HKSAR v. CHOI YIU CHO

CACC 158/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 158 OF 2014

(ON APPEAL FROM DCCC NO. 714 OF 2013)

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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. The applicant seeks leave to appeal against a total sentence of 34 months’ imprisonment imposed on him by District Court Judge G. Lam on 27 September 2013 following his pleas of guilty to a charge of trafficking unlawfully in a dangerous drug on 29 May 2013, namely 8.32 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Charge 1) and a charge of possession of dangerous drugs at the same time and place, namely 0.23 gramme of methamphetamine hydrochloride (“ice”), 0.81 gramme of herbal cannabis and 1.27 grammes of cocaine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (Charge 2).

The facts

2. In the early hours on 29 May 2013, the applicant, who was driving a private car, was stopped at a road block on Castle Peak Road for a routine check.  When asked by a police officer what was contained in two transparent re-sealable plastic bags placed in the storage compartment of the driver’s door the applicant admitted that the substance contained in the plastic bags was ketamine.  Having been arrested and cautioned, the applicant said, “Ah Sir, these 2 packets of ketamine were for selling to others, give me a chance Ah Sir”.

3. A search of the applicant revealed three transparent re-sealable plastic bags concealed in his socks, which were found to contain 0.23 gramme of ice, 0.81 gramme of herbal cannabis and 1.27 grammes of cocaine respectively.  A plastic bag containing 74 smaller transparent re-sealable plastic bags was found inside the applicant’s bag.

4. In a subsequent video-recorded interview conducted under caution, the applicant said that he had bought the two packets of ketamine for HK$2,000 from a man he described as “Ah Yin” inside a games centre in Yuen Long.  He said that he planned to sell the ketamine near Yuen Long for HK$200 to HK$300 for each small packet.  He claimed that following the purchase of the ketamine, Ah Yin gave him the packets of the various drugs found in his socks, which he planned to consume himself.  He said that he intended to use the packets of empty transparent re-sealable plastic bags to package the ketamine for onward sale.

Reasons for sentence

5. In his Reasons for Sentence the judge noted that the applicant had three previous convictions, one of which was for “simple possession”.  That was a reference to the applicant’s conviction on 19 February 2009 or an offence of humble possession of dangerous drugs, as a result of which a Drug Addiction Treatment Centre Order was made.

Starting point

6. Having adverted to the guidelines for sentencing for trafficking unlawfully in ketamine set out in the judgment of this Court in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the judge stipulated a starting point for sentence for Charge 1 of 3½ years’ imprisonment.  In respect of Charge 2, the judge said : “Since a variety of drugs are involved and the cocaine was contained in six packets, I adopt a starting point of 18 months’ imprisonment.”

Discount

7. The judge stated that for the pleas of guilty he afforded the applicant a one-third discount from the starting points taken for sentence.  In the result, he imposed a sentence of 28 months’ imprisonment on Charge 1 and 12 months’ imprisonment on Charge 2.

Totality

8. The judge said that, having considered the principle of totality, he ordered that 6 months of the sentence imposed in respect of Charge 2 was to be served consecutively to the sentence imposed in respect of Charge 1. Accordingly, the total sentence imposed on the applicant was 34 months’ imprisonment.  Finally, the judge ordered that the sentences of imprisonment that he imposed were to be served consecutively to the 2-month sentence that the applicant was serving at the time he was sentenced.

Grounds of appeal against sentence

9. On behalf of the applicant, Ms Chow submitted that the starting point of 18 months’ imprisonment in respect of Charge 2 in the circumstances of this case was manifestly excessive.  She said that although the judge would have been entitled to consider enhancing sentence to reflect a latent risk that the dangerous drugs the subject of Charge 2 might be distributed to others he had not adverted to that at all.  In those circumstances, she submitted that given the amount of drugs involved, and in the absence of an enhancement of sentence to reflect that factor, the starting point for Charge 2 should not have exceeded 12 months’ imprisonment.  As a result, Ms Chow contended that the total sentence of 34 months’ imprisonment was wrong in principle and manifestly excessive.

Application for leave to appeal out of time

10. In the affirmation attached to Form XI, which was filed with the Court on 9 May 2014, the applicant stated : “Since I have grounds now, I wish to apply for leave to appeal out of time”.  Form XI also stated that the applicant sought the grant of legal aid to pursue his application.  On 26 May 2014, the applicant was granted legal aid to pursue his application for leave to appeal against sentence out of time and Ms Monica Chow was assigned as counsel.  Perfected grounds of appeal against sentence settled by counsel were filed with the Court on 14 July 2014.

11. As was noted in the judgment of this Court delivered by Silke VP in R v Wong Kai Kong,[1] although in the exercise of the discretion to extend time in which to make an application for leave to appeal “substantial grounds must be shown for the delay before the granting of the indulgence”, nevertheless this Court will examine the grounds to check that by refusing leave to appeal the Court was not “shutting out a substantial and plainly arguable ground of appeal”.  For the reasons that appear in this judgment, we grant the extension of time sought on the latter basis.

A consideration of the submissions

12. The usual range for sentencing for simple possession of small amounts of dangerous drugs is from 12 months’ to 18 months’ imprisonment.  In the judgment of this Court in HKSAR v Mok Cho Tik [2] Stock JA, as Stock NPJ was then, said :

“ Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. 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.’

13. There is no dispute that, if the judge’s reference to Charge 2 being concerned with a “variety of drugs” and his observation that that the cocaine was contained in six packets, were allusions to the existence of a latent risk that the dangerous drugs would be distributed to others the judge did not warn counsel that he was considering the issue or invite counsel to address him on the matter.  Similarly, the issue of latent risk was not raised by counsel.

14. Further, there is no dispute that fairness demands that if a judge is minded to enhance sentence for possession only of dangerous drugs, having regard to the latent risk of distribution of dangerous drugs to others, the defendant is to be warned of that consideration.  As Ms Chow pointed out the matter was addressed directly in the judgment of this Court delivered by Fok JA, as Fok PJ was then, in HKSAR v Minney.[3]  Having considered the circumstances relevant to the issue of enhancement identified in the judgment of this Court in HKSAR v Wan Sheung Sum, he said of the necessary procedure :[4]

“ If a judge is minded to enhance sentence on the basis of risk of dissemination, he must forewarn counsel for the accused, to enable the accused to challenge the issue, if necessary by the giving of evidence;”

15. In light of the judge’s remarks as to the variety of dangerous drugs involved in Charge 2 and the fact that the cocaine was found packaged in six packets, together with the fact that the judge stipulated as the starting point for sentence the top end of the range of sentence for unlawful possession of dangerous drugs for relatively small quantities of dangerous drugs, we are satisfied that there is force in Ms Chow’s submission that the judge is to be taken as having had regard to the factor of latent risk in determining the appropriate sentence.  If he was minded to do that, the judge was required to “forewarn counsel for the accused”.  In not doing so, the judge fell into error.

16. In those circumstances, we approach the issue of the appropriate sentence for Charge 2 on the basis of possession of the dangerous drugs simpliciter, without having regard to the issue of latent risk.  Disregarding the very small quantity of herbal cannabis but having regard to the applicant’s possession of 0.23 gramme of ice and 1.27 grammes of cocaine only it is clear that the sentence of 18 months’ imprisonment imposed by the judge was manifestly excessive.  We are satisfied that the appropriate starting point for sentence of imprisonment for Charge 2 is 12 months’ imprisonment.  Affording the applicant a one-third discount the appropriate sentence is 8 months’ imprisonment.  In those circumstances, the judge’s order that 6 months of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1 is itself manifestly excessive.  In our judgment, the appropriate total sentence is to be achieved by ordering that 3 months only of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence imposed in respect of Charge 1.

Conclusion

17. In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, quash the sentence of 12 months’ imprisonment imposed in respect of Charge 2, together with the order that 6 months of that sentence be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  In their place, we substitute a sentence of 12 months’ imprisonment in respect of Charge 2 and order that 3 months of that sentence be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence of imprisonment imposed on the applicant for Charges 1 and 2 is 31 months’ imprisonment.  We make no other order.  So, those sentences are to be served consecutively to the sentence of 2 months’ imprisonment the applicant was serving for another offence that time he was sentenced by the judge.

[1]  R v Wong Kai Kong [1990] 1 HKC 279.

[2]  HKSAR v Mok Cho Tik [2001] 1 HKC 261, page 267 B-E.

[3]  HKSAR v Minney [2011] 3 HKLRD 556.

[4]  HKSAR v Minney;page 569, paragraph 31.