HKSAR v. LAM CHEUK HEI

CACC 7/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 7 OF 2017

(ON APPEAL FROM DCCC NO. 600 OF 2016)

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J U D G M E N T

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

1.  With leave granted by Macrae JA on 28 June 2017, the appellant appeals against the sentence of 4 years and 8 months’ imprisonment imposed on him by District Court Judge A Kwok, on 15 December 2016, following his plea of guilty to a charge of unlawfully trafficking in dangerous drugs on 16 March 2016, namely: (i) 17.88 grammes of heroin hydrochloride; (ii) 0.15 grammes of a solid containing cocaine; (iii) 1.87 grammes of methamphetamine hydrochloride (“Ice”); and (iv) 0.40 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The facts

2.  At about 3:30 p.m. on 16 March 2016, police officers intercepted the appellant who was sitting in the driver’s seat of a motorcar parked outside the G/F of Fuk Ming Building, 32-40 Fuk Tsun Street, Tai Kok Tsui, Kowloon.  A search of the motorcar revealed the presence of a brown messenger bag on the front passenger seat.  It was found to contain four red-lined transparent re-sealable plastic bags, which in turn were found to contain 149 individually wrapped pellets of a total of 17.88 grammes of heroin hydrochloride.  In addition, it contained two transparent re-sealable plastic bags, containing a total of 0.15 grammes of a solid containing cocaine; two transparent re-sealable plastic bags containing a total of 1.87 grammes of Ice and a silver metallic cylinder, attached to a keychain and keys, containing 0.40 grammes of ketamine.

3.  The appellant was found to be possession of $1,226 in cash and four mobile telephones.  In a video record of interview conducted of the appellant on 17 March 2016, the appellant claimed that he had bought all the dangerous drugs for his own consumption and that “he mostly consumed heroin ‑ about six to seven pellets per day.”  He said that he worked as a construction site worker, earning $20,000 per month.  He was of no fixed abode, but lived in hotels.

4.  It was admitted that the total retail value of the dangerous drugs was $17,143.  In pleading guilty to the charge, the appellant accepted that he was in possession of the dangerous drugs for the purpose of unlawfully trafficking in them.

Mitigation

5.  In mitigation, it was acknowledged by Mr Carl Yuen, who appeared before the court below as he did before us, that the appellant was an unemployed man of 35 years of age, but the court was asked to note that he was a long-standing blood donor, who had registered as an organ donor.  It was submitted that some of the dangerous drugs were for the appellant’s self-consumption.  At the outset, Mr Yuen submitted that the appellant had a dependency on heroin and was addicted to Ice.  In support of the former, he pointed to what the appellant had said under caution, namely that “he mostly consumed heroin – about two to seven pellets per day”.  In face of the suggestion by counsel that the appellant “could have consumed part of the dangerous drugs in his possession”, the judge observed that was was not something that could merely be the subject of a submission from the Bar table.  However, Mr Yuen indicated that the appellant was not going to give or call evidence on the issue.

Reasons for sentence

6.  In imposing sentence, the judge noted that the appellant had 17 previous convictions, of which five were for offences of possession of dangerous drugs.  Having observed that the appellant was trafficking unlawfully in four different kinds of dangerous drugs, the judge said that, whilst heroin accounted for the greatest quantity, Ice was the most serious kind of dangerous drug involved.

7.  Then, the judge adverted to the judgments of this Court in which guidelines had been given for sentencing in respect of the four different kinds of dangerous drugs involved:

“ For “Ice”, up to 10 grammes of quantities, the starting point is 3 to 7 years’ imprisonment.^[1]  For heroin, between the quantities of 10 grammes to 50 grammes, the starting point is between 5 to 8 years.^[2] For cocaine, the sentencing guideline for heroin is applicable to cocaine.^[3]  Lastly, for ketamine, up to 1 gramme, the Court of Appeal has said that it is within the sentencing discretion of the court.  Usually, it is generally below 2 years.^[4] ”

8.  Having acknowledged that in sentencing a defendant for unlawfully trafficking in different kinds of drugs “there is the individual approach to sentencing and also the combined approach”, the judge said that he adopted the combined approach.  In determining the appropriate sentence to impose, the judge said:^[5]

“ The most serious kind of dangerous drugs is “Ice” and there is 1.87 grammes of “Ice” in this case. According to the guidelines, it carries a starting point of 3 years. Taking into account the presence of the other three different kinds of dangerous drugs, with the most quantity being heroin (17.88 grammes), according to the guideline, that alone will attract a starting point of 6 years’ imprisonment. I shall therefore use 3 years as the basic starting point and then enhance this starting point by taking into account the different quantity of the dangerous drugs involving heroin, cocaine and ketamine. In the end, I add 4 more years to reflect the present quantity of these three different kinds of dangerous drugs. Thus, the basic starting point before any deduction would be 7 years’ imprisonment.”

Self-consumption

9.  Having adverted to the judgment of this Court in HKSAR v Liu Ming Sze ^[6], the judge said that this Court “made it plain that the discount of self-consumption as stated in the often-cited case of HKSAR v Chow Chun Sang [2012] HKLRD 1121 only applies when the portion of self-consumption is significant.”  Then, having said that he had regard to the factors enumerated in the judgment of this Court in HKSAR v Wong Suet Hau ^[7] relevant to a consideration of whether “a significant proportion of drugs was intended for self‑consumption”, the judge said “I would not accept that for the present quantity of drugs, any part of the “Ice” was for his own consumption but I find that all of the “Ice” in question was in fact for the purpose of trafficking.  I would not therefore further reduce the sentence on account of self-consumption.”

Discount

10.  The judge said that he afforded the appellant a discount of one‑third to reflect his plea of guilty.  Accordingly, he reduced the starting point taken for sentence of 7 years’ imprisonment and imposed a sentence of 56 months’ imprisonment on the appellant.

The determination of the single judge

11.  At the hearing of the application for leave to appeal against sentence, Macrae JA determined that it was not reasonably arguable that the judge erred in refusing to afford the appellant a discount in sentence for the asserted intended self‑consumption of part of the Ice and to reflect the fact that the appellant was a blood donor.  Leave to appeal was granted on the basis that the enhancement of 4 years’ imprisonment of the starting point of 3 years’ imprisonment was manifestly excessive.

Appellant’s submissions

12.  In his written submissions, Mr Yuen submitted that the sentence of 56 months’ imprisonment was manifestly excessive.  He said that the application of the ratio test resulted in the stipulation of a starting point for sentence of 71 months’ imprisonment.^[8]

13.  Mr Yuen acknowledged that the judge was entitled to enhance that starting point to reflect the fact that the appellant trafficked unlawfully in four different types of dangerous drugs and the fact that two of the dangerous drugs were ketamine and Ice, which when consumed together posed a greater harm to the abuser.  Mr Yuen suggested that an appropriate enhancement for those two factors was 3 months’ imprisonment to reflect the fact that there were two or more dangerous drugs and 2 months’ imprisonment to reflect the combination of ketamine and Ice.  So, he suggested that the appropriate enhanced starting point to be taken for sentence was 76 months’ imprisonment.  Affording the appellant a discount of one-third, Mr Yuen submitted that the resulting sentence was 50.67 months’ imprisonment, which he suggested could be “rounded up” to 51 months’ imprisonment.

14.  However, in his oral submissions, although he vacillated between the two positions, ultimately Mr Yuen adopted the approach taken by Mr Ira Lui, for the respondent, namely that the judge should have approached the determination of sentence by having regard to the combined quantities of heroin and cocaine to establish a base starting point of 5 years and 7 months’ imprisonment.  Again, accepting Mr Lui’s approach he said that sentence was to be enhanced to reflect unlawful trafficking in Ice and ketamine.  He submitted that the appropriate enhancement was 6 months’ imprisonment, the lower end of the range of enhancement suggested as appropriate by Mr Lui.

Respondent’s submissions

15.  Mr Lui, on behalf of the respondent, submitted that whilst the judge was correct in using the combined approach, he should nevertheless have used heroin and cocaine (not Ice) for his calculation of the base starting point.  That was a common sense approach, given that the total quantity of heroin and cocaine of the whole quantity of dangerous drugs was 88.82% of the narcotic content.  The sentencing guidelines for heroin and cocaine were the same.  Adopting that approach, Mr Lui said that the resulting base starting point was 5 years and 7 months’ imprisonment.

Enhancement of sentence to reflect trafficking in Ice and ketamine

16.  Mr Lui submitted that an enhancement of sentence in the range of 6 to 9 months’ imprisonment was justified to reflect the fact of unlawful trafficking in Ice and ketamine.  That produced a sentence in the range of 6 years and 1 month’s imprisonment and 6 years and 4 months’ imprisonment.

Ratio test

17.  Forhispart,MrLuiacknowledgedthatanapplicationof the ratio test resulted in the identification of a sentence of 71 months’ imprisonment.

Aggravating factors in the commission of the offence

18.  Mr Lui said that there were a number of factors in aggravation in the commission of the offence.  First, the appellant was unlawfully trafficking in a total of four different dangerous drugs.^[9]  Secondly, he had been convicted of a number of offences of possession of dangerous drugs.^[10]  Thirdly, the appellant had committed this offence whilst on bail for the offence of possession of dangerous drugs, for which he was convicted and sentenced to 3 months’ imprisonment on 16 June 2016.^[11]  That offence had been committed on 16 February 2016.  He acknowledged that neither the judge who sentenced the appellant nor the single judge, who dealt with the application for leave to appeal against sentence, had been informed of that fact.  In his oral submissions, Mr Lui submitted that the commission of the offence whilst on bail for an offence of possession of dangerous drugs was an aggravating factor which, depending on the circumstances of an individual case, was to be reflected by an enhancement of sentence by the sentencing judge.  He submitted that broadly speaking the range of enhancement lay between 3 and 6 months’ imprisonment.

A consideration of the submissions

19.  Whilst we acknowledge the strong element of common sense in Mr Lui’s suggestion that the combined narcotic content of the heroin and cocaine was the appropriate basis to establish the base starting point, nevertheless we are satisfied that it is appropriate to have regard to the ratio test which, the parties are agreed, results in the stipulation of a sentence of 71 months’ imprisonment.

20.  Wearesatisfiedthatthejudgefellintoerrorinstipulating a “basic starting point before any deduction” of 7 years’ imprisonment.  Although he did not condescend to any particularity, it is clear that in stipulating that sentence, the judge had regard to the fact that the appellant trafficked unlawfully in four different dangerous drugs.

21.  As noted, realistically Mr Yuen has conceded that the base starting point is to be enhanced to reflect the fact that not only was the appellant trafficking unlawfully in four different dangerous drugs but also that two of them, namely Ice and ketamine, when used in combination pose a greater threat to abusers.  On the other hand, as the single judge noted, the appellant unlawfully trafficked in relatively small amounts of Ice and, in particular, ketamine.  In the result, we are satisfied that those two factors merit an enhancement of sentence of 6 months’ imprisonment.

22.  It is now known to this Court, but unfortunately not made known to the sentencing judge or Macrae JA, sitting as the single judge, that the appellant committed this offence within one month of being granted bail in respect of his commission of an offence of possession of dangerous drugs on 16 February 2016.  That is a serious factor in aggravation of the commission of this offence.  That is so whether or not, as was the case here, bail was granted by the police or, in other circumstances, by a court.^[12]  In our judgment, it is appropriate to enhance sentence by 4 months’ imprisonment to reflect this factor.

23.  Accordingly, we are satisfied that the appropriate enhanced starting point for sentence was 81 months’ imprisonment.  Affording the appellant a discount of one-third from that taken as the enhanced starting point for sentence, the appropriate sentence to be imposed on the appellant is 54 months’ imprisonment.

Conclusion

24.  For the reasons that we have given, we allow the appeal against sentence, quash the sentence of 56 months’ imprisonment and substitute in its place a sentence of 54 months’ imprisonment.