HKSAR v. WONG HON CHIU

CACC 137/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 137 OF 2015

(ON APPEAL FROM HCCC NO. 57 OF 2015)

________________________

________________________

________________________

J U D G M E N T

________________________

Introduction

1. On 30 January 2015, the applicant pleaded guilty at the Eastern Magistracy to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, whereupon he was committed to the High Court for sentence.  He appeared before Deputy High Court Judge Tallentire on 1 April 2015, who sentenced him to 5 years and 4 months’ imprisonment.  He now seeks leave to appeal against sentence.

The facts

2. In the morning of 3 August 2014, the applicant was intercepted by police officers at Tseuk Luk Street, San Po Kong, Wong Tai Sin, Kowloon.  In the rucksack he was carrying were found 16 transparent re-sealable plastic bags, each containing 20 pellets of suspected heroin.  He was arrested for trafficking in a dangerous drug; under caution, he admitted he was delivering the “white powder” for a reward of $1,500.  The suspected heroin was subsequently found to be 66.8 grammes of a mixture containing 50.2 grammes of heroin hydrochloride, with an estimated street value of $57,114.

The applicant’s antecedents

3. The applicant was 57 years of age at the time of his sentence.  He had appeared before the courts on 30 occasions and been convicted of a total of 57 offences, including 12 for possession of dangerous drugs and 4 for trafficking in a dangerous drug.  There was a further conviction for possession of apparatus intended for the consumption of dangerous drugs.  All of his appearances had been before the magistrates’ courts, except for one conviction for possession of dangerous drugs for the purpose of unlawful trafficking, when he was sentenced by the District Court to 2½ years’ imprisonment.  His most recent conviction for trafficking in a dangerous drug was in September 2008 at the magistracy where he received 16 months’ imprisonment.

Mitigation

4. In mitigation, the judge was told that the applicant was a casual worker at a construction site with a monthly salary of $13,000.  Counsel for the applicant submitted on instructions that the applicant did not expect the quantity of the heroin he was to deliver for a friend to be so large, and that one packet of the heroin concerned was for the applicant’s own consumption.  He stressed that the applicant had co-operated with the police and had entered an early plea in order to show remorse.  He agreed that the applicable range of sentence for the quantity concerned was between 8 and 12 years’ imprisonment.

Reasons for sentence

5. In sentencing the applicant, the judge referred to the sentencing guidelines for trafficking in just over 50 grammes of heroin hydrochloride narcotic, namely 8 to 12 years’ imprisonment (see R v Lau Tak Ming & ors[1]), and adopted a starting point of 8 years’ imprisonment.  The judge noted what he described as the “appalling” criminal record of the applicant but said that it was “to some extent” balanced by his early plea and cooperation with the authorities.  He had earlier summarised the applicant’s criminal record, which included 17 previous convictions for dangerous drugs, including what he said were 10 for trafficking in a dangerous drug.[2]  With respect, that was a slip on the part of the judge: there were in fact only 4 previous convictions for trafficking.  Giving the applicant a one-third discount for his guilty plea, the judge sentenced him to 5 years and 4 months’ imprisonment.

Ground of appeal against sentence

6. In the applicant’s statement attached to his Notice of application for leave to appeal against sentence filed on 28 April 2015, the applicant avers that the correct starting point should have been 7½ years’ imprisonment. In his home-made written submissions filed on 8 July 2015, the applicant submits that his counsel had told the judge in mitigation that one packet of the dangerous drugs found in his possession was for his own consumption, yet the judge made no reference to, and gave no credit for, this matter in sentencing.  Before me this morning, he says that if it had been accepted that some of the drugs were for his own consumption, he would not even have been before the High Court for sentence.  He relies on HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 for the proposition that he should have been granted a further 10% to 25% reduction in sentence for the factor of his own consumption.  In Chow Chun Sang, the Court of Appeal had said, at 1126 (para 19):

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant. We need to emphasise that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

Consideration

7. It is true that the applicant’s counsel did mention that “a packet is for his own consumption – a packet of dangerous drugs”.[3]  It is also true that the judge did not mention this factor in his reasons for sentence.  So, we do not know what part it played in his sentencing approach.  On the assumption most favourable to the applicant that “a packet” meant one of the 16 re-sealable plastic bags (of roughly equal weight[4]), and if the judge accepted this mitigation, then the applicant fell to be dealt with for trafficking in about 47 grammes of heroin narcotic, and simple possession of the remainder.  47 grammes would have brought the applicant within the bracket of 5 to 8 years’ imprisonment after trial for between 10 and 50 grammes of heroin hydrochloride.  So, potentially, the issue did make a difference to the starting point after trial, although clearly it would still have been a quantity which would have brought the applicant before the High Court.

8. On the other hand, as the Court in HKSAR v Wong Suet-hau & anor [2002] 1 HKLRD 69 pointed out, at 78G-J:

“…in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the courts’ stern approach to drug offences, sentencers will need to examine with particular care any assertion by a proved or self-confessed trafficker, that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted, as having been intended for self-consumption, carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true “mixed” cases, the difference in sentence, if any, will be slight.”

9. Ms Liu, for the respondent, submits by reference to this authority and the case of Chow Chun Sang that the discount from the starting point for self-consumption must depend on the circumstances, which would include the proportion of the drugs claimed to be for self-consumption.  She argues that a single packet would not have had any significant impact on the starting point or final sentence, particularly as simple possession of one packet was itself a serious offence, which would have attracted a sentence of imprisonment.

10. In my view, assuming that the mitigation concerning self-consumption was accepted by the judge, and accepting that simple possession of what he contended was for his own consumption with the obvious latent risk factor was itself a serious matter, it is arguable that there may have been a “slight” difference in the starting point adopted by the judge.

11. However, the judge was concerned in his reasons for sentence about the applicant’s lengthy criminal record for similar offences, which he termed “an aggravating feature”.[5]  Even if there could have been a slight adjustment of the starting point for the element of self-consumption, it was effectively counteracted by the aggravating feature of no less than 4 previous convictions for similar offences of trafficking (or possession of dangerous drugs for the purpose of trafficking), for which the applicant had already served an accumulated sentence of more than 7 years.

12. In the circumstances, I do not, as matters presently stand, think there is an arguable ground of appeal that the resulting sentence of 5 years and 4 months’ imprisonment was manifestly excessive and/or wrong in principle.  However the judge went about the process of arriving at the notional sentence after trial, an appellate court will still have to examine whether the final sentence is open to appeal.

13. Accordingly, this application is refused.  The applicant is duly advised of his right to renew his application to the Court of Appeal but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of this application.

[1] [1990] 2 HKLR 370

[2] Appeal Bundle, page 5S

[3] Appeal Bundle page 8L

[4] The Court was shown prosecution photographs of the packets in question, which clearly suggested that each of the 16 plastic bags was of similar content and weight.

[5] Appeal Bundle, page 6J