HKSAR v. CHAN YAT SING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.777
(Criminal)

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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. The applicant in this matter faced one charge of trafficking in dangerous drugs. The charge alleged that he, at Kwong Yee House, Kwong Fuk Estate, Tai Po, unlawfully trafficked in 97.37 grammes of a crystalline solid containing 95.36 grammes of methamphetamine hydrochloride. He was found guilty after trial before a jury of simple possession and was sentenced by Beeson J. to imprisonment for five years.

2. The facts are unusual. The applicant sought police assistance reporting that his brother had been kidnapped. In fact this was not so at all. When the police came to his premises, they asked him whether he was a drug taker and he admitted taking 'ice' and, upon a search of the premises, a small quantity of ice was found. He was then taken back to the police station where he admitted having had a larger quantity of ice and another search was then undertaken and the quantity, the subject of the charge, was found in the toilet cistern at his home.

3. Clearly the jury were not satisfied that possession for the purpose of trafficking had been established. They unanimously rejected that charge but were unanimous in finding that he was guilty of simple possession. This was not surprising as he was prepared at all times to plead to that charge.

4. The trial judge said when sentencing:

"I have considered carefully whether or not I should commit the defendant to a Training Centre programme. I considered, in view of his attitude while on probation, and in view of his working history as well as because of his propensity to take drugs that the Training Centre programme is not appropriate, however I am reluctant to follow too closely the guidelines for methamphetamine hydrochloride which for trafficking in this quantity would be between 10 and 14 years.

Accordingly I consider that a sentence of five years would be appropriate in this case and I impose that sentence ....."

5. When then went on to say she took into account that

"he will be treated as a youthful offender within the Prison system, and be given the opportunity of education and training while he is there. He will, of course, be entitled to the usual remission of sentence for behaviour whilst in prison."

6. We are not sure exactly what was meant by that last remark. It may have been that she was indicating that the time of incarceration would be about the same time as the time in which he would have been detained in training centre. However that may be, it is not that part of the judgment which concerns us. The judge expressed reluctance to follow the guidelines applicable to trafficking charges. This reluctance is understandable. In fact she could properly have ignored those guidelines. The sentencing problem when a person who has had possession of a large quantity of drugs is found guilty of simple possession only is not an easy one. We are satisfied that the trial judge, starting as she did with the sentence for trafficking and then adjusting that sentence down was wrong in her approach to sentencing. The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession. This would be a year to 18 months. That sentence then has to be enhanced because of the latent risk factor. In this case that factor was one of very considerable weight. The applicant was formerly a heroin user. He then switched to ice. He lived on the fringe of the criminal underworld selling pirated compact disks. Giving full weight to the jury's verdict and taking into account all of the matters which we have outlined above, in particular the very real danger of dissemination of the drugs, we are satisfied a sentence of 31/2 years would be appropriate and the sentence is therefore, varied from one of five years to one of 3 1/2 years.