HKSAR v. WONG KAM KAI

CACC 214/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 214 OF 2010

(On Appeal From District Court Criminal Case No. 1342 of 2009)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

Facts

1.  The applicant pleaded guilty to two charges :

(1) possession of dangerous drugs, namely, 17.69 grammes of methamphetamine hydrochloride (‘Ice’), contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (Cap. 134) (‘the Ordinance’); and

(2) possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Ordinance.

2.  H H Judge Lok sentenced the applicant to 16 months’ imprisonment.  The applicant now seeks leave to appeal against sentence.

Facts

3.  In the early hours of 10 October 2009 the Police conducted a search at the applicant’s flat in Shanghai Street and found

(1) the drugs;

(2) one glass bottle with a plastic straw containing liquid which had traces of ‘Ice’; and

(3) one piece of tinfoil containing traces of ‘Ice’

4.  The applicant admitted to the Police that the ‘Ice’ was for his consumption.  The glass bottle with the straw and the tinfoil belonged to him and he used them for consuming ‘Ice’.  He told the Police that the ‘Ice’ was bought in Hong Kong in late September 2009 for $8,000.  The ‘Ice’ was consumed once and had never been offered to anyone else.  The flat was bought by him a year ago and he lived there alone.  Apart from himself no one had the keys to the flat. 

The applicant

5.  The applicant is 52 years of age.  He was born in Guangzhou.  He came to Hong Kong in 1979 and worked as a construction worker.  In 1986, he became a hostel attendant. In mid 1990 the applicant set up a hostel with friends in the Mongkok area. Prior to his arrest the applicant was the part owner of two hostels and had an average income of $30,000 every month.  The applicant has a co-habitant Madam Mok and they have three children aged 13 to 20.  The applicant has five previous convictions, one being of a similar nature.  He was fined $2,500 on 15 April 2009 for possession of a dangerous drug.  The applicant started using ‘Ice’ in 2008.  His last consumption was in 2010 when he was on bail in respect of the present offence. 

The three-step approach

6.  In HKSAR v. Wan Sheung Sum this Court (Stuart-Moore VP and Wong JA) [2000] 1 HKLRD 405 affirmed the three-step approach in sentencing for possession of dangerous drugs, namely,

(1) a starting point of between 12 months and 18 months’ imprisonment;

(2) enhancement to take account of the latent risk factor of re-distribution of the drugs; and

(3) adjustment of sentence to take into account mitigation.

7.  This Court pointed out the latent risk will be determined from all the circumstances of the case including the quantity of drugs and the personal circumstances of the offender.

8.  In the present case, the Judge applied the three-step approach.  He adopted a starting point of 18 months’ imprisonment and enhanced it by 6 months because of the latent risk factor.  A one-third discount was applied to the sentence of 24 months’ imprisonment, arriving at a final sentence of 16 months’ imprisonment. 

9.  In respect of the 2^nd charge, the Judge adopted 12 months’ imprisonment and reduced it by one third to eight months’ imprisonment which is to be served concurrently with the 1^st sentence of 16 months’ imprisonment.

The starting point

10.  Mr. Cheng Huan SC who appeared together with Mabel Tsui as counsel for the applicant argued that in Wan Sheung Sum a starting point of 16 months’ imprisonment was adopted for 34.33 grammes of Ice.  We note, however, in HKSAR v. Mok Cho Tik [2001] 1 HKC 261 this Court (Stuart-Moore and Mayo VPP and Stock JA) held that a starting point of 18 months’ imprisonment was appropriate for possession of 15.724 grammes of ‘Ice’ and in HKSAR v. Jarhia Kuldeep Singh, CACC 96 of 2006, a starting point of 15 months’ imprisonment was adopted for 6.82 grammes of Ice.  Stock JA pointed out in Mok Cho Tik at page 267C that the quantity of drugs will be the main governing factor which will determine where the starting point will lie. 

11.  In our view the Judge correctly applied a starting point of 18 months’ imprisonment for the 17.69 grammes of ‘Ice’.

The enhancement

12.  The remaining issue in this appeal is whether the Judge was correct to enhance the sentence by 6 months.

13.  Mr. Cheng submitted that there was no evidence of any latent risk to justify enhancement of the sentence.  He argued that the Judge seemed to have taken the quantity of drugs into account twice both in the starting point and in the enhancement.  The Judge had already given the high starting point of 18 months’ imprisonment.  The Judge had referred to the DATC report which indicated that the applicant had mixed with peers who led him to the drug habit and on that basis he held that there was a risk of re-distribution of drugs.  Counsel argued that in the particular circumstances of the case such risk was not substantial enough to warrant consideration due to the following factors : 

(1) the applicant has no previous conviction for trafficking in drugs;

(2) the applicant has a stable income and a good financial background;

(3) the applicant’s good living conditions;

(4) no one else had the keys to the flat in which the drugs were kept; and

(5) the applicant owned at least two properties. He was living alone at the place where he was arrested. The drugs were concealed in a drawer in a bedroom and all the evidence suggested that the drugs were for his own consumption.

Our view

14.  In our view the quantity of the drugs is clearly relevant both for the purpose of considering the starting point and enhancement. 

15.  In Mok Cho Tik Stock JA stated at 267D-F that

‘The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.’ (emphasis added)

16.  In the present case the quantity of drugs are substantial enough to be given weight for enhancement.  We observe that in respect of a trafficking charge, 10 grammes of Ice will attract a sentence of seven years’ imprisonment.  6 months’ enhancement was adopted in Wan Sheung Sum for 38 grammes of ‘Ice’.  12 months was adopted in Mok Cho Tik for 15.724 grammes of ‘Ice’ when there was admission by the applicant that others will come up to his premises to take drugs together.  In Jarhia Kuldeep Singh a 12 months’ enhancement was adopted for 6.82 grammes of ‘Ice’. 

17.  It was stated in the DATC report that the applicant was living with his family in a flat in Nathan Road.  But we also observe the applicant had said that at the time of the offence he was living in the flat in Shanghai Street where the drugs were found.  Before   the police entered the flat with a search warrant, a female was leaving the flat.  This showed that the flat was accessible by others as well.  In our view the Judge was also entitled to take into account the circumstances in which the applicant started his drug habit and the likelihood of the applicant sharing the drugs with others in deciding whether enhancement of sentence should be made. 

18.  Mr. Cheng also referred us to the medical report of the applicant’s mother who recently had a stroke and is now in a hospital in the Mainland.  It is said that the applicant wishes to see his ailing mother in the Mainland.  We note that no application was made earlier when the applicant was on bail for permission to leave Hong Kong to see his mother.  In any event we do not regard this to be a matter that will reduce the sentence.

Conclusion

19.  Despite the extremely persuasive argument of Mr. Cheng, in our view, there is no merit to the application and it is accordingly dismissed.