R. v. LEE SIU LUNG

IN THE COURT OF APPEAL

1994, No.529
(Criminal)

HEADNOTE

Sentencing for "simple possession". The proper approach to the assessment of sentence when giving weight to the latent risk factor.

IN THE COURT OF APPEAL

1994, No.529
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced two charges of possession of a dangerous drug - an offence which is usually known as "simple possession". He was not charged with trafficking. He was apprehended at 2.15 p.m. on a village path at Tin Sum Sun Chuen, Yuen Long, and upon apprehension dropped two packets of heroin to the ground. These were seized and were found to contain 48.96 grammes of a mixture containing 18.28 grammes of salts of esters of morphine. The applicant was then escorted to his residence where two further packets of heroin were seized. These contained 3.37 grammes of a mixture containing 1.23 grammes of salts of esters of morphine. The defendant pleaded guilty. Mr. Andrew Powner, who appeared for him, submitted that the offence was "symptomatic" and suggested that a Drug Addiction Treatment Centre order was a possibility. The judge ordered that a report be furnished.

2. His record revealed that he had on six previous occasions been convicted of the offence of possession of dangerous drugs but had never been convicted of a trafficking offence. He had, on three previous occasions, been sent to a drug addiction treatment centre. The report from the Centre stated that he was not recommended for further treatment.

When sentencing the judge made the following comment:

"His personal history reveals, since 1985, a continual pattern of drug abuse. He has been sent for treatment to the Drug Addiction Treatment Centre on four previous occasions. He says that the amount that was found on him was for personal consumption. I have no doubt that is true for some of the drugs seized. I am concerned however when looking at the amount involved and his financial capability and commitments that there is a danger of him being tempted to traffic and that the latent risk talked of in the cases of R. v. Chiu Hung Wong CA 39/1993 and R. v. Choi Tung Chung CA 40/1993 exists equally in this case." (Emphasis supplied.)

The applicant was sentenced to two years on the first charge and to nine months on the second charge, and the sentences were ordered to be concurrent. The judge took two years and six months as the overall starting point which he reduced, because of the plea, to two years. While the judge was entitled to consider the "latent risk factor" he was not entitled, prior to so doing, to take the view that at the time of apprehension the applicant had some of the drugs in his possession for personal consumption and some for another purpose, i.e. some form of trafficking. The judge's use of the words: "I have no doubt that is true for some of the drugs seized." seems to indicate that this is what he did. Simple possession had been charged and the mitigation had been conducted upon that basis. The judge was required to sentence upon that basis. It is one thing for a judge, when sentencing, to say that he accepts that the accused had drugs in his possession for his own consumption but takes into account the damage to the community posed by the possession of that quantity of drugs in the unstable hands of an addict, even one who intends them for his own consumption. It is quite another for a judge to say that he does not accept that the accused had possession of all of the drugs for his own consumption and to sentence him upon that basis. The latter approach would only be permissible upon a plea to a charge of trafficking.

Miss Hartstein, who appears for the Crown, asks us to take the view that the judge, when he said that he had "no doubt that ......... some of the drugs" were for personal consumption, was doing so more than indicating the existence of a "latent risk" factor. We are not persuaded that we could properly take that view.

Whatever sentence might have resulted had the "latent risk" factor been properly applied we are satisfied that the applicant is, as matters stand, entitled to feel a justifiable sense of grievance.

The appeal must succeed. The sentence of two years on the first charge is varied to a sentence of one year. The sentence on the second charge will stand and will remain concurrent with that on the first charge.