LAU SIU FUNG also known as LAU SIU TONG

CACC 56/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 56 OF 2017

(ON APPEAL FROM DCCC NO 1065 OF 2016)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against a sentence of 4 years’ imprisonment imposed by HH Judge Lam (“the judge”) on 22 February 2017, having pleaded guilty to one charge of trafficking in a dangerous drug, namely 14.94 grammes of a mixture containing 11.68 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one charge of keeping a divan, contrary to section 35(1)(a) and (2) of the same Ordinance. The applicant filed his Notice of application for leave to appeal against sentence (“Form XI”) on 9 March 2017.

The facts

2.  On 25 August 2016, at about 9.45 pm, police officers mounted an anti-narcotics operation outside a room of the Harbour Hotel in Mong Kok, Kowloon (“the Room”).

3.  At about 10.35 pm, the applicant emerged from the Room and was intercepted by the police, who then immediately entered the Room where they found three males and three females.  Upon a search of the applicant, the following items were found on him: one transparent re‑sealable plastic bag containing suspected dangerous drugs; one transparent re-sealable plastic bag containing one plastic wrapper containing suspected dangerous drugs; a mobile telephone; HK$1,125 in cash; and the key to the Room[1].  Also found in the Room were empty transparent re-sealable plastic bags, an electronic scale, plastic sheets, aluminium foil, rolled paper, lighters and a pair of scissors.

4.  Upon arrest and caution, the applicant admitted that he rented and lived in the Room, and sold “white powder” to others to consume inside the Room in order to earn a bit of money.  In a video-recorded interview conducted later that day, the applicant elaborated that he would invite close friends to the Room, where he would sell heroin to them for around HK$200 per pellet.  He had sold two pellets on the day of his arrest for HK$400. He also admitted that the items found in the Room were used for inhaling drugs and for portioning and re-packaging the drugs into pellets for sale.

5.  The estimated retail value of the drugs was HK$11,055.60.

Mitigation

6.  In mitigation, it was submitted by counsel on the applicant’s behalf that some of the drugs were to be used for the applicant’s own consumption, although the exact quantity was not articulated, nor did the applicant give evidence on the issue.  It was also said that the applicant ran a “fairly unsophisticated operation” and was only selling drugs to close friends.  At the time, the applicant worked as a decorator and lived alone.

Reasons for sentence

7.  In his reasons for sentence, the judge took into account the applicant’s criminal record (which included numerous offences of dishonesty and possession of dangerous drugs) and his background as presented in mitigation.  In relation to the issue of his own consumption of dangerous drugs, the judge considered the authorities of HKSAR v Chow Chun Sang[2] and HKSAR v Liu Ming Sze[3]. Whilst accepting that the applicant was a heroin addict at the time, he did not afford the applicant any discount for his own consumption of part of the dangerous drugs, since all that had been advanced was a mere claim from the Bar table, unsupported by evidence.

8.  Accordingly, the judge adopted a starting point of 5 years’ imprisonment in respect of Charge 1, which he discounted by a full one-third to 40 months’ (or 3 years and 4 months’) imprisonment for plea.  In relation to Charge 2, he took a starting point of 2 years’ imprisonment, discounting it to 16 months’ imprisonment for plea.  Having considered the totality of sentence for the two offences, 8 months of the sentence on Charge 2 was ordered to run consecutively to the sentence on Charge 1, making an overall sentence of 48 months’ (or 4 years’) imprisonment.

Grounds of appeal

9.  In his grounds of appeal against sentence attached to his Form XI, the applicant submitted that the judge had “agreed (with) me that part of the dangerous drugs was for my own consumption and yet my sentence was not reduced”; thus leading to a sentence which was manifestly excessive.  Before me this morning, the applicant complains that his counsel never told him prior to sentence that he should give evidence about his daily consumption of heroin.

The respondent’s submissions

10.  Mr Franco Kuan, on behalf of the respondent, submits that the applicant has misunderstood what the judge meant when he said he accepted that the applicant was a drug addict.  The judge did not mean that he necessarily accepted that the applicant would have consumed any of the dangerous drugs found in his possession.  Mr Kuan pointed out that defence counsel in mitigation in the court below had deliberately not pursued his submission that some of the drugs were for the applicant’s own consumption[4]. Accordingly, there was no basis to reduce the sentence for the bare assertion, not supported by evidence or pursued, that the applicant would have consumed some of the dangerous drugs in question.  As to evidence of the applicant’s daily consumption rate of heroin, Mr Kuan says that such evidence would not have affected the issue, since the judge accepted that the applicant was a drug addict at the material time.

11.  Mr Kuan relied on the cases of HKSAR v Ho Sai Chak[5] and HKSAR v Ng Ka Wing, Kevin[6] to submit that the total sentence imposed by the judge for the two offences was appropriate.

Consideration

12.  It does not follow that simply because a defendant is a drug addict, he will necessarily consume part of any dangerous drugs in which he is alleged to be trafficking.  He may or may not be consuming some of the drugs in which he is accused of trafficking: that is a matter of evidence, if it is not accepted by the prosecution or plainly obvious from the circumstances.  Further, given that it is only where “a significant proportion” of the drugs in question are for a defendant’s own consumption, and where such contention “may well make a difference to sentence” (see HKSAR v Wong Suet Hau & Another[7]), a bare assertion from the Bar table will seldom be sufficient unless the contention is accepted by the prosecution or the facts and circumstances are plainly consistent with the assertion.  Even if evidence is forthcoming to support such an assertion, the larger the quantity, the less likely it is that a claim of own consumption will reach the threshold of “a significant proportion” of the drugs, so as to make any difference to sentence: see HKSAR v Yeung Shek Yung[8].

13.  In the present case, a bare assertion was made by counsel on the applicant’s behalf that the quantity of drugs intended by the applicant “would be a small proportion – 10 per cent, we would say something like (that).”  When that assertion ran into the obstacle of the judge rightly saying that he was not prepared to act on the assertion alone without evidence, counsel indicated that he would not be calling evidence and declared “I shall simply leave it”.

14.  In these circumstances, it is not correct to say that the judge accepted that any of the dangerous drugs in question were for the applicant’s own consumption, notwithstanding his drug addiction, nor is the contention now made that some of the drugs were for the applicant’s own consumption a tenable ground of appeal.  Where this matter is in issue, the proper forum for its determination is the original court of trial.

15.  The relevant range of sentence in respect of 11.68 grammes of heroin narcotic was, in accordance with the guidelines laid down in R v Lau Tak Ming & Others[9], 5 to 8 years’ imprisonment after trial.  The judge’s adoption of 5 years’ imprisonment as a starting point in respect of Charge 1 is unassailable on the basis of those guidelines, as is the discounted sentence for plea of 40 months’ imprisonment.

16.  The keeping of a divan, to which others could come, buy and consume dangerous drugs, is a matter that clearly aggravates the offence of trafficking, for the obvious reason that the keeper in such circumstances is not only providing the drugs in question, he is also providing the means, facilities and opportunity for their consumption.  To repeat a well-worn phrase, the applicant in the present case was providing “a one-stop shop”.

17.  I can see no reasonably arguable ground of appeal that the consecutive element of 8 months’ imprisonment in respect of the charge of keeping a divan was manifestly excessive and/or wrong in principle. Accordingly, I can see no reasonably arguable ground of appeal that the overall sentence of 4 years’ imprisonment in respect of Charges 1 and 2 was manifestly excessive and/or wrong in principle.  Indeed, such sentence is entirely consistent with that approved in HKSAR v Ng Ka Wing, Kevin (supra), where the quantity of heroin narcotic concerned in the trafficking charge was a similar 11.88 grammes, in conjunction with a further charge of keeping a divan.

18.  The application for leave is accordingly refused. The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application.