HKSAR v. YIU CHAN HUNG

CACC462/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 462 OF 2009

(ON APPEAL FROM DCCC 305 OF 2009)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.  The applicant pleaded guilty before Deputy Judge M. Chow to an offence of possessing 2.96 grammes of methamphetamine hydrochloride (“ice”) (Charge 1) and to a separate offence of trafficking in 4.21 grammes of the same drug (Charge 2).

2.  The judge took a starting point of sentence of 9 months’ imprisonment in respect of the 1^st charge; enhanced that to 18 months’ imprisonment due to the latent risk of the drugs falling into other hands and then, giving credit for the applicant’s guilty plea, imposed a sentence of 12 months’ imprisonment.

3.  The 2^nd charge attracted a starting point of 4 years 8 months’ imprisonment which, allowing for the applicant’s plea, was reduced to a sentence of 3 years 1 month’s imprisonment.

4.  Having considered the totality of sentence the judge ordered 6 months of the sentence imposed for the 1^st charged offence to be served concurrently with the sentence imposed for the 2^nd charged offence resulting in a total sentence of 3 years 7 months’ imprisonment.  The applicant now seeks leave to appeal his sentences.

5.  The facts of the case were that the applicant was seen by police leaving a flat in Mong Kok and behaving suspiciously.  He was intercepted and taken back inside the flat.  He was then searched and the drugs the subject of Charge 1 were found in his trouser pocket.  The premises were then searched and in a cabinet in the applicant’s bedroom was found an electronic scale, a plastic bag containing 15 other small plastic bags, another plastic bag containing a small quantity of herbal cannabis (which is irrelevant to this appeal) and a final plastic bag containing the drugs the subject of the 2^nd charge.

6.  Mr Lee advances three grounds.  He firstly asserts that the enhancement of the starting point of sentence in respect of the 1^st charged offence was too great.  Secondly, he says that the judge was wrong to reject the applicant’s contention that half of the drugs the subject of the 2^nd charge were for his own consumption and that a Newton enquiry should have been held to determine this issue.  Finally he argues that the judge erred in not properly considering the totality of sentence.

Ground 1 : The latent risk

7.  The 2.96 grammes of “ice” possessed by the applicant was, while small, not an insignificant quantity and the starting point of sentence of 9 months’ imprisonment was lenient.  It has been accepted for many years that the range for possession of drugs such as “ice” in quantities which are consistent with consumption by a bona fide user is 12 to 18 months’ imprisonment, and the quantity in the present case could have provided several days consumption for a typical addict : see HKSAR v Mok Cho Tik [2001] 1 HKC 261; HKSAR v Chan Yat Sing, CACC777/1997.  The judge no doubt had in mind the comment in Mok Cho Tik to the effect that for very small quantities of drug lesser terms may be imposed : see also HKSAR v Lee Yin Yu, CACC81/2008.  In any event the 9 months starting point although lenient was within the proper exercise of the judge’s discretion.

8.  The real question concerned the latent risk involved in the applicant's possession of the drugs.  The factors the judge took into account in this regard were firstly, that the applicant had left his flat while carrying the drugs; secondly, that he had told the police when he was intercepted that he intended to meet a friend and thirdly, that as he had also told police he was an addict who consumed 1 gramme of “ice” daily, his income from his occupation as a butcher would have been insufficient to sustain his habit, so that there was a “great” risk that he would sell some part of the drugs.

9.  The judge’s conclusion that the cost of the applicant’s drug habit could not be sustained by his income was initially said by Mr Lee to have been based on a flawed calculation.  He accepted however during the course of his submissions before us that the judge’s calculations, so far as they applied to this point, were correct.  It follows that her conclusion that the applicant may have come under financial pressure to dispose of part of the drugs the subject of Charge 1 was also correct, though to categorise the risk as “great”, we think to be going too far.

10.  In our view, on the basis of the factors elucidated by the judge, there was some latent risk of the drugs, or some part of them, being passed on to others.  We might add that is especially so given the applicant’s admission of trafficking in respect of the drugs found inside his premises.

11.  But we accept the concession of Ms Peggy Leung for the respondent that an enhancement of 9 months’ imprisonment was too great.  Such an enhancement of sentence represents an additional sentence equivalent to the original starting point of sentence; in other words it is an enhancement of 100%.  It may be that such a level of enhancement could be justified in certain circumstances particularly where those circumstances involve quantities of drugs towards the upper limits of what might be reasonably accepted as being for a defendant’s personal consumption (as was the case in Chan Yat Sing).  But in the present case the factors pointing to a very high latent risk of the drugs being passed on to others were simply not there.  There was a relatively small quantity of drug, it was not divided into separate packets and the applicant was not in an environment especially conducive to distribution of the drug.

12.  Each case will depend on its own facts but on the factors taken into account by the judge, we think a proper enhancement would have been that of an additional 3 months in the starting point of sentence.  That would have resulted in a starting point of 12 months’ imprisonment.  That reduces to a sentence of 8 months' imprisonment on the basis of the applicant’s plea.

Grounds 2 : Intended part consumption

13.  During the course of mitigation the applicant’s counsel submitted that part of the drugs the subject of Charge 2 were for the applicant’s own consumption.  The judge pointed out that the summary of facts agreed by the applicant had stated that “at the material time the defendant possessed all the aforesaid drugs for the purpose of trafficking” but was apparently prepared to consider the question afresh.

14.  When the judge then mentioned the possibility of a Newton enquiry and expressed concern as to whether there was sufficient in the summary of facts before her to allow a considered determination as to whether a significant part of the drug was intended for self consumption, the applicant’s counsel referred her to HKSAR v Wong Suet Han (2002) 1 HKLRD 69 at p.79 which listed factors to be taken into account in determining a defendant’s contention that part of the drugs were for self consumption, and where this court commented that “…usually a court will be able to determine the issue from these factors without a Newton enquiry”.  The judge then allowed counsel to proceed with mitigation and to argue the point of self-consumption on the basis of the circumstances set out in the agreed summary of facts. 

15.  The complaint now made before us that the judge should have held a Newton enquiry does not sit well with the position taken by counsel at trial.  Mr Lee initially explained the contradiction in his position by suggesting that the judge had made the error in her calculations which we have referred to above in paragraphs 10 and 11.  He had argued that by wrongly finding that the applicant’s drug habit could not have been sustained by his income, the judge had thereby concluded in error that the applicant had a greater need than otherwise to sell the drugs rather than consume any significant part of them.  He suggests that error would not have occurred had there been a Newton enquiry. 

16.  Mr Lee in eventually accepting the judge had not erred in her calculation had little remaining support for his submission that a Newton enquiry should have taken place.  The facts were straightforward.  The circumstances in which the drugs were found were not unusual and there was no other special assertion of fact or matter which the applicant's counsel sought to argue which required a hearing.  Counsel simply advanced the simple proposition that the drugs were partly for the applicant’s own consumption.  The judge was right not to hold a Newton enquiry.

17.  We might add that we do not see from the facts of the case that there was anything material to support counsel's assertion that the drugs found in the premises were “half for the applicant's own consumption”.  The presence of the scale and a significant number of plastic bags suggest something other than consumption, even given the relatively small quantity of drugs involved.

18.  It may be that the applicant intended to consume a small part of the whole from time to time but the evidence pointed to the intention that the main part of the drugs be trafficked.

19.  This ground must fail.

Ground 3 : Totality

20.  Mr Lee's complaint, reduced to its essentials, is that the sentence imposed in respect of the 1^st charged offence was so excessively high that the total sentence imposed fell just short of what would have been imposed had the applicant been sentenced for trafficking in all of the drugs the subject of both the charges.

21.  There is some merit in this argument but in any event this ground falls away given our conclusions in respect of the first ground and the necessity to re-sentence the applicant in that regard.

22.  As we have indicated, a proper sentence in respect of the 1^st charged offence was one of 8 months' imprisonment.  The appropriate totality of sentence we think to be achieved by ordering 4 months of that sentence to be served concurrently to the sentence imposed in respect of the 2^nd charge.  That is a total sentence of 3 years 5 months’ imprisonment.

23.  To achieve that we allow the application, treat the application as the appeal, and allow the appeal to the extent that the applicant's sentence on the 1^st charge be reduced to 8 months’ imprisonment, 4 months of which is to be served concurrently to the sentence of 3 years 1 month's imprisonment imposed in respect of the 2^nd charged offence.  That is a totality of sentence of 3 years 5 months' imprisonment.