HKSAR v. WONG WAI WAH

CACC 181/2017

[2018] HKCA 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2017

(ON APPEAL FROM DCCC NO 854 OF 2016)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The appellant stood trial before Deputy District Judge Wong Sze Lai, Lily (the judge) on a charge of trafficking in a dangerous drug, namely 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride, commonly known as Ice, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the Ordinance). He pleaded not guilty to the charge, but indicated that he would plead guilty to possession of the drugs, contrary to section 8(1)(a) and (2) of the Ordinance. This plea was not accepted by the prosecution and the case proceeded to trial. At the conclusion of the trial, the judge acquitted the appellant of the trafficking offence but convicted him of the possession offence. The judge sentenced him to 18 months’ imprisonment.

2.  The appellant applied for leave to appeal against his sentence which was granted by McWalters JA on 25 April 2018[1].  He concluded that it was reasonably arguable that the judge’s assessment of the latent risk and the level of enhancement to the sentence to reflect such risk may have been affected by her taking into account an erroneous understanding of the length of time that the applicant was in possession of the drugs out in public.

3.  The judge arrived at the sentence she imposed on the appellant by first adopting a starting point of 18 months’ imprisonment which she enhanced by 9 months for the latent risk to 27 months’ imprisonment. She next discounted the sentence by one third to 18 months’ imprisonment to reflect the appellant’s indication of guilt for possession of the drugs at the outset of the trial. 

4.  The issue engaged before this court, as encapsulated by the grounds of appeal filed by Mr James Tze, for the appellant, is whether in the circumstances of the case there was a latent risk, and if so, whether the enhancement of 9 months to the appellant’s sentence imposed by the judge for such risk was correct. 

Determining the latent risk

5.  When sentencing cases of simple possession of a dangerous drug, two factors are of particular importance: the quantity of dangerous drug involved and the risk that the dangerous drug will get into the hands of others by access or distribution.  The latter matter is described as the latent risk. 

6.  There was a challenge to the validity of the latent risk factor as a sentencing consideration which was rejected by the Court of Final Appeal in HKSAR v Minney (2013) 16 HKCFAR 26.  The challenge was based on concern that a defendant convicted of possession of a dangerous drug should not be sentenced for a crime that he or she had not committed of trafficking in a dangerous drug.  Tang PJ, with whom the other judges agreed, cited with approval the following observations of Fok JA (as he then was), who gave the judgment of the Court of Appeal below: 

“15. …

[28] … there can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s.  That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but simply reflects the fact that the quantity and circumstances of their possession are such as to pose a risk to society.”

7.  In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, this Court held that the following three step approach should be adopted when determining an appropriate sentence for an offender who was a bona fide user and convicted of simple possession of a dangerous drug (heroin or Ice):

“Step 1: The judge should normally determine a starting point of between one year to 18 months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offenders. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

8.  As to Step 1, the following comments of Stock JA (as he then was) in HKSAR v Mok Cho Tik [2001] 1 HKC 261, at 267B-D, are apposite:

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. 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.”

9.  The significance of Stock JA’s remarks is the importance that the circumstances of a particular case will have on the starting point adopted for sentence and the degree of enhancement to the sentence, if any, for the latent risk.  It is the circumstances of the offence and the offender that lead a sentencing court to come to the view that a sentence of imprisonment is deemed necessary because rehabilitative measures, such as detention at a drug addiction treatment centre, or detention or training centre, are not considered appropriate. 

10.  It must not be overlooked that it is a mandatory requirement under section 54A of the Ordinance that, subject to certain exceptions, where a defendant is to be sentenced after conviction for an offence of possession of a dangerous drug, contrary to section 8, or possession of apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug, contrary to section 36, no sentence, other than a non-custodial sentence, should be imposed, unless the court has considered a report of the Commissioner for Correctional Services as to the defendant’s suitability for cure and rehabilitation in an addiction treatment centre.  The exceptions are where the defendant is either convicted in the same proceedings of any other offence and is sentenced for that other offence to imprisonment for more than 9 months, or is at the time of conviction serving a term of imprisonment of more than 9 months.  A non-custodial sentence under this section includes a fine, a probation order or a suspended sentence of imprisonment.  Attorney General v Chan Ching Ho [1994] 2 HKC 457; Attorney General v Chan Tak King [1989] 2 HKLR 428; and HKSAR v Yan Suk Yin [2004] 1 HKLRD 677.

11.  Even when a sentencing court deems it necessary to impose a sentence of imprisonment, the starting point in the range of 12 to 18 months is not a template that is applied to all cases involving a bona fide drug user convicted of simple possession of drugs.  Whilst it is the range that is normally applied to cases in the District and High Court, most likely because of the quantity of drugs involved, lesser terms may be applied in the Magistrate’s Court depending upon the circumstances of the case, most notably because the quantity of drugs is very small.  As noted by Stock JA, the quantity of drugs would be a main governing factor which would determine where the starting point would lie, but there may be aggravating factors warranting an enhancement of the starting point, such as the offender being a recidivist. 

12.  As to Step 2, Tang PJ in Minney explained how a sentencing court should assess the latent risk as follows:

“16. … The assessment of the risk of dissemination depends on the drawing of the correct inference from the circumstances of the possession as established on the evidence. Before any such inference is drawn, the sentencing court must be sure that in all the circumstances of the particular case, the risk of dissemination is real. The sentencing judge is best placed to decide whether there is such a real risk. Often times, it is just a matter of common sense.”

13.  As to what factors are relevant to whether such an inference can be drawn was discussed by Stock JA in Mok Cho Tik at 267D-E:

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

14.  After review of the authorities, McWalters JA in HKSAR v Lee Chun Man, CACC 360/2014, 5 May 2015, unreported, explained that the starting point for a consideration of this issue must be to firstly ask the question whether the circumstantial evidence allows of an inference that there was a real risk of dissemination of the drugs, and if answered in the affirmative, the next question is by how much should the initial starting point be enhanced.  On the question of enhancement, he said:

“19. The amount of the enhancement will depend on the degree of the latent risk. The higher the level of risk the greater the amount of enhancement. It will, therefore, be necessary for the sentencing judge to assess the degree of risk for it is the judge’s assessment of the degree of risk that will guide him in his determination of the amount of enhancement. The cases would suggest that the enhancements made by the courts range from 6 months for a low degree risk to 18 months or more for a very high degree of risk.”

The relevant facts

15.  At trial, the evidence was mainly agreed and included the out-of-court statements of the appellant.  The appellant did not give or call any evidence.

16.  It was an admitted fact that at 9:04 in the morning on 11 April 2016, the appellant was arrested by a police officer outside the ground floor of 131 Fa Yuen Street in Mongkok.  He was searched by the police officer who found inside his trouser pocket a single packet of Ice. The quantity of narcotic content of the Ice was 12.5 grammes which had an estimated value of $3,848 when calculated from purchases of 5 grammes or less, as contained in relevant police statistics.

17.  It was also an admitted fact that in response to being cautioned for possession of the Ice, the appellant claimed that it was for his own consumption.  In subsequent video recorded interviews, the appellant claimed that he had purchased the Ice from a casual friend in Mongkok that morning for $1,200 and that he had been a drug addict for 2 years, taking Ice 3 to 4 times a day.  He said that he needed the Ice to reduce stress and refresh himself.  He explained that he purchased such a large quantity of Ice because it was cheaper to do so and that it would last him for more than half a month.  He claimed he worked as a renovation worker earning around $20,000 a month and that he spent around $2,000 a month on Ice. 

The mitigation

18.  Following the conviction of the appellant for possession of the Ice, Mr David Boyton, counsel for the appellant, addressed the judge on sentencing.  He rightly requested that a Drug Addiction Treatment Centre (DATC) suitability report be obtained, which the judge ordered.  The report did not find that the appellant was drug dependent and therefore recommended that he was not suitable for admission to a drug addiction treatment centre.  It was noted in the report that the appellant began consuming cannabis since 1988 and later Ice since 1992 and would consume these drugs two or three times a week.  No issue was taken by the appellant as to the contents and finding of the report. 

19.  Mr Boyton referred the judge to the case of Mok Cho Tik where this Court adopted a starting point of 18 months’ imprisonment on the applicant for simple possession of 15.724 grammes of Ice which had been enhanced by 12 months to reflect the latent risk factor.  The court noted that the latent risk was not based on commercial supply but rather on social consumption by others visiting the premises of the applicant for that purpose, which it considered was high. 

20.  In submissions to the judge, Mr Boyton accepted that for the quantity of Ice in the present case a starting point of 18 months’ imprisonment was appropriate, in recognition that a similar quantity was involved in the case of Mok Cho Tik where a starting point of 18 months’ imprisonment was adopted, and that the sentence should be enhanced because of the latent risk.

The sentencing of the appellant

21.  In her comprehensive reasons for sentence, the judge set out the facts and circumstances of the offence and the background and particulars of the appellant.  She noted his previous criminal convictions which were numerous and included six drug offences.  She noted that after his arrest for the present offence he was put on bail and he claimed he stopped abusing Ice although he continued consuming cannabis.  He was later remanded in custody in relation to other offences when he was considered not to be drug dependent in the DATC report.  She noted that he had stated in his video recorded interview that he was a renovation worker and it was not in dispute that he was found in possession of the Ice in the street and not in his residence.  She was satisfied that the appropriate starting point for the quantity of Ice possessed by the appellant was 18 months’ imprisonment. 

22.  The judge then turned to consider the issue of the latent risk and after referring to Mok Cho Tik she concluded:

“22. Taking into account that the defendant was stopped in the street at 9 pm on 11 April and that he told the police in the VRI that he bought the ‘ice’ in the morning, the quantity involved was not small and which, as the defendant claimed, could sustain for his consumption for more than half a month, and he has 5 previous convictions for possession of a dangerous drug and a conviction for trafficking in a dangerous drug, there was, in my view, a risk that the ‘ice’ could have fallen into other hands.

23.  In the circumstances, I increased the starting point by 9 months to 27 months’ imprisonment.”

23.  As is apparent from the quoted remarks of the judge, she clearly made an incorrect factual finding that the appellant had purchased the drugs in the morning and was apprehended with the drugs in his possession later in the evening in the street.  This was obviously considered relevant by the judge on the issue as to whether there was a risk that the drugs would fall into the hands of others.  However, she also took into account the quantity of the drugs and the appellant’s previous convictions for drug offences.

24.  After pronouncing sentence, the judge addressed the disposal of the court exhibits.  It was then that Mr Boyton raised with her that she had twice made references to the appellant being arrested at 9 pm when it was at 9 am.  He informed her that it did not make any difference and she appeared to agree.

25.  We note that at the time of sentence, the appellant was 47 years old. He claimed that he was a renovation worker and resided with his wife and daughter but this was at variance with what he had stated in the DATC report.  He had 27 court appearances with 49 previous convictions dating back to 1988.  He had 5 convictions for possession of a dangerous drug in 1989, 1999, 2004, 2005 and 2012, and one conviction for trafficking in a dangerous drug in 2006.  His conviction for trafficking was in the High Court and he received a sentence of 4 years and 8 months’ imprisonment.  The rest of his convictions are mainly for offences involving dishonesty, violence or serious traffic violations.  We note in particular that since 2011 the appellant has had a string of convictions for serious traffic offences, which included offences of dangerous driving, where he was initially convicted of driving without a licence and subsequently on numerous occasions of driving whilst disqualified.  It reveals that the appellant has a complete disregard for the law and for court orders.

26.  Prior to this offence, on 11 September 2015, the appellant had been sentenced to a total term of 14 months’ imprisonment for very serious traffic offences.  He was released from custody in relation to this sentence on 6 February 2016.  This meant that he had only been released from custody for a period of 2 months when he committed the present offence on 11 April 2016.

The appellant’s submissions

27.  Mr Tze, for the appellant, submits that even though the defence counsel at trial agreed that there was a latent risk, the judge had a duty to consider whether there was such a latent risk on the specific facts of the case.  He argues that the judge wrongly took into account that the appellant was stopped on the street at night, that is at 9 pm, and therefore would have considered him to have had the drugs on him for most of the day, as the appellant stated that he purchased them in the morning.

28.  He submits that the following factors point to the conclusion that there was no latent risk.

(a)  The appellant’s criminal record and the contents of his DATC report show that he had been a drug addict for more than 10 years.

(b)  There was no evidence to contradict the appellant’s claim about his employment and income which would have enabled him to fund his drug habit.

(c)  The appellant was not found to be in possession of a large sum of money, and the drugs were contained in a single plastic bag, rather than in multiple packets, nor were any other items recovered from his residence for the potential distribution of the drugs, such as a scale or packaging equipment.

(d)  The appellant’s immediate reply to the police was that the drugs were for his self-consumption.

29.  He further submits that the enhancement of 9 months amounted to a 50% increase on the starting point which was manifestly excessive.

The respondent’s submissions

30.  Ms Chan Sze-yan, for the respondent, acknowledges that the judge made a factual mistake regarding the time of the appellant’s arrest, but nevertheless submits that given the quantity of drugs involved and the appellant’s criminal record, there was a risk that the drugs might fall into hands of others, and the judge was right to conclude that there was a latent risk. 

31.  She contends that the following factors put the latent risk in the present case at the medium level and therefore the enhancement of 9 months to the appellant’s sentence imposed by the judge was correct.

(a)  The quantity of drugs, namely 12.5 grammes of Ice, was a relatively large quantity.  According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, at paragraph 27, the average daily consumption of a regular user of Ice was in the range of 0.1 to 0.5 grammes and therefore the quantity in question would be enough for at least 25 days.  The appellant claimed that the Ice would be enough for more than half a month.

(b)  The appellant’s employment history would not have allowed him to afford his drug habit.  It was noted that he claimed in the video recorded interview in April 2016 that he was a renovation worker, earning about $20,000 a month and spending about $2000 a month on drugs.  However, in the DATC report in May 2017, he said that prior to being on remand he was a salesperson, earning about $18,000 a month.  He also admitted that he did not have stable employment and would often be idle.  It was further noted that the appellant had just been released from prison two months prior to being arrested for the present offence, after serving a sentence of imprisonment of 14 months. 

(c)  There was a risk that the appellant may share his drugs with work colleagues as he said in his video recorded interview that he took Ice 3 to 4 times a day when at work. 

(d)  The appellant’s lengthy criminal record included a conviction for trafficking in a dangerous drug in 2006. 

Reassessing the latent risk

32.  As already acknowledged, the judge wrongly took into account, as a relevant factor in determining the issue of the latent risk, that the appellant had been in possession of the drugs all day when he was arrested with the drugs on him in the street. 

33.  In light of this error by the judge, it will necessitate us determining whether there was a latent risk, and if there was, the degree of such risk. 

34.  In addressing this issue, it is worthwhile to bear in mind the observation by McWalters JA in Lee Chun Man at paragraph 17: “It is notorious that drug abusers may resort to selling drugs in order to fund their addiction or, in a social setting, share their drugs with others.” 

35.  The factors that we consider relevant in our assessment of the latent risk in the present case are as follows. 

(a)  The quantity of the drugs, namely 12.5 grammes of Ice, although not particularly large, would sustain a regular user for at least 25 days. 

(b)  The uncertainty of the appellant’s employment history and his lack of stable employment.  He claimed in his video recorded interview in April 2016 that he was a renovation worker and later in the DATC report in May 2017 that prior to his remand in December 2016 he was a salesperson.  He had been released from prison about 2 months prior to committing the present offence after serving a prison sentence of 14 months.  According to the appellant, he had purchased the drugs for $1,200, which had an estimated street value of $3,848, and had no other funds at the time of his arrest.  There was a risk that he would sell off some of the drugs to continue to feed his habit.

(c)  The appellant’s drug addiction, as evidenced by his history of abusing cannabis and Ice and 5 previous convictions for possession of a dangerous drug, although, he was not considered a drug dependent at the time of the DATC report.

(d)  The appellant’s drug consumption habits, which he said involved him consuming Ice 3 to 4 times a day at his place of work. 

(e)  The appellant’s prior conviction for trafficking in a dangerous drug in 2006.

(f)  The appellant’s appalling criminal record which reveals that he is a person who flouts the law and displays little or no concern about the consequences of his actions, particularly to others.

36.  It should be noted that we accept that on the evidence the appellant is an abuser of Ice and that the quantity of Ice was in a single packet and no items or equipment for packaging or distributing the Ice were found at his residence.  Although, we point out that neither were items or equipment normally used for the consumption of Ice found at his residence.  

37.  The question for us is whether in all the circumstances there was a real risk of dissemination of the drugs, and if there was, the degree of such risk.  As Tang PJ pointedly remarked in Minney, this is often a matter of common sense.

38.  Taking all factors mentioned into account we are satisfied that in all the circumstances of the case there was a real risk of dissemination of the drugs in question and the degree of risk should be assessed as medium with an appropriate enhancement of 9 months to the appellant’s sentence.

Conclusion

39.  It follows from what we have said that we would have imposed the same sentence as the judge, adopting the same starting point as the judge of which no complaint is made, but upon a reassessment of the issue of the latent risk and based on factors that we are satisfied are relevant.  We therefore dismiss the appeal.