HKSAR v. CHOW KAM LUNG

CACC68/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 68 OF 2010

(ON APPEAL FROM DCCC NO. 66 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.  On 24 February 2010, in the District Court before His Honour Judge Yip, the applicant was convicted on his own plea of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The drug in question consisted of 28.45 grammes of a powder containing 22.15 grammes of ketamine.

2.  In sentencing the applicant, the judge took four years and six months as his starting point, reducing it by one-third to take account of the plea of guilty.  The applicant was therefore sentenced to 3 years’ imprisonment.  It is against that sentence that he has sought leave to appeal.

3.  On 17 October 2009, the applicant entered Hong Kong from the Mainland.  He was stopped and searched.  In his shoe, a transparent plastic packet was found containing the drug in question.  Under caution, the applicant admitted that the powder in the plastic packet was ketamine.  He said that he had purchased it in Zuhai for 800 renminbi.  He said that it was for his own consumption and would last him about five days.

4.  At the sentencing hearing, the applicant’s principal ground of mitigation was that, although he had imported the drug into Hong Kong, it was entirely for his own use.  He admitted to being heavily addicted.

5.  While the judge did not directly question the assertion that all of the drug was intended for the applicant’s personal consumption, he expressed surprise at the claim that the drug would only last the applicant about five days.  If that was correct, it meant that the applicant would be consuming over 4 grammes a day.  That, said the judge, was “beyond the biological limit”.  While it was conceded by the applicant’s counsel that the drug may have lasted the applicant somewhat longer than his estimation of five days, counsel did not in any way compromise the contention that the applicant was heavily addicted to ketamine and that the drug was solely for his own consumption.

6.  The applicant, a man in his early 30s, had two previous convictions for possession of dangerous drugs but none for trafficking.

7.  Other than questioning the assertion that the drug found on the applicant would only last him about five days, the judge made no finding of fact as to whether he did or did not accept the applicant’s assertion that he had imported the drug solely for his own consumption.  

8.  S. 2 of the Dangerous Drugs Ordinance defines ‘trafficking’ as including –

“… importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and “traffic in a dangerous drug” (販運危險藥物) shall be construed accordingly. [Our emphasis]

9.  Importing a dangerous drug, therefore, whether it is for the purpose of later dealing in the drug or for personal consumption, constitutes the offence of trafficking.  In this regard, in giving the judgment of the Court of Appeal of England and Wales in R v Brian Meah and Philip John Marlow (1991) 92 Cr App R 254, at 256, Jupp J rejected the contention that importation for personal consumption was to be treated in substance as an offence of mere possession.  He said:

“Importing is a distinct offence from possessing. The penalties are different and in our view it is not right to say that this must be treated simply as a case of possession”.

10.  That being said, the issue of whether a drug is imported for personal consumption, in part or whole, is very much a factor to be taken into account in mitigation of sentence.  Penlington JA, giving the judgment of the court in R v Chan Mung Lung [1992] 2 HKCLR 127 at 130, described it as a strong mitigating factor.

11.  As we have said, at the sentencing hearing the primary mitigation put forward by the applicant’s counsel was to the effect that all of the ketamine was intended for the applicant’s own use.  However, in passing sentence, the judge appears to have overlooked that issue.  He had only this to say:

“Hong Kong has to take stringent measures to clamp down on the flow of dangerous drugs across the border. I take 4½ years as the starting point. I reduce it by 1½ years due to his plea of guilty. The sentence is 3 years.”

12.  The single ground of appeal advanced before us was that the judge failed to take into account the strong mitigating factor that, although the drug had been imported into Hong Kong, it had been imported solely on the applicant’s own use.

13.  Looking to the transcript of proceedings, it is not entirely clear whether the judge was inclined to accept that the ketamine had been imported for the applicant’s sole use or not.  Whichever way, the applicant’s contention that it was entirely for his own use was not so implausible that it could be dismissed without further inquiry.

14.  If the judge was prepared to accept the contention without the need for evidence, it constituted a strong mitigating factor which the judge was obliged to take into account.  This unfortunately he failed to do.

15.  If the judge did not accept the contention at face value, he was obliged to so indicate, giving applicant’s counsel the opportunity to call evidence.  This the judge failed to do.

16.  Following Chan Mung Lung (supra), in the absence of a specific finding on the issue, a sentence must be passed which reflects the factual version most favourable to the applicant, namely, that the full amount of the drug was for his own consumption.

17.  On that basis, we are of the view that the three-year sentence should be reduced by nine months.  This will reflect the strong mitigating factor that the drug was solely for the applicant’s own use while at the same time reflecting the intention of the legislature that importation of a dangerous drug, whatever the purpose, constitutes the offence of trafficking, an offence of greater culpability than simple possession.

18.  Accordingly, the application for leave to appeal is allowed and, treating the application as the appeal, the sentence of three years is reduced to one of two years and three months’ imprisonment.