HKSAR v. LAU CHI CHIU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 395
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted after a trial before Beeson J. of possession of 121 tablets containing 6.142 grammes of diazepam and 65.33 grammes of a crystalline solid containing 63.38 grammes of methamphetamine hydrochloride namely ice. He was sentenced to 3 years' imprisonment. He now seeks leave to appeal against this sentence.

2. The facts were very simple. The police conducted a raid at the premises occupied by the Applicant at Tai Po early in the morning of the 8th July 1997. The dangerous drugs referred to above were found. The Applicant admitted possession of the dangerous drugs but claimed that they were for his own use.

3. At the trial the Applicant was charged with possession for the purpose of trafficking. He was acquitted of this charge and found guilty on the alternative count of possession.

4. The main ground advanced on this application is that as the applicant has at all times been prepared to admit his possession, he should receive the 1/3 discount which is normally given for a guilty plea.

5. Unfortunately a perusal of cases where this situation has been considered does not indicate a clear answer to the problem.

6. In the present case the Judge looked mainly to HKSAR v Chan Yat-sing unreported being Cr App 777 of 1997 for guidance. Power V-P. who delivered the judgment of the court said this on p.2 of the judgment.

"The Judge expressed reluctance to follow the guidelines applicable to trafficking charges. This reluctance is understandable. In fact she could properly have ignored those guidelines. The sentencing problem when a person who has had possession of a large quantity of drugs is found guilty of simple possession only is not an easy one. We are satisfied that the trial Judge, starting as she did with the sentence for trafficking and then adjusting that sentence down was wrong in her approach to sentencing. The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession. This would be a year to 18 months. That sentence then has to be enhanced because of the latent risk factor. In this case that factor was one of very considerable weight. The applicant was formerly a heroin user. He then switched to ice. He lived on the fringe of the criminal underworld selling pirated compact disks. Giving full weight to the jury's verdict and taking into account all of the matters which we have outlined above, in particular the very real danger of dissemination of the drugs, we are satisfied a sentence of 3 1/2 years would be appropriate and the sentence is therefore, varied from one of five years to one of 3 1/2 years."

7. On this basis when she gave reasons for the sentence she imposed the Judge said:

"There are various cases relating to 'Ice' sentencing and there are difficulties involved in deciding on the level of sentence where the conviction is for possession, but of a substantial quantity of dangerous drugs. I have been referred to R v Wu Chi-wai, Cr App no. 680 of 1995, R v CHAN Sing-hing, Cr App no. 725 of 1996 and HKSAR v CHAN Yat-sing, Cr App no. 777 of 1997. Those are all useful - however, I have a more recent decision by the Court of Appeal in respect of a sentencing that I did myself. This is the case of HKSAR v CHAN Yat-sing -- I am sorry, this is the -- I am sorry. Could I just go back to that.

The other case I was referred to was HKSAR v LAM Wai-yip, Cr App no. 214 of 1997. I refer, also, to HKSAR v CHAN Yat-sing, Cr App no. 777 of 1997, a case that I dealt with where, similarly, the jury, on a trafficking charge, brought back a verdict of possession in relation to a quantity of 'Ice', that was 95.36 grammes of methamphetamine hydrochloride. The Court of Appeal discussed that sentence and re-arranged it, pointing out that the proper starting point that should be imposed in a case such as this for simple possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession, this would be a year to 18 months.

The Court of Appeal then indicated that the sentence then has to be enhanced because of the latent risk factor - the risk factor being, of course, the risk that the drugs fall into the hands of other persons because of the unstable character of the person currently holding them. Given the length of the defendant's involvement with drugs and the nature of the dosage he was taking, this was quite a real risk. In that particular case - the case of CHAN Yat-sing - the court varied the sentence of five years to one of three and a half years.

In this case, I adopt a starting point of 18 months and enhance that because of the latent risk factor to three years. I do this, taking into account the quantity of the drug - the difference in the quantity of the drug. (Reference with CHAN Yat-sing) Accordingly, this defendant is sentenced to three years' imprisonment."

8. The Judge cannot in any sense be criticised for her approach to sentencing. She was loyally following the approach adopted by the Court of Appeal in Chan Yat-sing.

9. However we think it necessary to say that we were clearly in error in that decision by failing to take into account the discount to which Chan was entitled by what was, in effect, a plea of guilty to simple possession of drugs.

10. A defendant who is prepared to plead guilty to being in possession of dangerous drugs but is unable to do so by virtue of the fact that the prosecution insist upon proceeding with a trafficking charge is placed in an invidious position. This is a matter which is beyond the control of a defendant and it is unfair that he should be penalised by not receiving a 1/3 discount notwithstanding the fact that his contention that he was simply in possession of the drugs has been vindicated. We are satisfied that the interests of justice dictate that a defendant faced with this dilemma should receive the full 1/3 discount if he has made clear from the outset his willingness to plead guilty to possession.

11. The only other question which has to be considered is the amount to be added to the sentence to reflect the latent risk attaching to a defendant having in his possession a large quantity of dangerous drugs and the possibility of his succumbing to temptation and trafficking in the drugs. It is not possible to lay down any hard and fast rules for this. The main factors which will have to be weighed are the quantity and type of drug and the living conditions of the defendant. Undoubtedly these questions would have to be considered before the application of the 1/3 discount which would be calculated on the total sentence arrived at by the Judge including the added latent risk factor.

12. As we have indicated earlier, no discount appears to have been given to the Applicant in Chan Yat-sing who found himself in a similar situation to the Applicant in this case.

13. In these circumstances Chan may well consider it to be in his best interests to seek leave to appeal to the Final Court of Appeal out of time pursuant to s.32 of the Hong Kong Final Court of Appeal Ordinance, Cap. 484 as he may be able to demonstrate that substantial and grave injustice has been done.

14. So far as the present case is concerned the application is allowed. Treating it as the appeal the sentence of 3 years' imprisonment is reduced to 2 years.