HKSAR v. SIU KWOK CHUN

CACC 378/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 378 OF 2016

(ON APPEAL FROM HCCC 413 OF 2015)

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R E A S O N S   F O R   J U D G M E N T

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1.  The applicant was charged with two offences in an amended indictment.[1] The first offence was Occupier permitting premises to be used for the unlawful storage of a dangerous drug, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. This count in the indictment alleged that on 30 April 2015 he, being the occupier of certain premises, permitted those premises to be used for the unlawful storage of 121.64 grammes of crystalline solid containing 118.38 grammes of methamphetamine hydrochloride. He was also charged with the offence of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. In respect of this count in the indictment the particulars are that on 30 April 2015, at the same premises particularized in the other count, he had in his possession 3.24 grammes of crystalline solid containing 3.16 grammes of methamphetamine hydrochloride. In this judgment I shall refer to methamphetamine hydrochloride as Ice.

2.  The applicant pleaded guilty to both these charges before Deputy High Court Judge S D’Almada Remedios, as S D’Almada Remedios J then was, (“the judge”) and on 25 November 2016 was sentenced by her to 4 years 4 months’ imprisonment in respect of the first count.  In respect of the second count he was sentenced to 12 months’ imprisonment and that sentence was ordered to be served concurrently with the sentence on count 1.

3.  The applicant subsequently applied for leave to appeal his sentences.  At the hearing of the application I refused it and said I would hand down my reasons for doing so at a later date.  These are my reasons. 

The prosecution case

4.  A document entitled “Brief facts of the case” was relied on by the prosecution for the purposes of sentencing the applicant. This document revealed that on 30 April 2015 police officers, armed with a search warrant, raided Flat 193, 3/F, Hoi Chu Mansion, Nos 189-193 Cha Kwo Ling Road, Kwun Tong.  The applicant and 3 other male persons were found inside this flat.  The flat had 4 rooms and the applicant occupied one of them.  In the room occupied by the applicant police found:

(1) one Ice bottle;

(2) one bag containing 3.24 grammes of a crystalline solid containing 3.16 grammes of Ice stored in a locked drawer that was opened with a key provided by the applicant;

(3) one yellow metal box containing

(a) two bags containing a total of 22.54 grammes of a crystalline solid containing 21.98 grammes of Ice;

(b) three electronic scales;

(c) 92 empty resealable transparent plastic bags;

(4) one tea can containing five bags containing a total of 99.1 grammes of a crystalline solid containing 96.4 grammes of Ice.

5.  The package of Ice which was found in the locked drawer was the subject of count 2 and the applicant admitted that he possessed it for the purpose of his own consumption.

6.  The applicant further admitted in this document that he had permitted a male person by the name of Chow Cheuk Ban to store the other dangerous drugs that were contained in the yellow metal box and the tea can.  He had allowed these drugs to be stored in his room for about a week and he believed Chow would come back to collect the yellow box and tea can in about 10 days time.  Chow Cheuk Ban had told him not to touch the yellow box and the tea can.  The applicant admitted that he knew the yellow metal box and the tea can contained Ice.

7.  This document concluded with an estimated street value of the drugs which was $53,324 as of April 2015.

The mitigation

8.  These offences occurred during the period of operation of a suspended sentence.  On 30 January 2014 the applicant was convicted of fraud, contrary to section 16A of the Theft Ordinance, Cap 210, and was sentenced to 6 months’ imprisonment which was suspended for a period of 2 years.  This meant that the current offences were committed 15 months into the 24 months suspension period.

9.  At his sentencing hearing the applicant was represented by Mr Dick Lee, who also appeared for him on the application for leave to appeal.  Mr Lee informed the judge that the fraud offence of which the applicant had been convicted in 2014 was a Social Welfare fraud.  The applicant received money from the social welfare disability fund and had failed to declare that he had purchased a motor vehicle.  Mr Lee referred to two English Court of Appeal judgments and submitted to the judge that it was not necessary for her to activate the suspended sentence, but that if she felt she must activate it, she should order that it be served concurrently with the sentences to be imposed by her for the present offences. 

10.  He then provided the judge with information on the applicant’s personal situation, namely that he was 65 years of age, was married and his wife was 62 years of age.  They have a daughter and a son and the daughter was 35 years of age.  The applicant had been working as a construction worker before his arrest and was earning about $20,000 a month.

11.  Mr Lee also informed the judge that in 2014 the applicant was involved in a traffic accident from which he suffered injuries.  He started consuming Ice as a means of numbing the pain that he was suffering from his injuries.  He said that the drugs the subject of the second count were purchased by the applicant from Chow “for around $1,000 at a time.”

12.  In respect of the circumstances of the present offence he informed the court that the applicant was purchasing Ice from Chow and he agreed to Chow’s request to allow him to store drugs in his room.  He understood that Chow wanted to use the room for this purpose for about two weeks.  He had stored them for one week by the time he was arrested and he expected to be storing them for a further 10 days.  Mr Lee emphasized that the applicant was not expecting to receive any financial gain from accommodating Chow in this way. 

13.  Mr Lee submitted that the applicant did not actively allow Chow to store the drugs at his flat; he said it was more a question of the applicant not refusing Chow’s request to keep the drugs there.  He also referred to the fact that the storage was not for a substantial period of time and it was not for reward.  Nor, he said, were the premises, that is the applicant’s room, being used primarily for the purpose of storing the drugs; rather the room was being used by the applicant for the sole purpose of enabling him to consume drugs.  He used the room for this purpose because he did not want his wife and daughter to realize that he was taking drugs and did not want them to have any involvement with his drug taking.

14.  In respect of what might be an appropriate sentence for this type of criminal conduct Mr Lee referred the judge to the judgments of the Court of Appeal in HKSAR v Ho Wing To[2] and R v Lee Kwok Keung[3] where it was said that the extent of knowledge and involvement of the accused person together with the amount of financial benefit, if any, are important sentencing considerations.  Mr Lee also referred the judge to a number of trial sentencing decisions. 

15.  It was said by Mr Lee that the applicant had underestimated the legal consequences of providing this form of assistance to Chow.  Through his counsel the applicant promised the court that with the support of his wife and daughter he would not have any further involvement with dangerous drugs.  Mr Lee asked the court to impose a sentence as lenient as possible as the applicant was now 65 years of age. 

The judge’s Reasons for Sentence

16.  After referring to the personal circumstances of the applicant the judge noted that he had previous convictions, three of which were drug related but that the drug related offences were committed more than 20 years ago.

17.  In respect of the fraud conviction for which he had received a suspended sentence, the judge noted that the principle to be derived from the English cases to which she had been referred was simply that where a long sentence was to be passed on a defendant for his current offence then regard must be had to the total sentence and no useful purpose may be served by increasing an already long sentence by only a small amount by activating a short suspended sentence. However, she noted that in the two English cases the sentences imposed by the court were 12 years and 11 years respectively and she was not contemplating imposing a sentence for the first charge as long as either of these sentences.  Nevertheless, she reminded herself to still have regard to the totality principle when sentencing the applicant. She considered that in the case of this applicant the suspended sentence should be activated and should also be ordered to be served consecutively.

18.  She referred to the decisions of HKSAR v Ho Wing To and R v Lee Kwok Keung.  From the latter case she took the principle that the offence of occupier permitting premises to be used for the unlawful storage of a dangerous drug was an offence which varied greatly in its gravity and is not an offence for which the Court of Appeal could ever lay down any useful guidelines.  However, the extent of knowledge and involvement of an accused person together with the amount of financial benefit, if any, that he received are important considerations.  The judge also took note of the sentences imposed in the cases of HKSAR v Lam Lai Chu Patsy[4], R v Lee Kwok Keung, HKSAR v Cheung Yiu Fai Alex[5], HKSAR v Ho Wing To and HKSAR v Chan Hoi Wing & Anor[6], copies of which Mr Lee had submitted to her.

19.  The judge then had regard to the quantity of drugs that the applicant was storing for Chow.  She said that if the applicanthad been convicted of trafficking in this quantity of drugs the starting point after trial would have been about 11 years 9 months’ imprisonment which after a one third discount would become 7 years 10 months’ imprisonment. 

20.  In respect of the first count, the judge adopted a starting point of 6½ years’ imprisonment.  Giving the applicant full credit for his plea of guilty she reduced the starting point by one third and sentenced him to 4 years and 4 months’ imprisonment.  

21.  In respect of the second count of possession of dangerous drugs the judge adopted a starting point of 18 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 12 months’ imprisonment.  She ordered the sentence in count 2 to run concurrently with the sentence for count 1.

22.  Finally, she activated the applicant’s suspended sentence and ordered that it be served consecutively to the first count thereby making a total period of imprisonment that the applicant had to serve of 4 years 10 months.

The Perfected Grounds of Appeal

23.  The first ground of appeal is that the starting point of 6 years and 6 months’ imprisonment for the charge of occupier permitting premises to be used for unlawful storage of a dangerous drug is too high.

24.  The second ground of appeal is that in all the circumstances the total sentence of 4 years and 10 months’ imprisonment is manifestly excessive.

25.  In support of his first ground of appeal Mr Lee argued that the case was a simple one of the applicant allowing the drug trafficker Chow to store drugs at his flat which the applicant occupied for the purpose of inhaling Ice.  Although the applicant knew Chow was going to leave the drugs at the flat for approximately two weeks or 17 days the drugs were, in fact, only stored at the flat for about a week before they were discovered.  He emphasized there was no evidence of any financial or other benefit received by the applicant and there was no aggravating factor present in the commission of this offence. 

26.  Mr Lee referred to the Court of Appeal’s decision of R v Lee Kwok Keung as being similar to the facts of this applicant except that the quantity of drugs in that case was almost three times more than the quantity of drugs stored by the applicant.  He submitted that the facts in Lee Kwok Keung were far more serious than the facts in the applicant’s case.  In Lee Kwok Keung the Court of Appealaffirmed the starting point of 9 years’ imprisonment. 

27.  Mr Lee also relied on the decision of HKSAR v Lee Shek Tsui & Anor[7], a Court of First Instance sentencing decision where the trial judge imposed a sentence of 4 years’ imprisonment for the same offence in respect of 104.31 grammes of Ice.  Mr Lee emphasized that in Lee Shek Tsui the quantity and street value of the Ice were similar to that of the applicant but the extent of the first accused’s knowledge in that case was far greater than the applicant in the present case.  Mr Lee submitted that the starting point of 4 years’ imprisonment as adopted by the judge in that case was a more appropriate starting point for his client.

28.  In respect of the second ground of appeal Mr Lee relied upon his argument that the starting point should be 4 years’ imprisonment or less. Clearly if this argument was accepted then the sentence imposed in the present case would be manifestly excessive. 

The submissions of the respondent

29.  Mr Ira Lui, Senior Public Prosecutor, for the respondent, submitted that the sentence imposed by the judge was perfectly proper.  Mr Lui argued that the Court of First Instance’s decision of Lee Shek Tsui & Anor was of limited assistance to the court, firstly because it was only a decision of a trial court and was not binding on the Court of Appeal and secondly because its factual background was different from the present case.  In Lee Shek Tsui the premiseswereactually used for drug trafficking, as supposed to being used for the storage of dangerous drugs.  Furthermore, the facts of that case are distinguishable from the applicant’s case as in the Lee Shek Tsui case the drugs were only brought to the premises on the day of the offence and the defendant did not know of their presence until the trafficker produced them.  The culpability of the defendant in that case was a failure to direct the person in possession of the drugs to remove the drugs from the premises and that was less serious than the applicant’s deliberate decision to allow Chow to store the drugs in the flat for approximately two weeks. 

30.  Mr Lui argued that the culpability of the applicant was greater than the defendant in Ho Wing To but perhaps lower than the culpability of the defendant in Lee Kwok Keung.

31.  In a number of section 37 cases Mr Lui referred to the starting points adopted by the judges and compared them with the starting points that would have been employed for the same quantity of drugs if the defendant was being sentenced for trafficking in those drugs.  He reduced the difference to a percentage to show that there was no meaningful difference between what had been done in those other cases and what the judge did in the present case.

32.  Mr Lui concluded his submission by saying that there was no reasonable basis for suggesting that the judge’s starting point of 6½ years’ imprisonment was manifestly excessive.  To the contrary he said that the judge could be said to have been rather lenient to the applicant in not ordering a partially consecutive sentence for the charge of possession of a dangerous drug. 

Discussion

33.  The seminal case on this offence is R v Lee Kwok Keung where the Court of Appeal said:

“This offence carries a maximum of 15 years imprisonment. So, of course, it is not as serious as actual trafficking. It is an offence which varies greatly in its gravity and it is not an offence for which this Court could ever lay down any useful guidelines. Clearly, however, the extent of knowledge and involvement of an accused person together with the amount of financial benefit if any are important considerations.”

These observations were affirmed more recently by the Court of Appeal in HKSAR v Ho Wing To. 

34.  The first step must be to form a view as to the culpability of the applicant. There are many ways in which a section 37 offence may be committed.  Some may be linked to drug trafficking, others may only be linked to drug consumption as in the divan variant of the offence.  Here the applicant was charged with the storage version of the offence and that begs the question of storage for what purpose.  It could be storage for drug consumption or for any of the activities mentioned in section 37.  Storage can encompass a multitude of situations and purposes of varying levels of gravity.  Hence the need for the sentencing judge to carefully analyse the factual background to the offence so as to be able to form an accurate assessment of the offender’s culpability.  

35.  In the present case the reality was that Chow not only stored his drugs in the applicant’s room but he prepared them there for sale to his customers.  He measured, weighed and packaged the drugs in this room.  Once he had prepared the drug packets for sale he would take them out from the room to his customers.  The only aspect of his drug trafficking for which the room was not used was direct sale to his customers. 

36.  However, knowledge of all these matters cannot be attributed to the applicant.  What knowledge can be attributed to the applicant is that Chow was a drug trafficker who stored his drugs in the applicant’s room.  In my view it can also be inferred that the applicant must have known that Chow was taking drugs from his store to sell to customers.  After all, the applicant was one of Chow’s customers and had purchased from him for $1,000 the drugs that are the subject of count 2.

37.  From this knowledge the applicantmust have realized that the service he was providing Chow enabled him to carry out his drug trafficking activities.  Yet, knowing this, the applicant agreed to provide this service to Chow for two weeks.

38.  On any view the applicant’s culpability was of a high level.  He was knowingly assisting a drug trafficker conduct his trafficking activities for a period of two weeks.  That he may not have known the full extent of the use that Chow made of his room detracts little from his culpability.

39.  I accept that the applicant received no benefit for the favour he accorded Chow and that this constitutes a mitigating factor.  However, given the relationship between the applicant and Chow of customer and drug dealer, it cannot be said that the applicant was a wholly disinterested party.  Maintaining a favourable relationship with his drug supplier by providing this service to him made that person indebted to him and this could only be of benefit to the applicant. 

40.  I do not accept Mr Lee’s submission that the applicant’s actions were passive and that this in some way reduced his culpability.  Chow requested a favour of the applicant who could have refused the request.  Instead, he chose to agree to it.  That was deliberate and active conduct on his part. The fact that he responded to a request as opposed to initiating an offer does not lessen his culpability.

41.  Against this background of his knowledge of Chow and of Chow’s purpose in using his room the judge determined upon an appropriate sentence.  In doing so she had recourse to the trafficking tariff as a comparator or reference point.  This was what appears to have been done in R v Lee Kwok Keung where the applicant pleaded guilty to the variant of section 37 that is permitting premises of which he was a tenant to be used for trafficking in dangerous drugs.  The Court of Appeal compared the sentence being appealed against the sentencing tariff which was appropriate for trafficking in this quantity of drugs.  Mortimer JA, in giving the judgment of the court, said:

“... Taking into account all that this (sic) been urged upon us and noting that for an offence in trafficking in the quantity of ‘ice’ involved in this case the guidelines in the Attorney General v Ching Kwok-hung [1991]2 HKLR 125 would require a sentence after trial of some 14 years which after plea would be reduced to 9 years - the exact sentence that the judge took as his starting point - we consider that the judge’s approach in this case cannot be faulted. The sentence was neither wrong in principle nor was it manifestly excessive, heavy sentence though it is.”

42.  When used as a comparator or reference point to ensure that the starting point adopted for the section 37 offence is not unduly lenient or manifestly excessive, the drug trafficking tariff is clearly a helpful sentencing tool.  However, as the Court of Appeal has pointed out, the circumstances of this offence may vary greatly and that means that the use of the drug trafficking tariff, even for this limited purpose, may not always be appropriate. 

43.  That there is no single sentencing tool for judges dealing with a section 37 offence was brought out by the Court of Appeal when addressing a sentencing approach for this offence that was adopted by Line J in HKSAR v Suen Wing Lam[8]. Line J took the view that the culpability of the applicant before him was “about half as serious as if you had been trafficking in the Ice and I think that to be a reasonable approach in the circumstances of this case.”  He then went on to impose a sentence whose length was half of what it would have been if the offence had been one of trafficking in the drug.  The variant of the section 37 offence with which Line J was dealing was tenant permitting premises to be used for the storage of 25.58 grammes of Ice.

44.  In Suen Wing Lam the Court of Appeal dismissed the application for leave to appeal saying that the sentence imposed by the judge was not manifestly excessive.  Nor did the Court of Appeal disagree with Line J’s assessment of the culpability of the defendant before him, in the particular circumstances of that case.  But it was at pains to emphasise that it did not endorse, as a general guideline, that sentences for the section 37 offence should be 50% of the trafficking tariff.  It emphasised:

“This category of offence must be acutely sensitive to the facts of each case.”

45.  In assessing whether the applicant’s sentence is manifestly excessive, the first step is to have regard to the judge’s Reasons for Sentence to determine whether they reveal any misapprehension of the facts, any misdirection on the law or any misapplication of legal principle.  If no error by the judge is apparent, then the second step is to have regard to the sentence itself to see whether it is so outwith sentencing patterns or ranges that the appellate court is driven to the conclusion that it is excessive.

46.  There is nothing in the judge’s Reasons for Sentence which shows any misapprehension of the facts that would impugn her assessment of the applicant’s culpability.  The only legal question arising from her Reasons for Sentence is whether she erred in having regard to the trafficking sentencing tariff when assessing the appropriate starting point for the applicant’s sentence for the section 37 offence.

47.  In my view, using the trafficking tariff in the limited way I have referred to above is appropriate where the circumstances of the offence reveal that the section 37 conduct amounts to knowingly assisting a drug trafficker to carry out his drug trafficking activities.  That was the view taken by the judge of the effect of this applicant’s conduct and it was a view which, on the facts, was clearly open to her.  It flowed from a realistic view of the facts by the judge and an accurate assessment by her of the culpability of the applicant.  Consequently it does not seem to me that the judge’s use of the trafficking tariff as a comparator or reference point can be said to be erroneous in the circumstances of this applicant.  I can find no reasonably arguable case for saying that the judge misdirected herself on the law or misapplied any legal principle in her approach to sentence.

48.  I turn now to whether the length of the sentence itself would suggest any excessiveness in it.  In addressing this question, it must be borne in mind that once the circumstances of a particular case indicate that it is appropriate to employ the Ice trafficking tariff as a comparator or reference point then lengthy sentences will be likely. 

49.  Judging from the volume of case law on section 37, it would appear that the offence is not commonly employed.  But the cases do make clear that there is no general guideline for the sentencing of section 37 offences and the culpability of the offender will be always be fact sensitive and will fall to be determined by an analysis of the facts before the court.  In my view there is no obvious sentencing pattern or sentencing practice clearly discernible from the few authorities that exist in respect of this offence.  Thus, I cannot say that any excessiveness in this applicant’s sentence is obvious simply from its length.  

Conclusion

50.  For these reasons I refused the application.

51.  I informed the applicant of his right to renew it and also of the power vested in the Court of Appeal by section 83W(1) of the Criminal Procedure Ordinance to order loss of time.  

[1] The original indictment contained a single count of trafficking and the applicant pleaded not guilty to this count.  A voir dire was then held to determine the admissibility of statements made by the applicant to the police.  After all these statements were ruled inadmissible the prosecution filed the amended indictment.  At the end of the proceedings the prosecution agreed to file, at the request of the judge, a re-amended indictment containing the original count of trafficking in a dangerous drug, in respect of which it offered no evidence.   

[2] [2011] 4 HKLRD 465

[3] CACC 595/1996, unreported, 25 April 1997.

[4] CACC 56/2003, unreported, 6 August 2003.

[5] CACC 173/2005, unreported, 18 August 2005.

[6] HCCC 110/2013 and 152/2013, unreported, 16 January 2014 (M Poon J).

[7] HCCC 443/2014, unreported, 17 September 2015 (Yau J)

[8] CACC 49/2011, unreported, 21 October 2011.