent risk of the drugs falling into the hands of others.  He referred the judge to the case of HKSAR v Mok Cho Tik[1] and said that the quantity of drugs possessed by the present applicant was similar to the quantity possessed by the applicant in that case.  The judge indicated that in that case the starting point of 18 months was adopted to which Mr Boyton replied “Yes”.  The judge then said:

“… And you accept that I should enhance the sentence because of the existence of the latent risk.”

In response to this enquiry Mr Boyton answered “Yes”.

10.  There was no dispute that the applicant had an appalling criminal record.  He had 27 court appearances with 49 previous convictions dating back to 1988.  His first dangerous drugs offence, for simple possession, was in 1989.  His second drugs offence was in 1999 and was also for simple possession.  The applicant had further simple possession convictions in 2004 and 2005.  In 2006 he had his first, and only, conviction for trafficking in a dangerous drug for which he was sentenced to 4 years 8 months’ imprisonment.  Since 2011 he has had 21 convictions, all but four of which were for road traffic offences.  Two of the other four were simple possession of a dangerous drug, in 2012, for which he was sentenced to imprisonment for 6 months, and possession of Part I Poison, also in 2012, for which he was fined $2,000.

The judge’s Reasons for Sentence

11.  After setting out the facts of the case the judge turned to the issue of the appropriate sentence and referred herself to the decision of the Court of Appeal in Mok Cho Tik.  Mok Cho Tik involved 15.724 grammes of Ice for which the Court of Appeal said the appropriate starting point was 18 months’ imprisonment.  The judge said that taking all the circumstances into account she was satisfied that the appropriate starting point for the 12.5 grammes of Ice possessed by the applicant was 18 months’ imprisonment. 

12.  The judge then turned to the issue of latent risk and again referred herself to the decision of Court of Appeal in Mok Cho Tik. There the court assessed the latent risk to be high and enhanced the sentence by 12 months to allow for this factor. 

13.  In assessing the latent risk of the drugs possessed by this applicant falling into the hand of others the judge said:

“22.   Taking into account that the defendant was stopped in the street at 9 pm on 11 April and that he told the police in the VRI that he bought the ‘ice’ in that morning, the quantity involved was not small, and which, as the defendant claimed, could sustain for his consumption for more than half a month, and he has five previous convictions for possession of a dangerous drug and a conviction for trafficking in a dangerous drug, there was, in my view, a risk that the ‘ice’ could have fallen into other hands.

23.   In the circumstances, I increase the starting point by 9 months to 27 months’ imprisonment.”

14.  The judge then indicated that she would reduce that sentence of 27 months by one third to allow for the applicant’s plea of guilty and by this route reached a final sentence of 18 months’ imprisonment which she then imposed upon the applicant.

15.  There then occurred some discussion in relation to exhibits after which the following exchange between the judge and Mr Boyton took place:

“COURT: I believe there are no other outstanding matters to be dealt with.

MR BOYTON: No, but, my Lady, I know it doesn’t make any difference. It’s 9 am when he was arrested. You said ‘pm’ twice.

COURT: 9 am?

MR BOYTON: Yes.

COURT: Not 9 pm.

MR BOYTON: Yes.

COURT: Right.

MR BOYTON: Just to give -- you said it twice. It doesn’t make a difference, I know.

COURT: Right.

MR BOYTON: Thank you.

COURT: Thank you.”

The applicant’s grounds of appeal

16.  The applicant is unrepresented and so has not filed any Perfected Grounds of Appeal.  However, in a document attached to his Form XI he indicated what it was that he was complaining about.  He said in his Form XI:

“…After trial, I was acquitted of the Trafficking in a Dangerous Drug offence but was convicted of possession. The trial judge sentenced me to 18 months’ imprisonment and ordered an additional 9 months’ term, stating latent risk as an aggravating factor. As a result, the total term of imprisonment in this case was 27 months

2. This particular ground (of appeal) focuses on the additional 9 months’ term of imprisonment ordered by the trial judge for the reason of latent risk. The additional sentence was ordered without carefully considering all the situations and evidences in the case. The court had been granting me bail all along before sentence, reflecting the less serious (nature) of the facts of the case and the charge. When I was arrested by the Police, I did not have a large amount of cash or mobile phone(s) on me. All the dangerous drug involved in the case was not split (into portions) or packaged, but simply contained in a single plastic bag. Furthermore, the Police did not seize any instruments fit for the purposes of packaging and distributing (deletion), such as plastic bags for containing (dangerous drug) or scales. Upon arrest and under caution, I admitted to the Police that all the dangerous drug involved in the case was for my own consumption, rather than for selling at a profit.

3. In view of the above, there was no latent risk in this Possession of a Dangerous Drug case, contrary to what the trial judge has suggested.  Nevertheless, the trial judge ordered an additional term of 9 months to be served on this ground, resulting in an excessive sentence which was unjust to me.”

17.  At the hearing of the application the applicant indicated that he had nothing further to add to the matters he had raised in this document. 

The respondent’s submissions

18.  Ms Chan Sze Yan, Senior Public Prosecutor, appeared for the respondent.  She submitted that notwithstanding the error by the judge there was evidence before the court which entitled the judge to find that there was a latent risk of the drugs in the possession of the applicant falling into the hands of others.  The factors which went towards the assessment of latent risk were the criminal record of the applicant, which included a conviction for drug trafficking, and the quantity of drugs in his possession. 

Discussion

19.  In HKSAR v Minney[2] Tang PJ, in giving a judgment with which the other members of the Court of Final Appeal agreed, said at paragraph 16:

“… The assessment of the risk of dissemination depended on the drawing of the correct inference from the circumstances of the possession as established on the evidence. Before any such inference was drawn, the sentencing court must be sure that in all the circumstances of the particular case, the risk of dissemination is real. The sentencing judge is best placed to decide whether there is such a real risk. Often times, it is just a matter of common sense.”

20.  In determining whether there was a latent risk in respect of the Ice possessed by the applicant the judge indicated that she took into account that the applicant was stopped on the street at 9 pm and that he had told the police that he had bought the Ice in the morning.  This meant that the judge took into account, as a relevant factor in determining the issue of the latent risk, that the applicant had been in possession of the Ice all day and that he was intercepted and found to be in possession of it when he was still on the street. 

21.  This was a factual error which was brought to the attention of the judge but which neither counsel for the applicantnor the judge seems to have thought would have any impact upon the assessment of the latent risk and, once that risk was assessed to be present, the amount by which the starting point should be enhanced to reflect it. 

22.  Essentially the only evidence of latent risk in this case is the quantity of drugs possessed by the applicant and his previous convictions for drug trafficking and possession of dangerous drugs.  The amount of drugs possessed by the applicant would last, so the applicant claimed, for over a fortnight.  Consequently he would be in possession of the Ice for at least two weeks.  The conviction for trafficking was 10 years old and little can be inferred from it other than that he may be a drug abuser who does not have any qualms about trafficking if his circumstances necessitate it.  Nevertheless, it is a factor to be taken into account together with the amount of the drug and the length of time it would last him.  These facts may, arguably, entitle an inference to be drawn that there was a risk that the Ice could fall into the hands of others. 

23.  However, assuming for present purposes that such a conclusion was reached, such a risk could not be said, as was said in Mok Cho Tik in respect of that applicant, to be a high one.  I say this because there was no evidence that the applicant associated with other drug users, drugs were not found on open display in his residence and there was no evidence to contradict his claims to his employment and income and his ability to fund his drug habit. 

24.  But this risk would certainly be greater if it was a fact that the applicant had been in possession of the drugs on the street for a whole day and, likewise, once that circumstance is removed from consideration the risk is much lower.  In my view it is reasonably arguable that the judge’s assessment of the risk, and her determination of the amount by which the starting point should be enhanced to reflect that risk, were affected by her taking into account an erroneous understanding of how long the applicant had been in possession of the drugs.

Conclusion

25.  For these reasons I granted the applicant leave to appeal against his sentence.  I note the applicant has previously applied for and been refused legal aid.  In order that he can properly have his appeal argued before the Court of Appeal I grant him an appeal aid certificate pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.