HKSAR v. GASPAR RICKY

[English Translation – 英譯本]
HCMA 128/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 128 OF 2014

(ON APPEAL FROM KTCC 6564/2013)

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REASONS FOR JUDGMENT

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1. The appellant was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134.  The appellant pleaded guilty to the charge and was sentenced to 9 months’ imprisonment by Mr Ernest Lin, the Principal Magistrate sitting in Kwun Tong Magistrates’ Court.  The appellant appealed against the sentence.

2. Having heard the case, this court allowed the appeal, set aside the term of 9 months’ imprisonment and substituted it with a term which allowed the appellant’s immediate release.  The reasons are as follows.

The facts

3. The facts indicated that on the material day, the appellant had come into contact with another man (ie the second defendant Ho Hau Kwong (transliteration) (hereinafter called Ho) in the present case) in the Mongkok MTR Station.  Having received some banknotes from Ho, the appellant took out from his trouser pocket a white plastic bag from which he took out 10 small packets and gave them to Ho.  At this juncture, police officers, who had laid ambush and kept them under observation, disclosed their identity and stopped the appellant.  Police officers found on the appellant other 6 small packets containing 51 tablets containing a total of 0.65 grammes of midazolam, cash $3,400 and a receipt of $1,500 for 150 tablets of midazolam prescribed by Dr Lam Lung Yu to the appellant.

4. Under caution, the appellant admitted that at the material time he had obtained 150 tablets of midazolam prescribed by the doctor. Having taken one tablet himself, the appellant then sold 98 tablets to Ho at the price of $3,400.  The remainder was the 51 tablets that the police found on him.

5. The police later confirmed that Dr Lam had indeed prescribed 150 tablets of midazolam to the appellant on the day in question.

6. Ho fled from the scene but was chased and stopped by the police.  The police retrieved from him 98 tablets containing 1.46 grammes of midazolam, the subject matter in the case.

7. The appellant trafficked in 98 tablets containing 1.46 grammes of midazolam.

8. The court was told that according to the information, Dr Lam’s prescription of the tablets to the appellant was calculated on a daily consumption of 3 to 4 tablets.  This quantity should last the appellant one month.

Reasons for sentence

9. The principal magistrate’s reasons for sentence are as follows:

“Discussion

6. The quantity of the dangerous drugs involved in this case was not on the high side. According to relevant authorities (eg R v Orton HCMA 225/1997 unrep [1997] HKLY, Choi Tung Cheung (unrep HCMA 759/2005 and others). In the cases mentioned in para 5-504B (viii) & (iv) of Archbold Hong Kong 2014, the sentences are generally under 6 months.

7. The most serious feature of this case is that [the appellant] had obtained lawfully the dangerous drugs in question from a doctor and then sold it to another. It is apparent that he used deceptive means by lying to the doctor that he had such needs, causing the doctor to believe it to be true and prescribe him the drugs. He then sold it for profit. To make it worse, [the appellant] had such dealings on a platform of MTR in full public view. Therefore, this court is of the view that a longer term of imprisonment should be adopted to reflect the seriousness of the crime.

Background of [the appellant]

8. [The appellant] is a 34-year-old adult who has 9 criminal convictions of which 5 are related to dangerous drugs. He has received compulsory drug addiction treatment for 3 times. [The appellant] has repeatedly committed crimes of similar nature. He can be described as a recidivist. This is another aggravating factor.

9. Taking into account the aforesaid factors, I am of the view that there is no other reasonable way apart from imposing a custodial sentence. I took 9 months’ imprisonment as a starting point and reduced it to 6 months in view of his plea. In the light of the aforesaid special factors, I decide to increase the term by 3 months, making a total of 9 months’ imprisonment.

10. I have also considered the submissions made by [the appellant’s] legal representative and find that there is no special reason which allows me to exercise my discretion to further reduce the sentence.  Therefore I order, for this charge, [the appellant] is sentenced to 9 months’ imprisonment.”

Grounds of appeal

10. Mr Wong Po Wing, Counsel for the appellant submitted the following grounds of appeal:

(I)  The starting point of 9 months’ imprisonment adopted by the principal magistrate is manifestly excessive.  The principal magistrate has failed to consider properly the quantity of the dangerous drugs and the facts of the case, including that the appellant lawfully obtained the dangerous drugs from a doctor, that he is a drug addict, and it was the first time that he committed the offence of trafficking.

(II)  The enhancement of sentence by 3 months by the principal magistrate because of the appellant’s criminal record is excessive;

(III)  The principal magistrate has erred in enhancing the sentence on the basis that the appellant had obtained dangerous drugs from a doctor lawfully; and

(IV)  The principal magistrate has enhanced the sentence to reflect the aggravating features after giving a one third discount for the guilty plea, as a result the appellant did not receive a discount on the enhanced sentence.

Discussion

11. I have read the principal magistrate’s reasons for sentence and understand he was aware that the dangerous drugs involved in the case was not substantial and that the usual sentence was under 6 months.  The principal magistrate then pointed out that the present case was serious because the appellant sold drugs which he had been obtained from a doctor by deception for profit, and the fact that he committed the crime in full public view made it worse.  As such, a higher starting point was warranted.  The principal magistrate further pointed out that the appellant was a recidivist, which aggravated the case.

12. But what was the basis for the principal magistrate to adopt 9 months as the starting point?  This is not clear in the reasons for sentence. As the principal magistrate mentioned that deception on the doctor and commission of crime in full public view were both reasons for him to enhance the sentence, it is supposed that the above factors were included in the starting point of 9 months.  If so, what is the basis for him to add 3 months after the sentence had been reduced?  Was it only because of the appellant’s criminal record?

13. I agree that the appellant, having obtained the tablets from a doctor lawfully, sold them to another on the same day was an aggravating factor.  However, I am of the opinion that the principal magistrate’s view that the appellant’s commission of the crime in full public view was an aggravating factor was questionable in the context of the present case.  I think from whichever point of view, considering the facts of the case and the appellant’s background and criminal records, the appropriate starting point should not be 9 months.  Not to mention the enhancement of 3 months after the sentence had been reduced for the guilty plea.

14. In HKSAR v Ng Tat Lung (transliteration) [2007] HKCLRT 698, a case that this court had dealt with, there was an elaborate analysis of the authorities.  The appellant in that case trafficked in a total of 102 tablets containing 1.41 grammes of midazolam.  He had 25 criminal records of which 7 were trafficking in dangerous drugs.  I was of the view that 6 months was an appropriate starting point.

15. The quantity of the dangerous drugs involved in the present case is similar to that in Ng Tat Lung. However, the appellant’s criminal convictions were far fewer than that in Ng Tat Lung.  I am of the opinion that even taking into account the aggravating feature of deceiving the doctor, the starting point should not be over 6 months.  The “starting point” of 9 months adopted by the principal magistrate was already manifestly excessive.  He then increased the sentence by 3 months, making it even more excessive.

16. Furthermore, the principal magistrate enhanced the sentence by 3 months after he had given a discount for the guilty plea.  It was contrary to the principle. In such a case, the appellant could not get the discount he was entitled to for his plea in respect of the 3 months’ enhancement.

17. The appellant started to serve his sentence on 4 January 2014.  It has been almost 5 months now.  Having regard to the one third discount for the guilty plea, the time that the appellant has served is equivalent to a sentence with a starting point of around 7 months and a half. 

18. In the light of the aforesaid reasons, the appeal is allowed.  The 9 months’ imprisonment is set aside and substituted with a sentence which allows the immediate release of the appellant.

Starting point of sentence

19. I take the opportunity to say that Stock VP had pointed out in HKSAR v Ta Dinh Son, CACC 348/2013, unreported, para 16, that a “starting point” is not the sentence reached after considering the aggravating features, but reflects the appropriate sentence that applies to a first offender for the particular type of offence, who has been convicted after trial, before considering any aggravating or mitigating features.  The 9 months reached by the principal magistrate after taking into account the aggravating features was obviously not a starting point.

20. I hope magistrates would be more prudent with their choice of words in sentencing and in giving their reasons for sentence, and not to loosely call any sentence before giving credit to a defendant’s plea the “starting point”.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law