SECRETARY FOR JUSTICE v. CHAN SUET PING

[English Translation – 英譯本]

CAAR1/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2016

(ON REVIEW FROM DCCC NO. 480, 497 & 548 OF 2015)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Background facts

1.  On 28 March 2015, police officers searched a residence at (10/F) No. 70 Bedford Road, Tai Kok Tsui (the residence). At the time, a female surnamed Kam (transliteration) walked out of a room of the residence holding a plastic bottle in which there was inserted a straw containing traces of “Ice”, and the respondent (Chan Suet Ping) followed her out. The police officers found from a wooden cabinet a small plastic bucket in which there was a packet of 6.42 grammes of mixture containing 6.33 grammes of “Ice”, over 100 plastic bags in small and large sizes, lighters and two nunchuks.

2.  Under caution, the respondent admitted that the “Ice” was bought by him for his and his girlfriend Kam’s consumption. The respondent said he did not traffic in dangerous drugs, and the two nunchuks were for practice and for self-defence when necessary.

3.  By reason of the above incident, the respondent was charged with one count of trafficking in a dangerous drug and one count of possession of prohibited weapons. The respondent pleaded not guilty to the charges and was tried before District Judge J. Lam (the trial judge).

4.  On 22 January 2016, the trial judge convicted the respondent of the two charges. On 11 February 2016, the respondent was sentenced to detention in the Drug Addiction Treatment Centre (“the said sentence”) and a fine of HK$3,000.

5.  The Secretary for Justice (“the applicant”) considered that “the said sentence” was too lenient and that it was one that a judge, having applied his mind to all the relevant factors, would not reasonably consider it to be within the appropriate range of sentences (see the test for review of sentence set out by Lord Lane in AG’s reference No 4 of 1989 (1989) 11 Cr App R (S) 517, p 521). Therefore, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong, an application was made to this Court to review “the said sentence”.

6.  On 2 March 2016, the Chief Judge of the High Court granted the applicant’s application for reviewing “the said sentence”. Hence, this Court would formally consider the application for review. After hearing, this Court granted the application, quashed the sentence, and, in its place, imposed a sentence of 3 years and 6 months’ imprisonment calculated from 27 February 2017. Below are this Court’s reasons for judgment.

The respondent’s background and mitigation

7.  The respondent was 30 years old with 6 criminal convictions, of which 3 were possession of dangerous drugs and the rest involved criminal damage and commission of acts of violence.

8.  The respondent’s father had passed away. He lived with his mother and his niece. He was a decoration worker earning a monthly income of over $10,000. He claimed that half of his income would be used for household expenses. He emphasized that he had had no previous convictions for “trafficking in dangerous drugs”.

9.  In mitigation, Ms Vivian Wong, counsel for the respondent, contended that the sentencing guidelines for “trafficking in dangerous drugs” were not some sort of straitjacket, and the court could impose a just sentence which was not too lenient. Ms Wong asked the court to impose a non-custodial sentence. To support her contention, Ms Wong cited the remarks at paragraph 99 of the judgment in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 which are reproduced below:

“In the unlikely event that a habitual abuser of ketamine or ecstasy or both, with no previous convictions for trafficking in dangerous drugs, is caught in the act of supplying a close acquaintance such as a boyfriend or girlfriend who is also a regular consumer of drugs, we can envisage that this might well give rise to circumstances where a non-custodial sentence would be justified.”

10.  Ms Wong emphasized that the respondent himself was a “drug addict”. The “Ice” he bought was intended for his own consumption and for sharing with his girlfriend. Ms Wong was of the view that the court could impose an exceptional sentence, and would not have to strictly adhere to the relevant sentencing guidelines to impose a sentence of immediate imprisonment.

The trial judge’s reasons for sentence

11.  It is apparent that the trial judge accepted Ms Wong’s submissions. The trial judge acknowledged that there were authorities for imposing a severe punishment on those who supplied dangerous drugs to their friends at will even with no profit-making purpose, and such punishment did not differ from the sentences imposed on the traffickers in general,though the court could adopt the lower end of the sentencing scale (See HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69 at 85, lines A to C).

12.  The trial judge pointed out that for trafficking in less than 10 grammes of “Ice”, the sentencing tariff, following AG v Ching Kwok Hung [1991] 2 HKLR 125, ranged from 3 to 7 years’ imprisonment. The present case involved trafficking in about 6 grammes of “Ice” and was social “trafficking”, and the appropriate starting point was 3 years’ imprisonment. However, the trial judge emphasized that the respondent was in possession of the “Ice” in question for self-consumption and for sharing with his intimate girlfriend, so that it was a special type of social “trafficking”. The trial judge pointed out that the female Kam would stay overnight in the respondent’s bedroom, and that the respondent had no previous convictions for “trafficking”.

13.  The trial judge emphasized that the remarks at paragraph 99 of the judgment in Hii Siew Cheng were made after Wong Suet Hau, and therefore it was also applicable to the types of drugs trafficked other than “ketamine” and “ecstasy”. The trial judge has taken account of the Drug Addiction Treatment Centre Report which confirmed the respondent to be a “drug addict” and decided to deal with him leniently, not following the sentencing guidelines. The respondent was sentenced to be detained at the Drug Addiction Treatment Centre.

The applicant’s arguments for application for review

14.  Mr Franco Kuan, Acting Senior Assistant Director of Public Prosecutions, on behalf of the applicant emphasized that the principles established in Wong Suet Hau had been generally applied in various cases, including Hii Siew Cheng that the trial judge cited. Mr Kuan suggested that paragraph 98 of the judgment of that case was in clear agreement with Wong Suet Hau and repeated the following paragraph:

“In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not in itself provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs is as dangerous to the community as the commercial supplier of small quantities who will generally traffic in drugs with those already addicted.”

15.  Mr Kuan was of the view that the Court of Appeal’s remarks at paragraph 99 in Hii Siew Cheng were not applicable to the present case where the drug involved was “Ice”, rather than ketamine or ecstasy. Mr Kuan emphasized that the “Ice” involved in the present case was of substantial quantity. He reiterated the gravity of drug trafficking offences. He submitted that deterrent sentences ought to be passed in drug trafficking cases; otherwise it would be regarded as encouraging the commission of this type of offences, and this is not in the public interest. Mr Kuan, referring to Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853, submitted that deterrence of other potential offenders must take precedence over the rehabilitation of the particular defendant in drug trafficking cases.

The respondent’s position

16.  Mr Mak Kin Ming, counsel for the respondent, fully adopted the written submissions of his predecessor, Mr Yuen Siu Kei. Mr Mak submitted that Ching Kwok Hung laid down the sentencing tariff for trafficking in less than 10 grammes of “Ice” as 3 to 7 years’ imprisonment. However, in view of the exceptional circumstances of the present case, the trial judge took the view that even based on the sentencing guideline set down in Ching Kwok Hung, it would have been correct to adopt the low end of the sentencing tariff, namely 3 years’ imprisonment.

17.  Mr Mak submitted that the exceptional circumstances of the present case made it different in nature from the cases cited by the applicant. Mr Mak emphasized that the present case involved neither commercial “trafficking” acts, nor “supplying drugs to friends when needed at times”; but “truly and honestly supplying small quantities of drugs to friends”. Mr Mak submitted that as there was no commercial motive in such act, it would not pose a serious danger to the community, and that a lenient sentence should be imposed.

18.  Mr Mak argued that “supplying drugs to one’s intimate girlfriend who was also a drug addict was very rare”. He regarded the above situation as the unlikely event stated in Hii Siew Cheng, and therefore it formed the basis of not imposing a custodial sentence.

19.  Mr Mak agreed that “the said sentence” was a lenient one, but submitted that the Court of Appeal should not interfere with it, for the reason that the trial judge should have the discretion to impose an appropriate sentence. Mr Mak emphasized that when imposing “the said sentence”, the trial judge had taken all the relevant factors into consideration and made it clear that he had decided to deal with the respondent in a lenient manner.

20.    Mr Mak stressed that the trial judge did exercise great care to locate the crux of the case. He did not apply the sentencing guidelines blindly.  He fearlessly referred to the narrow and special circumstances indicated in the authorities and imposed a Drug Addiction Treatment Centre order on the respondent, so as to address to the root of his problem.

21.  Mr Mak submitted that the trial judge’s dealing with the respondent in a lenient manner was correct and should be encouraged. Hence, even if “the said sentence” was considered to be manifestly inadequate, this Court should not disturb it.

Discussion

22.  We do not agree with Mr Mak’s submissions that even where “the said sentence” was manifestly inadequate, it ought not to be disturbed.  Sentencing principles that apply in other cases are not necessarily applicable to the sentencing of drug trafficking offences. This Court has repeatedly emphasized that drug trafficking is an extremely evil offence which must be dealt with by imposing a firm and deterrent sentence, so as to prevent criminals from trying their luck by taking the risk of committing the crime. For the above reasons, the Court of Appeal has adopted firm sentencing guidelines on “drug trafficking” offences, which must be followed in normal circumstances; otherwise the effect of the sentencing guidelines would be undermined and inconsistency in sentencing for “drug trafficking” offences would be the result. The sentencing tariff, according to Ching Kwok Hung, for unlawful trafficking in less than 10 grammes of “Ice” should be 3 to 7 years’ imprisonment. The present case involved 6.33 grammes of “Ice”, so that if one deals with the case purely from a mathematical point of view, the applicable starting point should be one of about 5 years’ imprisonment.

23.  The trial judge convicted the respondent of the charge of “trafficking” on the basis of his claim under caution that the “drugs” in question were intended for sharing with his girlfriend. At the trial, after the respondent failed in his objection to the production of the cautioned statement, he did not give evidence in support of the contention. Given the background of the present case and having considered the quantity of the “drugs” in question which were over 6 grammes, and the fact that the respondent at the same time was in possession of a large quantity of plastic bags and other paraphernalia for dealing with drugs, it was very much to the benefit of the respondent for the trial judge to have dealt with him by accepting his version in the cautioned statement as the basis for sentencing.

24.  Even if the respondent’s case were accepted, the nature of his offence would still be social “trafficking”, where a drug addict supplies drugs to one’s friend who is a drug addict. However, this Court at the same time should point out that since there were involved in this case more than 6 grammes of “Ice”, such a quantity of “Ice” would have been sufficient for a number of people to consume for multiple times.

25.  In the case of Wong Suet Hau, the Court of Appeal made it clear that the sentence imposed for social “trafficking” should not be lighter than that for commercial “trafficking” in general. The reasons were detailed in the judgment of the case. The approach in Wong Suet Hau was adopted by the Court of Appeal in a number of cases of the same kind (see cases like HKSAR v Wong Sze Tung [2015] 4 HKLRD 836 and HKSAR v Holguin Sanchez Diana Milena CACC 439/2014).

26.  The case of Hii Siew Cheng, on which Mr Wong, counsel for the respondent at the trial and the trial judge relied heavily, did not deviate from the above established principle. In fact, the Court of Appeal in its judgment also repeated the terms in the case of Wong Suet Hau as regards the approach the court should adopt when sentencing on social “trafficking”. It shows the Court of Appeal did confirm the approach.

27.  Thereafter, the Court of Appeal set out the rare circumstances: Where a drug addict with no previous conviction for trafficking was caught when he was suppling ketamine or ecstasy to one’s close friend, such as a boyfriend or girlfriend who was also a regular user of drugs, the court may impose a non-custodial sentence.

28.  This Court must first point out that what was said above is merely an obiter dictum, rather than a ratio decidendi, of the Court of Appeal, and therefore it is not binding.

29.  Furthermore, if the circumstances described by the Court of Appeal were that of a drug addict purchasing a substantial amount of drugs for sharing with friends, the Court of Appeal would not describe such circumstances as rare. As a matter of fact, it is extremely common that a drug addict purchases a substantial amount of drugs for sharing with friends. The rare circumstances referred to by the Court of Appeal were highly likely to be limited to the circumstances where a drug addict, when taking drugs, shared a small amount of drugs with his close friend who was also a drug addict, for example, a drug addict allowed his friend to have a taste of the drugs he was taking. In the above circumstances, as the drug addict did supply drugs to his friend, he has technically committed the offence of “trafficking”, despite that he only allowed his friend to have a taste of the drugs he was taking. Under such circumstances, imposing a non-custodial sentence could be regarded as reasonable and correct.

30.  The present case is definitely not the rare circumstances considered above. The respondent was in possession of a substantial amount of “Ice” (6.33 grammes) and admitted that the “Ice” was for self-consumption and was supplied for consumption by his girlfriend who was a drug addict. The respondent’s act did perpetuate his girlfriend’s “abuse of drugs”, causing a danger to the community.

31.  Even if the respondent were convicted of a charge of possession of a dangerous drug instead of trafficking in a dangerous drug, given the quantity of the “Ice” and the risk that such a quantity of drug may find its way into the hands of others, it would have been highly likely for the respondent to be sentenced to immediate imprisonment of a term close to two years. This analysis further shows that sentencing the respondent to the Drug Addiction Treatment Centre is untenable.

32.  We agree with the stance of Mr Kuan, Ag. SADPP. In our view, the sentencing of the respondent should be dealt with based on the sentencing guidelines set down in Ching Kwok Hung. We are of the view that, according to the background of the case and the quantity of the drugs, the appropriate starting point is 5 years’ imprisonment.

33.  Having considered that the present case is an application for review of sentence, and that the respondent has served a sentence equivalent to a term of one year at the Drug Addiction Treatment Centre, we are of the view that the appropriate sentence is one of 3 years and 6 months’ imprisonment.

34.  Accordingly, we grant the application of the Secretary for Justice, quash the original Drug Addiction Treatment Centre order, and in its place, impose a sentence of 3 years and 6 months’ imprisonment for the “trafficking” charge, commencing on 27 February 2017.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.