HKSAR v. YIU TZE MING

HCMA 1007/1999

HEADNOTE

Sentencers must take care to avoid giving the impression that, even though they are sentencing for simple possession, they do not fully accept that the drugs were for personal consumption. The sentencing judge in R v. Lee Siu-lung [1995] 2 HKCLR 247 having given that impression, the Court of Appeal felt obliged, in order to remove a justifiable sense of grievance on that Appellant's part, to reduce the sentence even if it could have been justified upon a proper application of the "latent risk" factor.

By contrast, what the Magistrate in the present case said shows that she was considering what might have happened in the future if the Appellant had not been caught. That properly goes merely to the latent risk which arises when a person has a large quantity of drugs for self consumption, namely the risk inherent to a large quantity of drugs that some of it will end up being used by others.

HCMA 1007/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1007 OF 1999

(On Appeal from KTCC 1861 of 1999)

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J U D G M E N T

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1. This appellant faced one charge of possession of dangerous drugs, contrary to s. 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. On 23 September 1999, he pleaded guilty before Ms J Livesey sitting at the Kwun Tong Magistracy and was sentenced to 18 months' imprisonment.

2. The appellant now appeals against sentence, complaining that it is too severe. In a statement attached to his Notice of Appeal against Sentence, he stated:

"This is because the other defendant(s) who appeared before Court 7 of Eastern Magistracy together with me on 23 September was (were) sentenced to 8 months' imprisonment for possessing a dangerous drug of 9 point something in purity. For me, the judge did not say that there would be a discount of one-third upon my guilty plea. Once counsel had put forward the mitigation on my behalf, the judge sentenced me to 18 months' imprisonment and then told me to go."

3. In her Reasons for Sentence, the Magistrate said this:

"In sentencing the Appellant I gave him credit for his plea of guilty. He has been before the court on 7 previous occasions of which 6 concerned drug offences, including for trafficking. The Appellant could therefore not claim any credit for a clear record although I reminded myself that he cannot be sentence for his previous record. I also carefully considered the DATC report, the nature and gravity of the offence, and all the matters put in mitigation. The Appellant pleaded guilty to possession of the drugs only, however the quantity involved was quite large for personal consumption, and in the circumstances I could not ignore the possibility that some of the drugs may end up being used by others. I considered that an immediate term of imprisonment was the only appropriate sentence, and that 18 months was the minimum sentence that should be imposed."

4. The Magistrate has said in terms that she gave the appellant credit for his plea of guilty. If one were to add one third to the 18-month sentence which the Magistrate passed, that would give two years and three months which would be within the appropriate range for simple possession of this quantity of heroin hydrochloride.

5. As for the Magistrate's statement that "the quantity involved was quite large for personal consumption" and that in the circumstances [she] could not ignore the possibility that some of the drugs may end up being used by others, the question is whether the Magistrate went beyond merely reasoning along the lines expressly approved by the Court of Appeal in R v. Chiu Hung-wong [1994] 1 HKCLR 184 pp 189-190.

6. What the Magistrate said in the present case is wholly different from what the sentencing judge said in R v. Lee Siu-lung [1995] 2 HKCLR 247, which was that he had "no doubt that ... some of the drugs" were for personal consumption. At page 248 Power VP said:

"Miss Hartstein, who appears for the Crown, asks us to take the view that the judge, when he said that he had "no doubt that ... some of the drugs" were for personal consumption, was doing so more than indicating the existence of a "latent risk" factor. We are not persuaded that we could properly take that view.

Whatever sentence might have resulted had the "latent risk" factor been properly applied we are satisfied that the applicant is, as matters stand, entitled to feel a justifiable sense of grievance."

7. This shows that sentencers must take care to avoid giving the impression that, even though they are sentencing for simple possession, they do not fully accept that the drugs were for personal consumption. The sentencing judge in R v. Lee Siu-lung having given that impression, the Court of Appeal felt obliged, in order to remove a justifiable sense of grievance on that appellant's part, to reduce the sentence even if it could have been justified upon a proper application of the "latent risk" factor.

8. To avoid giving the wrong impression, sentencers must choose their words with great care. This is well illustrated by comparing what the Magistrate in the present case said with what was said by the Magistrate in HKSAR v. Lam Kwok-hung, Magistracy Appeal No. 905 of 1999, 27 October 1999. The Magistrate there, passing sentence for simple possession of 8.44 gms of heroin hydrochloride, said:

"The drugs involved were quite substantial for personal use, and I could not ignore the fact that some of the drugs may have been used by others."

9. Now if drugs have been used by others they would be gone, and could not form part of the drugs the subject-matter of the charge. So the words used by the Magistrate in that case could only mean that the drugs the subject-matter of the charge had at one time formed part of a larger lot some of which had been used by others leaving the drugs the subject-matter of the charge as the remainder. Perhaps that is not what the author of those words really had in mind, but on the face of the words used that is their unavoidable meaning. It is therefore not surprising that Pang J reduced the sentence saying:

"The judge could rightly enhance the sentence by taking into effect of the latent risk factor, but it appears that the learned magistrate had fallen into error by suggesting that he was sentencing the appellant for trafficking in some of the drugs."

10. What the Magistrate in the present case said, which I have already quoted, shows that she was considering what might have happened in the future if the appellant had not been caught. That properly goes merely to the latent risk which arises when a person has a large quantity of drugs for self consumption, namely the risk inherent to a large quantity of drugs that some of it will end up being used by others.

11. In my judgment, the Magistrate in the present case passed an appropriate sentence for appropriate reasons. Accordingly, I dismiss this appeal against sentence.