HKSAR v. KONG TAT LUNG

CACC 27/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 27 OF 2016

(ON APPEAL FROM HCCC NO 379 OF 2015)

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J U D G M E N T

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Hon Yeung V-P (giving the judgment of the Court):

Introduction

1.  The applicant was indicted on one count of trafficking in 30.25 grams of the dangerous drug “ice”. The applicant pleaded not guilty. He was tried in the High Court before Deputy Judge S. T. Poon (“the judge”) and a jury.

2.  On 12 January 2016, the applicant was found guilty by the jury. He was sentenced to 8 years’ imprisonment on the same day by the judge.  The applicant felt aggrieved at his conviction and sentence. He was represented by counsel Mr Chan Siu-Ming in his application for leave to appeal against both conviction and sentence.

The prosecution case

3.  The applicant was arrested by a police constable on 18 March 2015 for the offences of trafficking in a dangerous drug and failure to produce a valid Hong Kong identity card outside Oi Man Plaza, Chung Hau Street in Kowloon. The applicant was sitting with his friend “Fei Fai” (or Fat Fai) in the rear seats of a taxi parked at the roadside and with the hazard lights turned on.

4.  The police constable searched and found on the applicant and the mobile phone box he carried 26.8 grams of the dangerous drug “ice”, as well as 0.22 grams and 3.25 grams of the dangerous drug “ice” respectively in the left front and right front pockets of his trousers. Other than the aforementioned drug, the applicant also had two mobile phones in his hands. There was an electronic scale and HK$107.10 in his right front trouser pocket. In his right rear pocket, there was yet another mobile phone. There were also several plastic bags on the applicant.

5.  Under caution, the applicant said to the police constable, “My identity card has been lost. The dangerous drug is for my own consumption. I do not intend to sell it to others. My friend doesn’t know that there is dangerous drug on me.” The applicant also told the police constable that originally he had lived with his family in Cheung Chau but later he had run away from home, and that at the material time, he was living temporarily under a flyover at the Yau Ma Tei Fruit Market. The police searched that location but found nothing. The applicant explained that the dangerous drug “ice” in the mobile phone box was bought from a “White Powder Boy” for HK$3,000, and that the dangerous drug “ice” in his left front trouser pocket was taken from his home for his own use at any moment. The applicant again said that all the dangerous drug was for his own use and had nothing to do with “Fei Fai”. The applicant said that of the three mobile phones he had on him, two belonged to him, and the third one belonged to his client and needed repair.

6.  At the material time, the dangerous drug “ice” had a street price of HK$396 per gram, making the street value of the ice involved in the present case HK$12,288.00.

7.  Expert evidence from the prosecution indicated that the daily dosage for abusers of the dangerous drug “ice” ranged from 0.1 to 2 grams. There were also other studies showing the daily dosage to be 0.1 to 0.6 grams. On the basis that the daily dosage was 0.3 gram, the dangerous drug “ice” involved in the present case would be enough for 100 days’ consumption by a single abuser.

The applicant’s case and evidence

8.  The applicant agreed that on the material day, he was in possession of the dangerous drug “ice” in question. He claimed that at the time of his arrest, a police constable searched and found in his shoulder bag an “ice bottle” for taking the dangerous drug “ice”, but the officer inadvertently dropped the bottle on the ground and smashed it. The above allegations made by the applicant were denied by the police constable.

9.  The defence alleged that after the applicant had been taken back to the police station by the constable, the constable said to the applicant’s mother over the phone, “There’s no need to get a lawyer. It would be a waste of money.” Or “It’s expensive. Getting a lawyer is no use.”  Things like that.

10.  The defence averred that the applicant did inform the police that he lived in Cheung Chau and he did not as alleged by the prosecution volunteer to the police the address that was under a flyover near the Yau Ma Tei Wholesale Fruit Market. The defence stressed that it was the police constable who said it was too burdensome to arrange a police launch to go to Cheung Chau, hence he told the applicant to report that he was living under a flyover near the Yau Ma Tei Wholesale Fruit Market. They even took the applicant there for a search, during which they did not find any illicit substance.

11.  The defence asserted that the applicant did explain during his interview with the police that he carried the electronic scale to weigh the drug he bought at the time of purchase so as to avoid being swindled. However, the police sergeant told him to say that that electronic scale had been damaged, that he was merely using a button that turned on a light on the scale in order to shine on the keyhole so he could see when opening the door. The defence indicated that the applicant was experiencing withdrawal symptoms during his interview. That was why his speech was faltering and not fluent. That was the explanation for certain unreasonable statements in the applicant’s Record of Interview.

12.  The applicant elected to give evidence. His version of what happened was that on the date of the offence, he left his home in Cheung Chau for Mongkok and then Sham Shui Po. He first went to Sincere Podium in Mongkok to get matching mobile phone parts, and then to Sham Shui Po to buy dangerous drugs. At the time, he had brought along with him the “ice” that was in his left trouser pocket and took the dangerous drug “ice” once on the ferry. He arrived at Mongkok to get matching mobile phone parts at 4:30 pm. Afterwards, he took the dangerous drug “ice” three times. The applicant continued to assert that he paid HK$3,000 for about one ounce, i.e. approximately 28 grams, of “ice” from a “White Powder Boy” at about 9:30 pm. He then proceeded to Mongkok again and there he bumped into a long-lost friend of his, “Fat Fai”. As a result, after he and “Fat Fai” took a taxi to Oi Man Estate to retrieve a telephone, it was his intention to take “Fat Fai” to Jordan and then he would cross the harbour in order to go back home on Cheung Chau. The applicant asserted that besides working in the fast food stall run by his parents on Cheung Chau and earning a monthly income of about HK$12,000.00, he also engaged in part-time work as a telephone repairman making an extra income of about HK$7,000-HK$8,000 a month.

13.  The applicant said that his wife had left him. He was living with his parents, younger sister and his 5-year-old son.

14.  The applicant revealed that he had been abusing drugs since adolescence and he began to take “ice” from 2011 onwards to reduce stress. He claimed that at the time he began to take drugs, the dosage was not much, but then the dosage he took became more and more. His daily dosage was between 1 gram and 1.8 gram.

15.  The applicant even said that during Chinese New Year in 2015, he suffered a personality change with abnormal behaviour owing to an overdose of “ice” and took out a Chinese cooking knife claiming that he was going to chop people. As a result, his mother reported the incident to the police.

16.  The applicant testified that he would not put dangerous drugs in his home because whenever his mother saw any dangerous drug, she would throw it all away. That was the reason why at the material time he was carrying the dangerous drug involved in this case with him. The applicant emphasized that all of the dangerous drug he carried with him on the day of the incident was for his own consumption.

17.  The applicant’s mother testified that the applicant was in the habit of taking dangerous drugs, and that the dosage he took was high. She even asserted that the applicant had suffered a personality change with abnormal behaviour owing to an overdose of “ice”. She reiterated that the applicant worked in the fast food stall started by her husband and her on Cheung Chau, and that the applicant earned a monthly income of about HK$12,000.00. The applicant’s mother also testified that the applicant’s wife had left him due to his drug addiction problem.

The trial judge’s direction to jury

18.  The trial judge did direct the jury on the questions of law in detail. He also recounted the evidence from both sides and their respective cases. He pointed out to the jury that they must consider all the evidence for the purpose of drawing an inference as to whether the applicant possessed the drug involved for the purpose of trafficking, that if they were not sure that the inference was the only reasonable inference, then they must find the applicant not guilty of trafficking in a dangerous drug and  could only find him guilty of possession of a dangerous drug. The judge made clear to the jury that:

“ . . . If some of these reasonable inferences are favourable to the defendant while some are unfavourable, then you should not adopt those conclusions that are unfavourable to the defendant. The reason is simple. It is because that is no longer the only reasonable inference. . . . ”

19.  Regarding the issue of whether the drug the applicant possessed was for his own consumption, the judge made clear to the jury that:

“ . . . If you believe the story of the defendant, then you must find him not guilty of trafficking in a dangerous drug, whereas if you do not believe the story of the defendant, then you still need to consider whether there is sufficient evidence to prove the purpose for the possession of the dangerous drug by the defendant was for the purpose of trafficking. In other words, the evidence adduced by the prosecution is sufficient to exclude the possibility that all the dangerous drug possessed by the defendant was only for his own consumption.”

. . .

“ . . . The burden of proof is on the prosecution to prove each and every element of the charge so that you are sure beyond all reasonable doubt that the defendant has committed the offence of trafficking in a dangerous drug as stated in the indictment. If you are sure, you should find the defendant guilty of the offence. If you are not sure, you should find the defendant not guilty.”

“The defendant does not have the burden to prove that he is innocent. Nor does he have the burden to call any witnesses. The defendant in the present case elected to give evidence. He was not different from any other witness. You ought to use the same standard to judge his evidence. However, even though you reject the whole of the evidence of the defendant, let me reiterate here, it does not mean that the defendant is guilty. And this is very important, it is because you must consider whether the evidence of the prosecution is sufficient so that you are sure that the defendant is guilty.”

. . .

“ . . . If you believe in the case of the defendant, that the dangerous drug he had in his possession was for his own consumption, or if you are of the view that his story could be true, then you should find him not guilty of trafficking in a dangerous drug. However, if you do not believe the story of the defendant, as I mentioned before, it does not mean that you can then find him guilty of possession of a dangerous drug for the purpose of trafficking. As I explained earlier, the burden of proof rests with the prosecution.”

“ You must consider all the evidence in order to make your own judgment whether the trafficking of a dangerous drug by the defendant is the only reasonable inference to be drawn on the evidence. If you are not sure that that is the only reasonable inference to be drawn on the evidence, then you should find the defendant not guilty of trafficking in a dangerous drug.”

20.  The trial judge also directed the jury on the possibility of the applicant telling lies while he gave his Record of Interview or testified in front of the jury:

“However, I want to remind you, members of the jury, that even if you come to the view that the defendant lied during his video-recorded interview or in his oral testimony, it does not mean that the defendant is guilty of trafficking in a dangerous drug. It is because there are many reasons for a person to lie while giving evidence in court or giving his statement. It is not necessarily for the purpose of covering up his crime. With regard to the present case, the other possibilities may include the scenario like the defendant did not want his family –– to be disturbed in a house search as a result of his arrest. That is also one of the possibilities. . . . ”

Grounds of appeal against conviction

21.  Mr Chan submitted that the trial judge erred in the following respects:

(1)  The judge’s directions were both inappropriate and inadequate, in particular :

(i)  The judge failed to properly direct the jury as to how to deal with the evidence adduced by the defence, including the evidence of the applicant’s mother.

(ii)  The judge ought not to have directed the jury that there was no difference between the way the jury dealt with the applicant’s evidence and the way they dealt with the evidence of any other witnesses, and that they ought to use the same standard to assess his evidence. Mr Chan stressed that the judge had not told the jury clearly how they should deal with inferences which were favourable to the defendant. Mr Chan relied on Jim Fai v HKSAR (2006) 9 HKCFAR 85.

(iii)  The judge failed to direct the jury on the question of “previous convictions” in accordance with the Specimen Directions in Jury Trials. The judge did not explain to the jury the reason why the applicant disclosed that he had previous convictions for “taking dangerous drug”, and that those previous convictions did not mean that his testimony was not credible or there was a greater propensity for the applicant to commit a criminal offence.

(iv)  The judge gave the jury a wrong direction on lies. The direction was also inadequate.

22.  Mr Chan submitted that following the trial judge’s direction that the same standard be used to assess the applicant’s evidence, the jury had to be sure that an inference was the only reasonable inference when they drew the inference in favour of the applicant. Such a direction, Mr Chan stressed, was wrong as well as unfair to the applicant. Mr Chan stressed that the judge had not properly directed the jury on how to deal with inferences favourable to the applicant. Mr Chan pointed out that the judge ought to have made clear to the jury that if the testimony of applicant’s mother was true or probably true, they ought to give the benefit of doubt to the applicant.

23.  Mr Chan in his submission stressed that the trial judge had not followed the Specimen Directions in that immediately after directing the jury on the burden and standard of proof, the judge did not make clear to the jury that if the testimony or story of the applicant was true or probably true, they ought to find the applicant not guilty. Nor did the judge distinctly tell the jury that if the testimony of the mother was probably true, they ought to give the benefit of doubt to the applicant and find him not guilty.

24.  Mr Chan submitted that counsel on both sides had made clear to the judge that a direction on lies to the jury was not necessary. Yet the judge still gave such a direction to the jury and the judge’s direction was not a full direction on lies. It was unfair to the applicant.

25.  Mr Chan was of the view that when the trial judge decided to give the jury a lies direction, he should have given them the full and formal directions on lies, including “You must decide whether the defendant did in fact tell (these) lies. If you are not sure he did, ignore the matter altogether. If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them”. Mr Chan submitted that the trial judge’s direction hinted that a part of the applicant’s story were lies, hence weakening the applicant’s defence.

Discussion

26.  This court needs to point out that when a judge is sitting with a jury in a criminal trial, the directions given by the judge to the jury are not cast in iron and thus inflexible. The judge must give the jury proper directions according to the circumstances of individual cases. However, the directions must be comprehensive and fair. And their comprehensiveness and fairness would depend upon the special circumstances of each individual case.

27.  The facts of the present case are extremely simple. It was not disputed that the applicant possessed the dangerous drug in question. The only dispute was whether he possessed it for his own consumption or for the purpose of trafficking. In order to strengthen his defence, the applicant on his own initiative admitted that he was in the habit of taking drugs and had a previous record for “taking drugs”. The prosecution did not raise the point that the applicant had a previous record for “taking drugs”. Nor did they follow up on the issue that the applicant had a previous record, still less attack his credibility on the basis that he was a drug addict.

28.  The applicant on his own initiative disclosed his habit of taking drugs and previous record for “taking drugs”. The reason for his doing so was apparent and does not need further elaboration here. It was not disputed that the applicant had a previous record for “taking drugs”. The only issue related to his having a previous record for “taking drugs” that the jury needed to deliberate was whether the applicant’s claim that the dangerous drug in question was for his own consumption was credible and whether that would create a doubt in the prosecution’s case against him. As regards that issue, the judge clearly pointed out to the jury many times if they believed the story of the applicant or thought that his story was probably true, then they must find the applicant not guilty of “trafficking in a dangerous drug” and only guilty of possession of a dangerous drug. The judge also emphasized in the presence of the jury the fact that the applicant was a drug addict did not make him more likely to be a drug trafficker.

29.  In general, when a defendant of previous good character chooses to give evidence in his own defence, the judge ought to point out to the jury that the fact that the defendant has a clear record strengthens the credibility of his testimony and indicates that his propensity to commit an offence is lower. In the present case, the applicant of his own initiative divulged to the jury that he was a drug addict, and had been sentenced to prison for taking dangerous drugs. The purpose for his so doing was to strengthen his own defence, i.e. the dangerous drug involved in the present case was for his own consumption. The disclosure by the applicant of his drug habit and prison sentence due to taking dangerous drugs ought not to have strengthened the credibility of his testimony.

30.  We have carefully considered HKSAR v Lam King Yin unreported CACC 162/2014. During cross-examination, the defendant in that case on three occasions revealed that he had criminal records and had served time in prison. He asserted that it did not mean that he was a bad person, much less indicate that he had committed the offence of “trafficking in a dangerous drug”. The trial judge, in his directions to the jury, said that when the defendant on his own initiative revealed his own previous convictions, the jury might take this as his being frank and displaying sincerity, or they might hold that against him. The judge directed the jury in clear terms that the former was permissible, but the latter was not.

31.  The defendant in that case contended that regarding his criminal record, the trial judge did not tell the jury clearly that they must not assume that the defendant was guilty or he did not tell the truth because he had a criminal record. The Court of Appeal did not accept such a ground of appeal, emphasising that the trial judge had said clearly to the jury the fact that the defendant had a criminal record was irrelevant to whether he was guilty or not.

32.  In the present case, the trial judge did say clearly to the jury that “using dangerous drugs by itself does not mean that the defendant is more likely to traffic in dangerous drugs”. The above direction to the jury by the judge was equivalent to telling the jury clearly that the matter of the defendant having a criminal record was irrelevant to whether he was guilty or not.

33.  In the context of the present case, this Court does not agree that in respect of the applicant’s disclosure on his own initiative of his previous convictions for “taking drugs”, the judge needed to further direct the jury on how such previous convictions affected the credibility of the applicant’s testimony as well as his propensity to commit a crime. Such further directions would only serve to strengthen the impression of the jury that the applicant had a drug habit. It would not only adversely affect the jury’s assessment of the credibility of the applicant’s testimony, which was disadvantageous to the applicant, but also would not assist the jury in dealing with the disputed matters in the present case.

34.  Mr Chan submitted that “using dangerous drugs” referred to by the judge was different from having a criminal record. He was of the view that the judge ought to have made clear to the jury that “the applicant’s criminal record does not mean that the defendant is more likely to traffic in dangerous drugs”.

35.  This Court does not agree with Mr Chan.

36.  During examination-in-chief in his own defence, the applicant indicated that he “got into trouble” twice because of dangerous drug, and as a result was sentenced to probation and Hei Ling Chau Drug Addiction Treatment Centre. The applicant did not disclose any other criminal convictions. There is absolutely no substantive distinction between the applicant telling the jury that he himself “had used dangerous drugs” and he had a criminal record for taking dangerous drugs. The judge told the jury clearly that the applicant’s use of dangerous drugs was irrelevant to whether he was guilty or not. In the context of the present case, such a direction was both reasonable and adequate. Moreover, it did not cause any disadvantage to the applicant.

37.  In the overwhelming majority of circumstances, even if the prosecution alleges that the defendant lied in his testimony, the trial judge does not need to give the jury “a lies direction”.

38.  In the present case, the main issue that the jury had to resolve was whether the applicant’s claim that the dangerous drug involved in the case was for self-consumption was true or not. The prosecution did not seek to strengthen its case by alleging that the applicant lied, and this was not a situation that the jury might misuse “lies”. This Court agrees that the trial judge did not need to give a “lies direction” to the jury: see HKSAR v Yuen Kwai Choi [2003] 6 HKCFAR 113. The trial judge only needed to give the jury the usual directions on the burden of proof and the standard of proof. And that was adequate.

39.  However, where the judge gave some unnecessary directions to the jury, it does not necessarily affect the safety and satisfactory nature of a conviction. The judge pointed out that the applicant had said during the video-recorded interview that he lived under a flyover, and that the electronic scale found on him during a body search was only used for illumination purposes. The judge told the jury clearly that however unreasonable those claims were, they could not affect the credibility of the applicant’s other evidence.

40.  The applicant’s position was that he had not offered the above explanation to the police regarding the electronic scale. It was the police sergeant who coached him to say that. The judge indicated to the jury that if they accepted that the answer in question was volunteered by the applicant, it might affect their overall assessment of the credibility of the applicant’s testimony. What the judge said was reasonable and did not hint that the applicant had lied.

41.  Nevertheless, the trial judge did tell the jury clearly that even if the applicant had indeed told lies during his video-recorded interview or when he was giving evidence in court, that would not strengthen the prosecution’s case against him. Nor would it mean that he had trafficked in a dangerous drug, either. The judge did explain to the jury that the applicant could possibly be not telling the truth for other innocent reasons.

42.  The trial judge’s approach did not create any unfairness to the applicant.

43.  The judge directed the jury to use the same approach to dealing with the evidence of the applicant and the evidence of other witnesses. This direction was only concerned with the credibility of their evidence and did not directly involve whether the applicant was guilty or not. (See the analysis in HKSAR v Chan Yu Shing and another,CACC 13/2008 in respect of the same topic.)

44.  The trial judge did emphasize to the jury that the burden of proof rested with the prosecution to prove all the elements of the charge, and that members of the jury must be sure “beyond reasonable doubt” that the applicant was guilty before they could convict him of the charge. The judge clearly stated that the applicant did not have the burden of proving his innocence, that the burden of proof rested with the prosecution all along, and that even if the jurors rejected the whole of the applicant’s evidence, they still needed to consider whether the evidence adduced by the prosecution was such that they were sure the applicant was guilty. The judge even went further to state to the jury clearly that if they thought that the applicant’s story was true or may be true, then they must find him not guilty of “trafficking in a dangerous drug”. The judge emphasized that if an adverse inference was to be drawn against the applicant, it must be the only reasonable inference to be drawn in the circumstances. And if both favourable and unfavourable inferences could be drawn, then the jury must not adopt a conclusion which was unfavourable to the applicant. The judge further directed the jury clearly that they must find the applicant not guilty if they could not be sure that the only reasonable inference to be drawn in the circumstances was that he “had trafficked in a dangerous drug”.

45.  If the directions by the judge to the jury are clear and precise, the order of the directions is not important. Mr Chan contended that immediately after the judge had directed the jury on the burden as well as the standard of proof, the judge ought to have told the jury clearly that “if the applicant’s evidence or story is true or may be true, they must find the applicant not guilty”. This submission has no basis in logic. Mr Chan contended that the judge should direct the jury at the same time that if the evidence of the applicant’s mother is true or may be true, the applicant should be given the benefit of the doubt. This submission is simply wrong.

46.  Mr Chan in his submissions said that “giving the applicant the benefit of the doubt” was not equivalent to “finding the applicant not guilty”. This argument is far-fetched and has no reasoned basis. With regard to the context, in every criminal trial, giving a defendant the benefit of the doubt is the same as finding that defendant not guilty. The applicant’s mother said that he had a serious drug addiction, a regular job and income. These matters were not directly related to whether the applicant had trafficked in a dangerous drug.

47.  The issue in the present case was whether the drug in question that was in the possession of the applicant was for the purpose of trafficking or for his own consumption. The applicant’s drug addiction did not mean that he would not traffic in a dangerous drug. In fact, most “drug traffickers” could possibly have serious drug addictions. If the evidence of the applicant’s mother was true, it could support the applicant’s story, pointing towards self-consumption of the drug found in his possession. Whether the evidence of the applicant’s mother was true, and if so, whether it could support his case and story, were matters for the jury. However, even if her evidence was accepted by the jury, i.e. the applicant had a serious drug addiction, a regular job and income, it did not show that the applicant did not possess the drug involved for the purpose of trafficking.

48.  There is no basis in Mr Chan’s submission that the judge should have directed the jury that if the evidence of the applicant’s mother might be true, they must “give the applicant the benefit of the doubt” or find him not guilty. We do not accept that.

49.  There may have been some minor imperfections in the judge’s directions to the jury that the applicant’s evidence ought to be dealt with in no different way as the evidence of other witnesses, leading to misunderstandings. However, the judge’s directions to the jury on the topics of the burden and standard of proof were adequate. The judge’s directions were not contrary to his directions on the burden and standard of proof, and they would not have rendered the applicant’s conviction unsafe and unsatisfactory either.

50.  This Court is of the view that the trial judge’s summing-up on the whole was adequate and fair. On the evidence in question, the jury was entitled to find the applicant guilty of possession of the dangerous drug in question for the purpose of trafficking. The inappropriate matters in the judge’s directions to the jury that Mr Chan had highlighted do not affect the safety and the satisfactory nature of the conviction.

51.  This Court grants the applicant leave to appeal against conviction, but dismisses the appeal and upholds the conviction.

Sentence

52.  The trial judge pointed out that the sentencing tariff laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 for trafficking of 10 to 70 grams of the dangerous drug “ice” is between 7 to 11 years’ imprisonment. The judge was of the view that the proper starting point for sentence in the present case involving 30.25 grams of the dangerous drug “ice” was 8 years and 4 months. However, the judge ruled that part of the “ice” was for the applicant’s own consumption and therefore adjusted the sentence of the applicant downwards by 4 months to one of 8 years’ imprisonment.

Grounds of appeal against sentence

53.  Mr Chan in his submission contended that the sentence was manifestly excessive, suggesting that the four-month reduction allowed on the basis that part of the dangerous drug was for self-consumption was inadequate. Mr Chan relied on HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116.

Discussion

54.  Having considered many relevant Hong Kong and foreign cases, the Court of Appeal in Chow Chun Sang held:

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point.”

55.  However, we must first point out that the trial judge in Chow Chun Sang accepted that over half of the dangerous drug “ice” involved in that case was for the defendant’s own consumption. In most of the cases considered by the Court of Appeal in Chow Chun Sang, including Secretary for Justice v Chan Chun Fat [2011] 3 HKLRD 116, R v Chung Kam Fai [1993] 1 HKCLR 178, HKSAR v Chow Kam Lung [2010] 4 HKLRD 253 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 etc, it was accepted by the courts that all or most of the dangerous drugs involved in these drug trafficking cases were for the defendant’s own consumption.

56.  The defendants in Chan Chun Fai, Chung Kam Fai, Chow Kam Lung above, were found guilty of “trafficking in a dangerous drug” for importing or exporting the dangerous drug. And it was accepted by the courts that all the dangerous drugs involved were entirely for the defendants’ own consumption. Two thirds of the drug involved in Cheuk Kin Man were for the defendant’s own consumption. The discount in sentence given to the defendants in the above cases on the basis of the dangerous drugs being for self-consumption was between 10% to 25%.

57.  When considering the Court of Appeal’s recommendation that when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount on sentence should fall somewhere between 10% and 25% of the basic starting point, the background of the case in question and the facts of the other cases cited in court must be clarified before the message conveyed by the above recommendation can be accurately grasped.

58.  The Court of Appeal did not indicate that in any trafficking case, where the defendant intends to use part of the dangerous drug, albeit a very minute part, for his own consumption, he should then obtain a 10% to 25% reduction of sentence. The recommendation made by the Court of Appeal only applies to circumstances where a prominent or very substantial part of the dangerous drug trafficked by the defendant is for his own consumption. We must reiterate that the gravity of the offence of “trafficking in a dangerous drug” will not be mitigated by the fact that the purpose of the trafficking is to make money to satisfy a drug addiction.

59.  The above view was established early in 2002 in the case of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69. The Court of Appeal in 79H-J of the judgment stated clearly:

“Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking.”

60.  The decision in Wong Suet Hau was affirmed by the Court of Appeal in HKSAR v Tam Ling Yuen (unreported CACC 159/2015).

61.  In the present case, it was the applicant’s case that all the dangerous drug was for his own consumption. The applicant’s case was markedly different from the prosecution’s case and apparently rejected by the jury.

62.  There was not a shred of acceptable evidence showing a substantial part of the dangerous drugs involved in the case was for the applicant’s own use. In the circumstances, it was indeed not necessary for the judge to grant a reduction in the sentence which ought to have been imposed on the applicant on the basis that part of the dangerous drugs was for the applicant’s own consumption.

63.  We have no objection to the defendants in drug trafficking cases being given reductions in sentence on the basis that part of the dangerous drugs is for their own consumption, if those defendants are drug addicts themselves, through the judge exercising his discretion. However, we need to reiterate that in the absence of clear evidence that a substantial part of the dangerous drug in question is for the defendant’s own consumption, the defendant cannot expect the court to give him a reduction of sentence in the region of 10% to 25% in accordance with the principle laid down in Chow Chun Sang. And defendants are not entitled to lodge an appeal on the ground that the court did not give him such a reduction.

64.  In the present case, the trial judge accepted that part of the dangerous drug involved was for the applicant’s own consumption and lowered the sentence by 4 months to one of 8 years. Although the reduction was only about 4% of the starting point, we decide not to interfere with that decision which was made by the judge in the exercise of his discretion.

65.  All in all, there was a sound and reasonable basis on the facts of the case for the sentence of 8 years’ imprisonment passed by the judge. It could not be said to be manifestly excessive. The applicant’s application for leave to appeal against sentence must be refused.

Postscripts

66.  After pleading guilty or being found guilty, the defendants in a great number of drug trafficking cases would ask for a reduction in sentence on the ground that part of the dangerous drug was for their own consumption. We think that it is necessary to give further guidance on how the court approaches that issue.

67.  Where the defendant uses the ground that part of the dangerous drug involved was for his own consumption to ask for a reduction in sentence, then he must tell the court clearly his position whether a substantial part of the dangerous drug in question was for his own consumption. If the defendant adopts such a position, then the court needs to deal with it in accordance with the principle laid down in Wong Suet Hau, and if it is necessary, the court may have to decide by way of a Newton hearing whether the defendant’s claim is made out.

68.  We need to reiterate that where the defendant’s claim leads to a Newton hearing by the court, then after the defendant’s claim has been rejected, the court is entitled to make appropriate adjustments according to the circumstances in individual cases to the discount in sentence the defendant will have for pleading guilty.

69.  Where the position of the defendant is that only part of the dangerous drug rather than a substantial part of the dangerous drug was for his own consumption, the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.

70.  We must emphasize that in the above circumstances, it is entirely in the judge’s discretion according to the circumstances of each individual case whether to give the defendant any reduction in sentence and the extent of that reduction on the basis that the defendant intended to use a small part of the dangerous drug for his own consumption. Under normal circumstances, it is not appropriate for the defendant to use that as a ground of appeal to ask for a further reduction from the Court of Appeal.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.