HKSAR v. NG YU TIN

CACC 136/2020

[2021] HKCA 1333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 136 OF 2020

(ON APPEAL FROM HCCC NO 112 OF 2020)

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J U D G M E N T

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1.  The applicant pleaded guilty on 1 June 2020 in the Eastern Magistrates’ Courts to one count of trafficking in dangerous drugs^[1] and one count of keeping a divan^[2]. He was committed to the Court of First Instance for sentence, where he was sentenced by Deputy Judge Anna Lai SC (“the judge”) to a total of 5 years and 7 months’ imprisonment. He now seeks leave to appeal against his sentence.

2.  Count 1 averred that, between 24 and 25 April 2019 (both dates inclusive), at an address in Hong Wah House, Nos 32-38 Hong Ning Road, Kwun Tong, Kowloon (“the premises”), the applicant unlawfully trafficked in dangerous drugs, namely, 10.97 grammes of a crystalline solid containing 10.75 grammes of methamphetamine hydrochloride, 0.01 gramme of a solid containing heroin, 0.01 gramme of a powder containing heroin, 1.43 grammes of a mixture containing 1.18 grammes of heroin hydrochloride, 104 millilitres of a liquid which contained 0.23 gramme of a solid upon drying, containing 0.17 gramme of methamphetamine, and 312 millilitres of a liquid which contained 0.24 gramme of a solid upon drying, containing methamphetamine.

3.  Count 2 alleged that on the above dates at the same location, the applicant kept a divan where dangerous drugs, namely methamphetamine hydrochloride, methamphetamine, heroin hydrochloride and heroin were sold in order to be smoked, inhaled, ingested and injected therein.

Summary of Facts

4.  At about 6:25 pm on 25 April 2019, when the applicant was opening the door to the premises in order to let a male enter, the police entered the premises with a search warrant.  CCTV cameras had been installed in the premises and showed live images of the staircase and entrance outside, which could be viewed at an L-shaped counter near the entrance inside. When the police entered the premises, the applicant was near the L-shaped counter.  He identified himself to be the person responsible for the premises.

5.  Upon a search of the premises, the police found the following items on top of the L-shaped counter:

(i)     1 tinfoil packet and 1 paper packet respectively containing 0.01 gramme of a solid and 0.01 gramme of a powder, each containing heroin (collectively “E1”);

(ii)    1 waist bag containing 28 plastic bags containing a total of 9.75 grammes of a crystalline solid containing 9.54 grammes of methamphetamine hydrochloride (“E2”) and HK$4,685.70 cash;

(iii)   2 tin boxes containing a total of 8 packets (consisting of plastic wrappings) containing a total of 1.43 grammes of a mixture containing 1.18 grammes of heroin hydrochloride (“E3”);

(iv)   8 plastic bags containing a total of 1.22 grammes of a crystalline solid containing 1.21 grammes of methamphetamine hydrochloride (“E4”);

(v)    23 straws, a stack of unused Mark Six tickets, a calculator, a notebook with dates, nicknames and amounts of money in numbers written thereon, a pen, 1 mobile telephone with an SIM card, a lighter, a CCTV display screen and an external hard disc.

6.  There were 13 other persons present in the premises. The police also found the following items:

(i)     On a table on the left side of the premises: 1 inhaling device containing 104 ml of a liquid, which contained 0.23 gramme of a solid upon drying, containing 0.17 gramme of methamphetamine (“E8”);

(ii)    On a round table on the left side of the premises: 1 inhaling device containing 105ml of a liquid, which contained 0.09 gramme of a solid upon drying, containing methamphetamine (“E9”);

(iii)   On a table in the room on the right side of the premises: 1 inhaling device containing 117ml of a liquid, which contained 0.08 gramme of a solid upon drying, containing methamphetamine (“E10”);

(iv)   On a table near the toilet: an inhaling device containing 90ml of a liquid which contained 0.07 gramme of a solid upon drying, containing methamphetamine (“E11”).

7.  Upon enquiry, the applicant claimed that E1 was for his own consumption.  He was arrested and cautioned, whereupon he admitted that he was in need of money, that he himself consumed “No 4” and that a friend asked him to take care of the business for one day in order to sell “ice” to customers so that he could earn money and consume “No 4”.  At the time of his arrest, the applicant had HK$1,700 cash and 1 mobile telephone on his person.

8.  In a subsequent video-recorded interview under caution, the applicant admitted the following:

(i)     He began working at the premises at 8 pm on 24 April 2019 and would receive $1,200 for working for 24 hours;

(ii)    He sold 1.3 grammes of heroin for $150 and 1.7 grammes of heroin for $200.  He sold 1.3 grammes of “ice” for $100, 1.75 grammes of “ice” for $800 and 3.5 grammes of “ice” for $1,400;

(iii)   He was responsible for selling dangerous drugs to customers and collecting money from them.  He placed the money in the waist bag seized.  He knew the 13 persons arrested had consumed “ice” or heroin in the premises;

(iv)   He purchased E1 for $200 for his consumption by using rolled-up paper.  E2 was for sale to customers;

(v)    The syringes seized were for injecting heroin.  The bottles seized were for the inhalation of “ice”;

(vi)   He marked the transactions of dangerous drugs in the notebook seized and calculated the amounts to be paid by customers with the calculator;

(vii)  One of the mobile telephones seized was for calling customers;

(viii) The mobile telephone and money seized from the applicant belonged to him and he had obtained the money at work.

9.  The Government Chemist examined and certified the quantities and narcotic contents of E1-E4 and E8-E11 as set out above.  The estimated street value of the methamphetamine and heroin seized were respectively $6,595 and $1,035.

10.  It was admitted that the applicant unlawfully trafficked in the dangerous drugs seized and kept a divan where dangerous drugs were sold for the purpose of smoking, inhalation, ingestion or injection.

Mitigation and Newton Inquiry

11.  At the hearing on 20 August 2020 before the judge, the applicant claimed through counsel that he had purchased the heroin in E1 for $400 and a bag of “ice” (being one of the bags in E2) for $800 for his own consumption^[3]. The applicant relied on the urine test results upon his admission to Lai Chi Kok Reception Centre on 28 April 2019 to show that he had consumed “ice” and heroin immediately before his arrest^[4]. Despite the judge stating that the applicant might wish to give evidence on the quantities of drugs for self-consumption, the applicant initially did not wish to give evidence but would rely instead on counsel’s submissions^[5]. The judge remarked that, in the video-recorded interview, the applicant had never claimed to purchase “ice’ for his own use; indeed, he had said the “ice” in E2 was for sale to customers^[6]. The judge also noted that, if the applicant’s assertion of spending $400 and $800 on drugs for self-consumption was true, he would have spent all the money he would have received for running the divan in 24 hours^[7].

12.  After the judge indicated that she was not prepared to accept mere submissions in respect of the issue of own consumption, the applicant elected to give evidence^[8].

13.  In his evidence, the applicant stated that he consumed on average 1.75 grammes of “ice” every two to three days and two tablets of heroin every day^[9]. He spent $800 on “ice” (which may be more or less than 1.75 grammes)^[10] and $400 on two tablets of heroin^[11].  Referring to photograph 25 [in the lower court files], the applicant stated that the bag of “ice” in E2 he purchased for $800 was “either one of the two bags at the bottom”^[12].  He said that he paid for the drugs with the money he had won from playing videogames^[13].  He explained that he did not tell the police about his purchase of “ice” in E2 at the time of arrest because he was not asked about it.  He also asserted that at the time of the video recorded interview, his mind was not clear due to a lack of sleep; accordingly, he had neglected to tell the police about his purchase of “ice”^[14].

14.  Under cross-examination, the applicant agreed that in his cautioned statement what he meant by “number 4” was heroin^[15]. He relied on $3,000 social security payments per month but he spent no less than $20,000 monthly on himself^[16]. The applicant said he might spend up to $3,000 on dangerous drugs for his consumption each day^[17].

Reasons for sentence

15.  After reciting the facts in the case, the judge noted what had been said on the applicant’s behalf in mitigation.  The applicant needed quick money to support his drug addiction, which was evidenced by the urine test results upon his admission to the Lai Chi Kok Reception Centre. Having heard the applicant in the Newton Inquiry, the judge rejected his claim that one of the bags of “ice” in E2 was for his own consumption, but accepted that the heroin in E1 was for his own consumption.  However, the heroin in E1 was so minimal that no further discount in sentence could be given.  The judge remarked that, even if she were to accept that both E1 and a bag of “ice” in E2 were for the applicant’s consumption, the quantity would not have reached the threshold of a “significant proportion”.  Indeed, this had been fairly conceded by the applicant’s counsel during his submissions.  Accordingly, no discount was given for this matter^[18].

16.  In relation to the charge of trafficking in dangerous drugs, the judge noted that the applicant had trafficked in two dangerous drugs, “ice” and heroin.  The narcotic content of the “ice” being 10.92 grammes and the heroin 1.18 grammes.  Having made reference to HKSAR v Tam Yi Chun^[19] and R v Lau Tak Ming^[20], the judge worked out the starting points for the respective dangerous drugs but considered that the individual approach in sentencing would result in an excessively high sentence.  The judge turned to the combined approach and used “ice” as the base drug because of its potency.  Having determined that the starting point for 10.92 grammes of “ice” would be 7 years’ imprisonment, the judge then checked the upward adjustment against the results of the absurdity test (7 years and 1 month), the conversion test (7 years and 6 months), and the ratio test (6 years and 11 months).  The judge decided to add 1 month to the starting point for the heroin concerned, resulting in 7 years and 1 month (or 85 months’) imprisonment.  The judge enhanced the sentence by 3 months because the applicant had trafficked in two types of drugs, which was an accepted aggravating feature by virtue of his ability to cater to a wider market and the effects on drug abusers of taking a combination of drugs.  The judge then considered that the customary discount for guilty plea would be reduced since the applicant had not been successful in the Newton Inquiry.  The discount was therefore reduced from 33.3% to 30%.  The judge found no other mitigating factors.  The ultimate sentence in respect of Charge 1 was 61 months’ imprisonment^[21].

17.  In relation Charge 2, by reference to HKSAR v Ng Ka Wing Kevin, HKSAR v Lam Lai Chu Patsy and HKSAR v Chong Cho Kit^[22] and bearing in mind the scale of the divan, the judge considered an appropriate starting point to be 2 years’ imprisonment.  Giving a full one-third discount for his timely plea, the resultant sentence was 16 months’ imprisonment.^[23]

18.  In Ng Ka Wing Kevin, the Court of Appeal held that sentences for keeping a divan and trafficking in dangerous drugs which were being consumed in the divan could be ordered to run consecutively, since the acts of supplying drugs to others and running a divan were different matters.  Nevertheless, in applying the totality principle, 6 months of the sentence on Charge 2 was ordered to be served consecutively to that for Charge 1, resulting in a total sentence of 67 months’ (or 5 years and 7 months’) imprisonment^[24].

Grounds of appeal

19.  The applicant complains that his sentence is heavier than other cases of a similar nature.  He also says that the judge should have accepted he was a drug abuser and that the quantity of drugs involved in the trafficking charge should be reduced for the purpose of sentencing. Finally, he expressed his dissatisfaction that his sentences were ordered to run partly consecutively.  This morning he has made the further point that if the amount he claimed was for his own consumption was never going to amount to a significant proportion of the drugs seized and therefore make any difference to his sentence, he should never have been asked by his counsel to go into the witness box and risk receiving a reduced discount on sentence.

The respondent’s stance

20.  Ms Sheroy Tam, on behalf of the respondent, submitted that the judge was correct to adopt 7 years and 1 month’s imprisonment as the overall starting point for the trafficking charge.  The judge was also correct to enhance the sentence by 3 months for the aggravating factor of trafficking in two kinds of dangerous drug.

21.  Ms Tam maintained that it is well-established that where the mitigation necessitates the holding of a Newton Inquiry but the mitigation is rejected, the Court is entitled to reduce the discount normally given for the guilty plea: see R v Lee Chiu Pang[25].

22.  Further, since the applicant’s counsel had conceded that even if the court were to accept the claim that the heroin in E1 and one of the bags of “ice” in E2 were for the applicant’s own consumption, the quantity would not amount to a significant proportion so as to warrant further discount^[26].

23.  As for ordering the sentences to run partly consecutively, Ms Tam submitted that the authorities indicated that keeping a divan and drug trafficking were separate and distinct offences, even though they may be committed at the same place at the same time; hence consecutive sentences may be imposed, whilst bearing in mind the principle of totality: see Ng Ka Wing Kevin; Chong Cho Kit.  Indeed, the applicant’s counsel in the court below expressly acknowledged the validity of partly consecutive sentences^[27]. Therefore, it was appropriate for the judge to order 6 months of the sentence for Charge 2 to run consecutively to that for Charge 1.  The overall sentence of 5 years and 7 months’ imprisonment was neither manifestly excessive nor wrong in principle.

Discussion

24.  I do not think the judge can be faulted in her reasoning or her approach to sentence.  I am more concerned as to why the applicant should have been asked to go into the witness box if his evidence could not have made any appreciable difference to sentence.  As he sees it, he thereby lost the chance of a further reduction of sentence in respect of Charge 1 of about 2.9 months.

25.  However, the Court of Appeal is more concerned in drugs cases with the end result than the method by which the sentence has been reached.  The relevant narcotic quantities for sentencing purposes in this case were 10.92g of methamphetamine and 1.18g of heroin hydrochloride.  The applicant was keeping a divan where security cameras were installed and in which he was actually trafficking by way of directly supplying two kinds of dangerous drugs to a large number of customers on a 24-hour basis. 

26.  Given the quantities of two different dangerous drugs involved, his role as a trafficker pursuant to which he must have been directly supplying drugs to customers for some 22 hours by the time of the police raid and his function as the keeper of premises where a large number of people could take different drugs in various ways, I cannot see there being any reasonably arguable grounds of appeal that the overall sentence of 5 years and 7 months’ imprisonment in these circumstances was either manifestly excessive or wrong in principle.  Accordingly, the application for leave is refused.

27.  I advise the applicant that he has the right to renew his application for leave to the Court of Appeal.  However, he is also warned that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

[1]  Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

[2]  Contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

[3]  At [6]-[7] of Written Submissions for Mitigation, AB, p 15.

[4]  AB, pp 23Q-24F and Urine Test Report at AB, p 22.

[5]  AB, p 29A-O.

[6]  AB, pp 35T-37J.

[7]  AB, p 38H-S.

[8]  AB, pp 41G-42J.

[9]  AB, pp 43J-45L.

[10]   AB, pp 45T-46H.

[11]   AB, p 45K-M.

[12]   AB, p 48C-L.

[13]   AB, p 48R-T.

[14]   AB, p 49G-O.

[15]   AB, pp 49Q-50A.

[16]   AB, p 51H-M.

[17]   AB, p 53D-G.

[18]   AB, pp 9M-10Q.

[19]   HKSAR v Tam Yi Chun [2014] 3 HKRLD 691.

[20]   R v Lau Tak Ming [1990] 2 HKLR 370.

[21]   AB, pp 10T-12M.

[22]   HKSAR v Ng Ka Wing Kevin (Unrep., CACC 563/1999, 23 February 2000); HKSAR v Lam Lai Chu Patsy (Unrep.,CACC 56/2003, 6 August 2003); HKSAR v Chong Cho Kit (Unrep., CACC 363/2005, 12 July 2006).

[23]   AB, p 12N-R.

[24]   AB, pp 12R-13D.

[25]   R v Lee Chiu Pang [1995] 2 HKC, 523, at 526.

[26]   AB, p 10N-Q.

[27]   At [16] of Written Submissions for Mitigation at AB, p 16.