HKSAR v. CHEUNG KA YAN

CACC 406/2014

CRIMINAL APPEAL NO 406 OF 2014

(ON APPEAL FROM HCCC 47/2014)

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REASONS FOR JUDGMENT
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Hon Pang JA (giving the reasons for judgment of the court):

1.  The appellant was charged with one count of trafficking in 26.92 grammes of methamphetamine hydrochloride (‘ICE’), for which her plea to the lesser offence of possession was accepted. She was sentenced by Toh J, the trial judge, to 2 years and 4 months’ imprisonment (20 November 2014). Aggrieved, the appellant applied for and was granted bail pending appeal (14 January 2015)[1] and later, leave by the Single Judge to appeal against sentence (13 August 2015)[2]. That appeal we have heard and allowed with the order as per paragraph 20 of this judgment. These are our reasons.

THE FACTS

2.  In the early hours of 3 October 2013, the police gained entry into premises at 18B Yick Yuen Tsuen, Tuen Mun and found in them the appellant and one other person.  The appellant was holding a handbag, and in the handbag were 26.92 grammes of ICE, all of which was contained in a transparent resealable plastic bag (7 cm x 10.5 cm in size).  On a coffee table nearby were one calculator and 45 transparent resealable plastic bags of a different size (2 cm x 3 cm).  The average retail price for ICE in October 2013 was $677 per gramme.  The street value of all the ICE found in the appellant’s possession was approximately $18,908.

BACKGROUND & MITIGATION

3.  The appellant, who left school at 17, was aged 26 and had no previous conviction.  She started taking ICE in 2010 as a result of frequent conflict with her husband.  After her divorce in 2011, she continued with the habit.  After her divorce, she lived and worked alone and had her young daughter taken care of by the parents of her ex-husband.

THE SENTENCE

4.  The following is what the judge said in passing sentence[3]:

“Now, in considering the proper sentence in this case, this court is greatly assisted by the list of authorities that Mr Beresford had handed up to this court, in particular the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.

In that case, it was said by the court that there is a three‑step approach to assessing the proper sentence in a case of this nature. It is, first of all, to decide the normal starting point, then the court is to consider the latent risk factor, and then the mitigation in a particular case.

Another helpful case, as Mr Lee pointed out, is the case of Mok Cho Tik [2001] 1 HKC 261 where the Court of Appeal said that the starting point for mere possession of dangerous drugs of a bona fide user would normally be in the range of 12 to 18 months, but that was not the be all and end all of the appropriate starting point, the quantity would be the main governing factor which would determine where the starting point would lie.

The Court of Appeal went on in Headnote 2 of the case to say that:

‘The existence of the risk factor and the degree of risk were not a matter of mathematics upon which the court should provide a tariff. Amongst the obvious factors to be taken into account were whether the offender was in employment; whether the drugs were kept in a place to which others had access; whether the offender had convictions for trafficking; and the quantity of drugs.’

The defendant at her arrest was found in premises which she was living in, and she was found sitting on a sofa, and on a coffee table opposite to a sofa were found packets of resealable transparent plastic bags and a calculator. And inside her handbag was a transparent resealable plastic bag containing the drug which is the subject matter of the charge.

The drug’s street value at the time was, approximately, HK$18,908.

Also present at the time with the defendant in the early hours of that morning was another person, but that other person was not charged.

So as can be seen, the latent risk in this case is not negligible.

In the present case, the amount of drugs is 26.92 grammes.

In a case of HKSAR v Chong Heung Sang [2010] HKCU 2450[4] for 25 grammes of heroin, plus the fact that the man was a recidivist and latent risk the court decided that a 30-month starting point was reasonable.

In this case, although the defendant is not a recidivist, in any event, as I have said the latent risk is not negligible.

I have decide, therefore, the starting point in this case is should be one of 2½ years, plus one year to take into account the latent risk factor bringing the starting point to 3½ years.

Taking into account the fact that the defendant had pleaded guilty, she is entitled to one-third off, so that brings the sentence down to 2 years and 4 months.

So the defendant is sentenced to 2 years and 4 months.”

GROUNDS OF APPEAL

5.  Mr Lee, who also acted on behalf of the appellant in the court below, raised three grounds:

(1) The judge erred in adopting 2½years’ imprisonment as the starting point of sentence.

(2) The judge erred in enhancing that sentence by 12 months to take account of the latent risk factor.

(3) In all the circumstances of the case, the total sentence of 2 years and 4 months’ imprisonment was manifestly excessive.

RESPONDENT’S POSITION

6.  Mr Wong, for the respondent, did not oppose the appeal.

DISCUSSION

The starting point

7.  The remarks that the judge made about starting points were obviously based on the following passage in the Mok Cho Tik judgment where, having reviewed a number of past decisions of this Court, Stock JA (as Stock NPJ then was) said this at page 267B–E:

“…. 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.”

8.  Properly understood, what this passage means is that the range of 12 to 18 months’ imprisonment is a range that could be departed from in a downward adjustment for involving minute quantities of dangerous drugs.  It is not a range to be departed from in an upward adjustment unless there is present an aggravating feature, such as the offender is a recidivist.

9.  By stressing that the stated range was not the be all and end all of the appropriate starting point, and that the quantity of drugs was the main factor determining where the starting point would lie, the judge had clearly misunderstood the passage just quoted.

10.  In the result, by adopting 2½ years’ imprisonment as the starting point of sentence for possessing 26.92 grammes of ICE, the judge had rendered the appellant’s sentence out of line with other District and High Court cases.  The defendant being a first offender, there was no justification for so doing.

11.  In seemingly relying on the Cheng Kong Seng case (see footnote 4), the judge had also misapplied it.  As can be seen from paragraph 5 of its judgment, this case is in line with the sentencing approach in Mok Cho Tik.  It does not, however, support the high starting point in our case (also 30 months, or 2½ years) before any enhancement:

“5. This case involves quite a substantial quantity of heroin with a retail value of about $18,000 and it carries with it a clear latent risk factor. Mindful of the fact that the applicant is a persistent offender with no less than seven previous convictions for the same offence, we think a suitable starting point for such a quantity, namely 25 grammes of heroin, is 20 months’ imprisonment, and that another 10 months should be added to reflect the latent risk factor. An overall starting point should be 30 months.”

12.  By adopting that high starting point, and then adding on to it another year for the enhancement, the judge had in effect double-counted the latest risk factor in sentencing the appellant.

13.  In our judgment, a starting point of 18 months would have been appropriate in this case.

The degree of enhancement

14.  It is undisputed that the locus in quo was where the appellant lived and worked as a manicurist.  To the extent that this place of residence was also a place of business, where assorted clients would visit, the latent risk of trafficking must be regarded as real. 

15.  As regards the calculator and the large number of empty plastic bags, to which the judge had obviously attached some importance, it is unfortunate that they were not made the subject of more thorough mitigation.  We say this because it was only on the appeal that Mr Lee submitted that (a) the bags were for conveying artificial fingernails and (b) the calculator was for the appellant’s use in conducting her business.

16.  Those were, we might add, convincing submissions given how various items were laid out on the coffee table, as we have seen in the case photographs.  Amongst those items, very close to the bags and calculator, was a brown treasure box-like container comprising multiple tiny drawers for, it was said, storing artificial fingernails.  

17.  Given that fact, and the fact that no other items suspected of having a connection with the weighing and packing of dangerous drugs were found on the premises, Mr Wong had fairly conceded that the bags and calculator were neutral and did not add onto the latent risk factor.

18.  In all the circumstances, we are of the view that an enhancement of not more than 6 months would have been appropriate.                                              

CONCLUSION

19.  To conclude, the overall starting point of 3½ years’ imprisonment was manifestly excessive.  It should have been set at 24 months, then to be deducted by the customary discount for a guilty plea, thus resulting in a final sentence of 16 months’ imprisonment.

20.  For that reason, we allowed the appellant’s appeal and since she had already served some 15 ½ months in custody, replaced her sentence with one that would allow of her immediate release. 

[1] Chu JA.

[2] Macrae JA.

[3] Appeal Bundle, pages 8G – 9 N.

[4] It is agreed between the parties that the correct citation of this case should be HKSAR v Cheng Kong Sang CACC 371/2008 (28 October 2010, unreported).