HKSAR v. LAI KAM SANG

CACC578/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 578 OF 1998

(ON APPEAL FROM HCCC 356 OF 1997)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced one count of trafficking in the drug commonly known as 'ice'. This count was particularized as follows: that he on 3rd June 1997, outside Hei Tsui House, Wan Tsui Estate, Chai Wan, unlawfully trafficked in a dangerous drug, namely 27.16 grammes of a crystalline solid containing 26.61 grammes of methamphetamine hydrochloride. He originally pleaded not guilty to the charge but, after two days of a voir dire hearing, the court accepted a plea of guilty to simple possession and he was sentenced to imprisonment for two years and eight months.

2. Saied J. when sentencing said:

"Looking at the case and those circumstances, it appears to me that the only mitigation that this defendant really relies on is his plea of guilty. And as I have indicated, he was prepared to plead guilty to simple possession as early as June 1998. I am keeping in mind what was said in Lau Chi-chiu, Crim.App.395 [1998]. This particular paragraph, quote:

"A defendant who is prepared to plead guilty to being in possession of dangerous drugs ... from the outset his willingness to plead guilty to possession." (He there reads the whole passage.)

So he is entitled to the full one-third discount. My starting point is - keeping in mind that Mr. Cheung suggested a starting point below three years - it's two years, and enhancing it on account of the latent risk, I consider that the appropriate sentence - starting point will be or should be four years. Giving him one-third discount. I sentence him to two years eight months. I hope my arithmetic is correct."

3. The applicant now appeals on the ground that the judge did not correctly assess the sentence, neither taking a proper starting point nor giving a proper enhancement factor on account of latent risk.

4. We are disturbed by a passage, which appears at page 16 of the judgment, when there was an exchange between the court and counsel for the applicant which was as follows:

"Court: Yes. Last time, when you addressed me on that case you said the quantity in our case is slightly less.

Mr. Cheung: Yes.

Court: And you suggested a starting point of three years, according to my note.

Mr. Cheung: Yes, indeed, my Lord, yes.

Court: I'm taking a starting point of two years.

Mr. Cheung: Yes.

Court: Not three years."

5. The trial judge appears to have been there referring to the decision in Lam Wai-ip, Crim.App. No. 214 of 1997 (unreported), and to have been adjusting that starting point from three years to two years. He seems to have been proceeding upon the basis that Lam Wai-ip had not, when it spoke of a sentence of three years already taken into account the enhancement factor. The judge was wrong if he so thought as that factor had already been taken into account. He should, when assessing starting point, have been looking at the accepted range of sentence for simple possession which is from one year to 18 months. Having done so, he then should have assessed the proper enhancement for latent risk.

6. In Lam Wai-ip, the court made it plain that the latent risk when it comes to ice is a very serious one. It said:

"In recent times the Court of Appeal has to grapple with the problem of simple possession of more than minimal quantities and to consider the latent risk factor which must be taken into account when dealing with such offences. This factor is of particular importance when dealing with 'ice' which is a recreational drug fashionable for use on social occasions."

7. The latent risk enhancement adopted by the judge was one of 100%, i.e. from two years to four years. This approach is given some support by the case of Lau Chi-chiu, Crim.App. No.395 of 1998 (unreported), in which the judge employed such an enhancement percentage and the Court of Appeal stated the judge could not in any sense be criticized for her approach to sentencing. However the judge was there dealing with a quantity of 65.33 grammes of ice containing 63.38 grammes narcotic content. We are satisfied that, while it might be proper to double the sentence because of latent risk where as large a quantity as that is involved, where there is a smaller quantity, such as we have in the present case, doubling would not be appropriate. We consider that the latent risk factor merited additional imprisonment for one year and that the judge should have taken as his starting point for simple possession a sentence of no higher than 18 months. This would make the eventual sentence one of 30 months - 18 months for the offence of simple possession plus another 12 months because of the latent risk factor. The applicant would then be entitled, because of his plea, to a one-third reduction bringing the sentence to 20 months. The sentences imposed will, therefore, be varied accordingly.

8. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence is varied to one of 20 months.

9. We are informed by Mr. Ramanathan, who appears for the applicant, that this will result in his immediate release.