HKSAR v. FUNG CHI FAI JAMES

[English Translation – 英譯本]
HCMA 453/2014

N THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 453 OF 2014

(ON APPEAL FROM FLCC 2965/2014)

____________________________

____________________________

REASONS FOR JUDGMENT

1.  The appellant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong. The appellant was convicted on his own plea by Magistrate Ms Merinda Chow in the Fanling Magistrates’ Court and sentenced to 15 months’ imprisonment. The appellant appealed the sentence.

2.  I dismissed the appeal after the hearing, for reasons which I set out below. 

Facts

3.  On 13 April 2014, the appellant entered Hong Kong through Lok Ma Chau Control Point.  He indicated to the Custom officers that he was carrying tobacco the quantity of which exceeded the duty-free limit.  The Custom officers took him to the search room of the Immigration Hall for a search.  Upon search of the appellant’s rucksack, the Custom officers found 361 cigarettes and also the dangerous drug in question (namely 2.24 grammes of ketamine and 0.07 grammes of a mixture containing ketamine).  The appellant indicated under caution that the ketamine in question belonged to him.

4.  Later, in a video recorded interview, the appellant admitted that the ketamine in question was for his own consumption, and that he had bought it in Shenzhen for RMB¥300.

The appellant’s background and submission in mitigation

5.  The appellant is aged 45 and divorced.  He met with a traffic accident years ago, which caused him impaired mobility and foot pain. He claimed he had foolishly trusted some bad friends and wrongly thought that the pain could be alleviated by taking drugs.

6.  The appellant had nine previous convictions, all of which were related to theft and driving motor vehicles.  Prior to the present conviction, he had not been convicted of any offence relating to dangerous drug.

Drug addiction treatment centre report

7.  The report stated that the appellant began to consume ketamine in early 2011.  His consumption was irregular and usually took place on social occasions.  His last consumption was on 13 April 2014.  The appellant was not addicted to drugs.

Reasons for sentence

8.  The magistrate considered the case of Hii Siew Cheng [1] and took the view the sentence for trafficking in 2.31 grammes of ketamine should be 30 months’ imprisonment.

9.  Having considered the case of Wong Suet Hau [2], which laid down the principles in respect of a defendant’s claim that the dangerous drugs were for self-consumption, and having regard to the facts of the present case, the magistrate accepted the appellant’s claim of “self-consumption”.

10.  The magistrate said that this type of cases, in which drugs were found upon search of people who went through custom formalities at the control point between the Mainland and Hong Kong, could be said to be very common in the Fanling Magistrates’ Court.  She said that “this type of cases has become prevalent and rampant, and ‘self-consumption’ is very often put forward as a mitigating factor”.  She pointed out that the appellant could not rely on “self-consumption” in the hope of receiving a lenient sentence, otherwise a wrong message would be conveyed to those who crossed the border.

11.  Having considered the definition of “trafficking” and the cases of Chow Kam Lung [3]and Chan Chun Fai [4], the magistrate adopted 30 months’ imprisonment as the starting point.  The term was adjusted downward by 25% for “self-consumption” and then reduced by one-third on account of the appellant’s guilty plea.  The magistrate did not consider the appellant’s foot pain a mitigating factor, and therefore imposed a sentence of 15 months’ imprisonment.

Grounds of appeal

12.  Ms Chong, Counsel for the appellant, put forward two grounds of appeal.

Ground of appeal (1)

13.  The appellant contended that the magistrate, taking judicial notice based on her own personal experience, considered that the offence of trafficking dangerous drugs across the border for self-consumption had “become prevalent and rampant” in Hong Kong and hence enhancement of sentence was warranted.  However, there was no evidence in the present case to support her view, and the enhancement was not justified.  The magistrate has therefore erred in principle.

Ground of appeal (2)

14.  The appellant argued that the starting point of 30 months was manifestly excessive whether on its own or in comparison with other similar cases.  In passing sentence, the magistrate had failed to take into account the very small quantity and low value of the dangerous drug in question and that the appellant’s hitherto clear record in respect of drug-related offences.  Having regard to a chance of rehabilitation which should be given to the appellant, the magistrate could, instead of adopting the starting point of 2½ years (30 months) as she did, have in her discretion reduced the starting point to 2 years.

My views on ground of appeal (1)

15.  I first deal with ground (1).  I cannot find anything in her reasons for sentence which shows that the magistrate enhanced the sentence by reason of the “judicial notice”.  When I asked Ms Chong about this, she also conceded that the magistrate had not enhanced the sentence.

16.  The magistrate had not enhanced the sentence by reason of any judicial notice based on her own experience.  Nevertheless, having contended in ground (1) that the magistrate had erred in principle and subsequently realized she had made no such error in principle, the appellant neither amended that ground of appeal nor notified the appellate court that the appellant would no longer rely on that ground; instead it was only when the appellate court made inquiries that the appellant conceded that there had been no enhancement of sentence whatsoever.  By doing so, Ms Chong has, on a serious view of the matter, “misled” the appellate court; or, on a less serious view, has thoughtlessly put forward such ground without first ascertaining the facts, or has put forward such ground carelessly and erroneously.

17.  I cannot emphasize too strongly that the “perfected grounds of appeal” is an important document through which an appellant makes his or her grounds of appeal known to the appellate court.  Upon realizing that a ground of appeal is misconceived, Counsel should immediately inform the court and withdraw the ground instead of leaving it as it is.  I do hope that Ms Chong, and other practitioners for that matter, will understand that they are under a duty to carefully put forward grounds of appeal to the court.

Ground of appeal (2)

18.  Ms Chong’s major complaint was that the starting point of 30 months adopted by the magistrate was manifestly excessive.  She contended that although the appellant had previous conviction records, none of them related to dangerous drugs.  The offences that he committed in the past were relatively minor and for which he had never received a custodial sentence.  Since 2008 when he last committed an offence, he had led a law-abiding life for a period of time before he committed the present offence.  He had injured his leg in an accident and was foolish enough to listen to his friends and consume ketamine to try to alleviate the pain.  In light of the appellant’s personal background, although the lawyer then representing him had not requested the magistrate to take into account the giving of a chance of rehabilitation, the magistrate should, while considering at which point within the range of 2 to 4 years the appropriate starting point should lie, have exercised her discretion and adopted the lowest possible starting point — particularly so when the appellant would have been charged with “possession of a dangerous drug” instead of “trafficking in a dangerous drug” had he not brought the drug across the border into Hong Kong. The appellant had “trafficked in a dangerous drug” for the sole purpose of using the drugs for his own consumption, and the present case differed from other trafficking cases in which dangerous drugs were to be supplied to others.

19.  The appellant contended that, as the magistrate had failed to take into account the “rehabilitation” factor, the appellate court was entitled to consider the sentence afresh and, in exercise of its discretion, to reduce the starting point to 2 years so that the appellant could finish serving the sentence three months earlier.

My views on ground of appeal (2)

20.  The appellant admitted that he had trafficked in a dangerous drug, and the present case plainly involves a cross-border element which is normally an aggravating factor.  Having heard submissions and considered the circumstances, the magistrate accepted that the dangerous drug in which the appellant trafficked at the material time was for “self-consumption”.  She did not enhance the sentence by reason of the cross-border element.

21.  The quantity of ketamine involved in the present case is 2.31 grammes, for which an appropriate starting point of sentence is, on the authority of Hii Siew Cheng, 2 to 4 years.  If the appellant had no conviction record, a starting point of 2 years would have been appropriate. However, with nine previous criminal convictions (although none of them relates to dangerous drugs), the appellant cannot expect to be sentenced on the same basis as that for a first offender.  Strictly speaking, the term of sentence that the magistrate arrived at before giving any “discount” was not the “starting point” because the appellant’s previous records constituted an aggravating factor, and in respect of a first offender, a starting point is the appropriate sentence which the judge arrives at before any aggravating or mitigating factor is taken into account. It follows that the term of 30 months adopted by the magistrate can only be said to be the sentencing basis and not the starting point.

22.  Although Ms Chong has contended that the court should consider giving the appellant a chance to “rehabilitate”, his legal representative at the time of sentencing (who was someone other than Ms Chong) had never raised this issue in mitigation.  In addition, the appellant is already 45 years of age and has nine conviction records.  As his lawyer had not made any reference to rehabilitation as a mitigating factor, there was nothing improper for the magistrate not to take it into consideration.

23.  There are sentencing guidelines for the offence of trafficking in dangerous drugs, and these guidelines are not to be departed from save in exceptional circumstances (although, where applicable, the court of course has a discretion in determining the starting point).  Generally speaking, in this kind of cases, in balancing the need to impose a deterrence sentence in light of the harm posed by the dangerous drugs to the community on the one hand and giving the offender a chance of rehabilitation on the other hand, the latter is accorded less weight.  In fact, in all the circumstances of the present case, while the sentencing basis of 30 months adopted by the magistrate may be said to be on the high side, it cannot in any way be described as manifestly excessive.  The appellate court has to have due respect for the exercise of discretion by the sentencing judge.  As the sentence is not manifestly excessive, I see no reason for interfering with it.

24.  For the above reasons, I have dismissed the appeal against sentence.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor.