HKSAR v. YU YUEN FAI

CACC 152/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 152 OF 2012

(ON APPEAL FROM DCCC NO. 82 OF 2012)

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J U D G M E N T

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

1.  The applicant seeks leave to appeal against the sentences of imprisonment imposed upon him by Deputy District Court Judge KH Cheang on 30 March 2012 following his conviction on 27 March 2012, on his pleas of guilty, of a charge of trafficking unlawfully in dangerous drugs and a charge of possession of dangerous drugs, contrary to section 4 (1) (a) and (3) and section 8 (1) (a) and (2) respectively of the Dangerous Drugs Ordinance, Cap. 134.

THE FACTS

2.  The applicant was convicted of trafficking unlawfully on 15 November 2011 at Room 614, Hung Sing House, Hung Hom Estate, Kowloon in 21.2 grammes of cocaine and 8.54 grammes of heroin hydrochloride (Charge 1) and of possession, at the same time and place, of 0.37 grammes of methamphetamine hydrochloride, eight tablets containing 0.05 grammes of nimetazepam and 14 tablets containing 0.06 grammes of methadone (Charge 2).

3.  At about 06:15 on 15 November 2011 a party of police officers forced their entry into those premises.  The applicant and a middle-aged female were found on the premises.  At about the time of the entry of his colleagues into the premises a police officer on the ground floor witnessed a black plastic bag being thrown out of a window of the premises and landing on the podium beneath that window.  Just over 14 grammes of cocaine was found in plastic bags contained in the black plastic bag as was 0.37 grammes of methamphetamine hydrochloride.  The remainder of the drugs the subject of the charges was found in a moon cake box found in a desk in the sitting room of the premises.  Next to the moon cake box was a metal bottle, into which was inserted a glass tube, which contained traces of methamphetamine.  The applicant was found to be in possession of $23,350.

4.  Having been arrested and cautioned for the offence of trafficking unlawfully in dangerous drugs, the applicant admitted that he had bought all of the dangerous drugs the previous evening, after which he had visited the female at those premises.  He claimed that all of the dangerous drugs were for his own consumption.  He said that he had consumed some of the dangerous drugs the previous evening.  He admitted that he had thrown the dangerous drugs out of the window of the premises.

Reasons for Sentence

5.  The judge noted that the applicant was 32 years of age and had been, convicted of 11 criminal offences on seven separate occasions, three of which convictions were for the offence of possession of dangerous drugs. However, the judge went on to observe that the applicant had never been convicted of the offence of trafficking unlawfully in a dangerous drug.

6.  It was accepted by the prosecution that some of the dangerous drugs of which the applicant was possessed was for own consumption, although no issue was taken with the fact that the applicant was trafficking unlawfully in most of the dangerous drugs.  In consequence, the judge stated that he approached the determination of the appropriate sentence on the basis that most of the cocaine and heroin hydrochloride was possessed by the applicant for the purposes of trafficking unlawfully.

7.  The judge referred to the judgment of this court in HKSAR v Wong Suet Hau[1], cited with approval in the subsequent judgment of this court in the Secretary for Justice v Hii Siew Cheng[2], as relevant to the contention made on behalf of the applicant that an element of the applicant’s unlawful trafficking in the dangerous drugs involved ‘social’ or ‘non-commercial’ use.  Those judgments state that, on a general basis, those factors were not ones that led to the imposition of a lighter sentence for the offence of trafficking unlawfully in a dangerous drug.

Starting point

8.  The judge stated that he had regard to the entire quantity of cocaine and heroin hydrochloride taken together, namely 29.74 grammes, as the basis for calculating the initial starting point to be taken for sentence for Charge 1, which he stipulated as 6½ years’ imprisonment.  For the possession of dangerous drugs the subject of Charge 2, the judge observed that in its judgment in HKSAR v Mok Cho Tik[3] this court had said that the usual range of sentence was between 12 and 18 months’ imprisonment.  However, the judge stipulated a starting point for sentence for Charge 2 of 6 months’ imprisonment.

Discount

9.  Affording the applicant a discount for the proportion of the dangerous drugs that were for his own consumption, but having regard to the ‘latent risks’ of the dangerous drugs being distributed to others, the judge reduced the starting point taken for sentence by 4½ months’ imprisonment to 6 years 1½ months imprisonment.

10.  For the applicant’s pleas of guilty and other mitigating factors the judge afforded the applicant a discount of one-third from that taken as the starting points.

Sentence

11.  Accordingly, the judge sentenced the applicant to 4 years and 1 months’ imprisonment for Charge 1 and 4 months’ imprisonment for Charge 2, ordering that the sentences be served concurrently.  The judge went on to note that the applicant had been sentenced on 5 January 2012 to a total of 8 months’ imprisonment for an offence of possession of an offensive weapon in a public place and possession of dangerous drugs.  Of that, he noted that in that case the applicant has failed to answer his police bail until his arrest on 15 November 2011 for the instant offences.  Accordingly, he ordered the sentences in the instant case to be served consecutively to the sentences imposed on 5 January 2012.

DISCUSSION

12.  No issue is taking by Mr Reading SC as to the approach taken by the judge for sentencing.  However, it is apparent from other papers now presented to this court that the applicant is entitled to a further discount to that afforded to him by the judge at his sentencing.  We are satisfied that, in all circumstances, that the discount is appropriately reflected in the sentence imposed in respect of Charge 1.

Conclusion

13.  Accordingly, 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 of 4 years and 1 months’ imprisonment imposed in respect of Charge 1.  In its place we substitute a sentence of 3 years and 6 months’ imprisonment.  In the result, the total sentence of imprisonment imposed on the appellant is 3 years and 6 months.

[1] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 at page 65B, paragraph 51.

[2] Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323 at page 350, paragraph 98.

[3] HKSAR v Mok Cho Tik [2001] 1 HKC 261.