HKSAR v. CHING KIM HO

HCMA 29/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 29 OF 2015

(ON APPEAL FROM TMCC 638 OF 2014)

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REASONS FOR JUDGMENT

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1.  This was an appeal against sentence. At the conclusion of the hearing, I allowed the appeal. These are my reasons for doing so.

The circumstances leading to the present appeal

2.  The appellant was charged with one count of trafficking in dangerous drugs.  He pleaded not guilty to the charge.  He was found not guilty of the charge after trial but convicted of a lesser offence of possession of dangerous drugs by a deputy magistrate[1] (the magistrate) at Tuen Mun Magistracy.  

3.  The drugs concerned were 3.44 kilograms of herbal cannabis and 2.49 grammes of a solid containing 0.91 grammes of cocaine.  He was sentenced to 24 months’ imprisonment.

4.  On 20 March 2015, I dismissed the appellant’s appeal against conviction but found in so far as the conviction for possession of dangerous drugs they should not include possession of the drug cocaine. 

5.  In the circumstances, I commented that I would grant an application to appeal against sentence out of time should the appellant wish to do so.  At the time I was not assisted with the magistrate’s reasons for sentence or transcript concerning sentence as these were understandably not part of the appeal bundle for the appeal against conviction.

6.  The appellant filed his application for extension of time for giving notice of appeal and his notice of appeal against sentence on 23 March 2015. 

The offence leading to the sentence appealed against

7.  On 24 February 2014 customs officers mounted an anti-dangerous drugs operation at the Kingswood Richly Plaza car park, Tuen Mun.  Two officers performed surveillance duty on a parked silver colour private car (the target vehicle) from 6:00 pm onwards.  

8.  Later that evening the appellant was seen approaching the target vehicle and opening the car boot with a key; he stayed behind the opened car boot of the target vehicle, head leaned forward with both hands inserted into the car boot for approximately two minutes; he closed the car boot and fled immediately when the customs officers were approaching him; when being chased by the customs officers, a key was dropped onto the ground from the appellant’s person, that key was later found to open the car boot of the target vehicle; a strong irritating smell emerged as soon as the car boot of the target vehicle was opened.  The large quantity of dangerous drugs, cannabis in herbal form as stated in the charge was readily visible inside the car boot. 

9.  After the customs officers searched the target vehicle a quantity of cocaine was found inside the compartment of the target vehicle in the storage box between the two front seats.  

10.  The magistrate found the appellant was in possession of both the herbal cannabis and cocaine in the storage box in the car and sentenced the appellant to 24 months’ imprisonment. 

The magistrate’s reasons for sentence

11.  The magistrate took into account the appellant was aged 27 years and had three previous convictions.  He observed that the appellant was not a first offender and had one similar offence for possession of a dangerous drug to which he was sentenced to probation on 30 January 2014. 

12.  The Drug Addiction Treatment Centre (DATC) report called for stated that the appellant was not a drug dependant and he was therefore not suitable for admission to DATC.

13.  The magistrate rejected Mr Keith Oderberg, counsel for the appellant at trial and on this appeal’s submission to allow the appellant to continue with his probation supervision.  The rejection was based on the grounds that the appellant committed the present offence very shortly after he was placed on probation, the large quantity of drugs involved and the actual risk of trafficking in those drugs.  He considered a sentence of imprisonment was appropriate.

14.  The magistrate did not take into account for the purposes of sentence the cocaine in view of the small quantity involved, he only sentenced the appellant for the herbal cannabis.  He said: -

“…the sentence I imposed on the appellant was just based on the herbal cannabis.”

15.  In sentencing the appellant the magistrate referred to and adopted, with some variation, the guidelines in the cases of R v Chan Chi-man [1987] HKLR 221 and as recast in AG v Tuen Shui-ming and Another [1995] 2 HKC 798.  It is to be noted that these cases relate to possession of cannabis resin for unlawful trafficking (my emphasis).  He decided the proper total sentence was 24 months.  He sentenced the appellant to 16 months for possession of 3,440 grammes of herbal cannabis and added 8 months for latent risk, making the total sentence of 24 months’ imprisonment.

16.  I set out the magistrate’s reasoning at arriving at the sentence[2] : -

“8. In the present case, the dangerous drugs involved 3.44 kilograms of cannabis in herbal form and 2.49 grammes of a solid containing 0.91 gramme of cocaine.

The Queen v. CHAN Chi-man provided the suggested tariff for possession of cannabis resin for the purpose of unlawful trafficking. Under band (d): over 2000 grammes should be 16-24 months; Under band (e): over 3000grammes should be 24-36 months; Under band (f): over 6000 grammes should be 36-48 months.  The tariff was recast in the case of R. TUEN Shui-ming and Another.  For over2,000 grammes, the tariff is 16 to 24 months; for over 3,000 grammes, the tariff is 24 to 36 months.  The Court said “A sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil.  Any adjustment should be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin…. These observations are not meant to fetter the judges’ discretion particularly in the first band.  Tariffs, as we have said in the past, are not a straight jacket.  A judge must bear the tariff in mind when sentencing but must, in the outcome, arrive at a sentence which gives proper weight to the facts of the case before him.”

9. It was also mentioned in TUEN Shui-ming’s case that according to the forensic scientist of Government Laboratory, 500 grammes of either herbal cannabis or cannabis resin will produce 2,500 cigarettes. In the present case, there were 3,440 grammes of herbal cannabis. Mathematically speaking, that quantity could produce up to 17,200 cigarettes. It’s my view that the quantity in the present case falls into the category of large amount.

10. The appellant was convicted after trial.  He committed the present offence in less than a month after he was placed on probation supervision.  According to the DATC report, he was not remorseful and gained no insight into his problems.  In the light of the large quantity involved, it is my view that there was an actual risk of trafficking. On the other hand, the quantity of cocaine involved, just under 1 gramme in purity, is insignificant when comparing with 3,440 grammes of cannabis although in herbal form, hence, the sentence I imposed on the appellant was just based on herbal cannabis.  For 3,440 grammes of cannabis, I would have adopted 26 to 28 months as starting point if it was cannabis resin.  Because it was not cannabis resin but herbal cannabis, but for the large quantity and the actually risk of trafficking,  I decided that the proper sentence is 24 months imprisonment, that is 16 months for possession of 3,440 grammes of herbal cannabis and 8 months be added for the latent risk, making a total of 24 months imprisonment.”

Ground of appeal

17.  Mr Oderberg’s only ground of appeal was simply that the sentence imposed was excessive as the effect of the sentence imposed is the same as if the appellant had actually been sentenced for trafficking in cannabis resin or at least trafficking in herbal cannabis and not for simple possession of herbal cannabis.  He suggests that a total sentence of 16 months’ imprisonment would have been appropriate. 

Discussion

18.  In Tuen Shui-ming the Court of Appeal recast the guidelines in Chan Chi-man for trafficking in cannabis.  Power, V.-P giving the judgment of the Court said :

“We are satisfied that a sentencing court must now bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis and that cannabis oil has an average also about four times high than the average in cannabis resin. Taking this into account a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should, as we have already indicated, be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.”

19.  If the appellant had been convicted of trafficking in cannabis resin in this total amount of 3,440 grammes adopting the guidelines Tuen Shui-ming the starting point of his sentence would have been 25.5 months.  For trafficking in herbal cannabis the starting point of his sentence would be even lower than that term.

20.  In sentencing the appellant the magistrate based his starting point in reference to those of trafficking.  Trafficking in a dangerous drug carries a heavier sentence than simple possession of the same drugs for self-consumption.  I agree with Mr Oderberg that the sentence was excessive.  Mr Felix Tam for the respondent accepted that it was so.  The approach to the sentence should have been in respect of a charge of possession of a dangerous drug not trafficking in a dangerous drug.  

21.  In the circumstances it was not right for the magistrate to pass a sentence equivalent or almost equivalent to a sentence had the appellant been convicted of a charge of trafficking in cannabis resin or in herbal cannabis.  

22.  Sentencing guidelines for simple possession of dangerous drugs tend to suggest ranges for quantities which a bona fide user will normally have in his possession.  In the case of drugs such as ice and heroin this tends to be in a range of 12 to 18 months see HKSAR v Mok Cho Tik [2001] 1 HKC 261 Stock JA (as he then was) giving judgment for the court said

“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. 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.”

23.  The sentence to be passed is on the basis that all the herbal cannabis in question was possessed by the appellant for his own consumption.  In terms of quantity, the quantity possessed by this applicant was substantial.  As indicated by the magistrate the quantity could produce up to 17,200 cigarettes.  In view of the quantity there was a very high risk of dissemination of this substantial hoard.  There was a latent risk that the drugs would find their ways into the hands of others apart from the appellant. The magistrate was correct to enhance the starting point as a result of this risk.

Conclusion

24.  The appellant is 27 years of age.  This was his second conviction of possession of a dangerous drug.  About a month before the commission of this offence he was sentenced to probation.  The amount of drugs in this case was considerable.  There were no mitigating factors.  Taking all these factors into consideration I think that an appropriate starting point in this case is 12 months’ imprisonment. The high risk factor warrants in my view an enhancement of 5 months see HKSAR v Lee Chun Man CACC 360/2014.

25.  Accordingly the sentence should be one of 18 months’ imprisonment. 

26.  In the circumstances the appeal is allowed to the extent that the sentence that the magistrate passed is quashed and substituted by a sentence of 18 months’ imprisonment.