HKSAR v. CHEUNG WAI MAN

CACC 258/2017

[2018] HKCA 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 258 OF 2017

(ON APPEAL FROM HCCC NO 173 OF 2017)

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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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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  Following his plea of guilty in the Magistrate’s Court on 22 May 2017 to a single count of trafficking in dangerous drugs, namely 16.10 grammes of a crystalline solid containing 15.80 grammes of methamphetamine hydrochloride (commonly known as Ice), 22.12 grammes of a mixture containing 17.48 grammes of heroin hydrochloride and 9 tablets and a tablet fragment containing 0.14 gramme of midazolam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the appellant was sentenced in the High Court on 7 August 2017 by Deputy High Court Judge Bruce (the judge) to 6 years and 10 months’ imprisonment.

2.  On 22 August 2017, the appellant filed a notice of application for leave to appeal his sentence.  He complained that his sentence was excessive.

3.  On 31 July 2018, leave was granted by a single judge to the appellant to appeal his sentence after it had been conceded by the respondent that it was reasonably arguable that the starting point adopted by the judge was too high in the circumstances of the case.  See HKSAR v Cheung Wai Man [2018] HKA 475.

4.  At the conclusion of the hearing, we allowed the appeal against sentence to the extent that the sentence be reduced from 6 years and 10 months’ imprisonment to 4 years and 8 months’ imprisonment.  We said that we would hand down our reasons in due course, which we now do.

The admitted facts

5.  The facts giving rise to the offence as admitted by the appellant when he entered his plea of guilty were as follows.  At about 21:51 hours on 29 August 2016, the appellant was intercepted by police officers on patrol when walking along Reclamation Street, Mong Kok, Kowloon.  Upon a search of the appellant’s shoulder bag, the police officers found an iron box, which contained the following items:

(i) aplastic bag with 3.13 grammes of a mixture containing 2.47 grammes of heroin hydrochloride;

(ii) apacket with 0.30 gramme of a mixture containing 0.16 gramme of heroin hydrochloride;

(iii) sixfoil packs with a total of 9 tablets and 1 tablet fragment containing a total of 0.14 gramme of midazolam; and

(iv) aplastic bag of 36 tablets containing zopiclone, a Part I poison.

6.  The police officers also found the following items tied with a string of plastic tape to the appellant’s left armpit and left shoulder:

(i) a plastic bag with 16.10 grammes of a crystalline solid containing 15.80 grammes of Ice;

(ii) a plastic bag with 17.10 grammes of a mixture containing 13.60 grammes of heroin hydrochloride; and

(iii) a plastic bag of 5 packets with a total of 1.59 grammes of a mixture containing 1.25 grammes of heroin hydrochloride.

7.  The total quantities of narcotic content of the dangerous drugs were 15.8 grammes of Ice, 17.48 grammes of heroin hydrochloride and 0.14 gramme of midazolam.

8.  Other items were seized from the appellant, including five mobile telephones and cash in the sum of $11,860. 

9.  The police officers arrested and cautioned the appellant, who said in response: “Sir, the dangerous drugs are for my own consumption.  Please give a chance.”  In a subsequent video recorded interview, he confirmed his admission at the scene and reiterated that the seized drugs were for his own consumption.

10.  The appellant, however, admitted and accepted that the seized drugs were in his possession for the purpose of unlawful trafficking. The estimated street value of the seized drugs was $24,953.

The mitigation

11.  The appellant was a 42‑year-old married man at the time of sentence. 

12.  Mr Bok Tin Yuen, counsel for the appellant at trial and on appeal, submitted that the appellant had been a heroin addict since he was 16 years of age.  This was evidenced by the fact that he had been admitted to a Drug Addiction Treatment Centre (DATC) in 1996 and 2010, and that while on remand in the present case, he tested positive for amphetamine. He further submitted that the appellant had worked in various jobs, the latest of which was as a used mobile telephone salesman earning about $20,000 per month, but this source of income was not enough to support his addiction to heroin and Ice, so he had to sell some of the drugs to others. 

13.  It was asserted by Mr Bok that the appellant intended to keep between a quarter and a third of the drugs for his own consumption.  He referred the judge to HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, where the Court of Appeal held that in relation to drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount of sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point. 

14.  He urged the judge to take the “combined approach” in determining the starting point for the multiple drugs involved and to discount it by 10% to 25% for self-consumption and one third for his guilty plea.

The reasons for sentence

15.  After setting out the background and mitigation of the appellant, the judge discussed his criminal record.  He noted that he had minor offences of theft and common assault in June 1997, which he ignored for the purposes of sentencing.  He also noted that he had offences in relation to drugs, consisting of possession of a dangerous drug, for which he was sentenced to DATC on 23 February 1996; two offences of trafficking in a dangerous drug, for which he received a total sentence of 3 years and 4 months’ imprisonment on 7 January 2004; possession of a dangerous drug, for which he was fined $2,000 on 14 November 2006; and possession of a dangerous drug, for which he was sentenced to DATC on 3 June 2010. 

16.  As there were more than one kind of dangerous drug trafficked by the appellant, the judge had to decide what approach he would employ in determining the sentence to be passed on him.  In this regard, he said:

“The authorities identified different approaches, and in my judgment, the differences may well be more apparent than real. The approaches identified in the authorities recognised that a sentence for each component of the collection of drugs in which the defendant was trafficking might, if they were simply added together, might produce a result which is unjust. ...

The essence of the appropriate approach is that if the drugs are approximately similar nature, then the approach known as the combined approach would be appropriate, and I cite HKSAR v Ko Ka Hing [2009] 4 HKLRD 826 para 3 in support of that proposition.  The Court of Appeal in that case, comprising Cheung JA and Tong J said there might necessary have to be adjustments, even if the combined approach is used, to avoid absurdity.  The concern to avoid absurdity and to do justice in the circumstances of the case was underlined in the decision of HKSAR v Chan Yuk Leong CACC 318/2013.”

17.  He noted that according to the guidelines for the individual drugs, the following starting points after trial were suggested: for 15.8 grammes of Ice, 7½ years’ imprisonment; for 17.48 grammes of heroin hydrochloride, 5½ years’ imprisonment; and for 0.14 grammes of midazolam, 1 month’s imprisonment.  We note that no issue has been taken with the individual starting points that the judge adopted for each drug.  However, on a strict arithmetic calculation, the starting point for 15.8 grammes of Ice, according to the guidelines, is 7 years and 4 months’ imprisonment. 

18.  He further noted that because of the quantity and potency of the midazolam involved, any sentence imposed in relation to it should be concurrent with the sentence for the other two drugs.  In other words, he considered that the quantity of midazolam was so small that any sentence imposed would have no bearing on the overall sentence to be passed in relation to the other two drugs.

19.  The judge then said he would adopt the “combined approach” for the Ice and heroin hydrochloride, but this appears to have been a misdescription on his part, because he took the “individual approach” by adding together the starting points for the quantities of Ice and heroin hydrochloride in question, that is 7½ years and 5½ years, to arrive at a total starting point of 13 years’ imprisonment.  He explained he took this approach because he was of the view that there was no practical difference between the two drugs in terms of their potency and saw no practical value in taking one drug or the other as the base sentence.  Referring to HKSAR v Chan Yuk Leong, CACC 318/2013, 8 April 2014, unreported, he then assessed whether adopting a total starting point of 13 years’ imprisonment would lead to an absurd or unjust result: 

“Would there be any absurdity or injustice in adopting a total starting point of 13 years for trafficking methamphetamine hydrochloride and heroin hydrochloride? The answer is that in my judgment, the answer is certainly not. However, it may be a more appropriate starting point is 12 years. That may be a fraction merciful, but that is no bad thing.”

The judge, therefore, in assessing the totality of the starting point made an adjustment downwards to arrive at a term of 12 years’ imprisonment which he considered was appropriate. 

20.  On the issue that some of the drugs were for the appellant’s own consumption, the judge said that he was in no doubt that the appellant was addicted to both heroin and Ice and therefore accepted that “some” of the drugs in his possession at the time of the offence were for self-consumption.  He noted in oral submissions on this issue that he particularly took into account “where he was found, what he was carrying, the way it was packaged and arranged”.  He further noted that the drugs were in two separate lots, suggesting that one lot was for the appellant’s personal use.  He explained in his reasons for sentence that it was difficult to make an assessment as to what proportion of the drugs would be for self-consumption, except to say that “a substantial majority” of the drugs were for trafficking and that the quantity of the drugs for self-consumption was “itself substantial”.  On this basis, and without hearing evidence from the appellant, he granted the appellant a 15% discount from the starting point. 

21.  In the premises, the judge reduced the starting point of 144 months’ imprisonment (12 years’ imprisonment) by 15% to 122.4 months’ imprisonment which he further reduced by one third to 82 months’ imprisonment (6 years and 10 months’ imprisonment). 

The basis of the appeal

22.  Mr Bok complained that the starting point of 12 years’ imprisonment and the resultant sentence of 6 years and 10 months’ imprisonment imposed by the judge were too high.

23.  He submitted that even though the judge said he adopted the “combined approach”, he instead adopted the “individual approach” by adding the starting points of the two drugs. 

24.  He contended that the preferred approach was the “combined approach” but it was not correctly applied by the judge.  He referred to HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, in which the Court of Appeal held that where the two types of dangerous drugs are not dissimilar, the “combined approach” would be preferred to the “individual approach”, which is more suited when the two drugs are disparate in quantity and potency.

25.  He submitted that as the two drugs are of similar potency, an appropriate range of the starting point can be determined by adding the quantities of the two drugs together and applying the total quantity to the guidelines for each drug.  The total quantity of drugs is 33.28 grammes which when applied to the guidelines for Ice would result in a starting point in the region of 8½ to 9 years, and for heroin in a starting point in the region of 8 years. 

26.  Mr Andy Lo, for the respondent, conceded that the judge has erred in sentencing the appellant.  He contended that the judge did not correctly apply the “combined approach” but rather adopted the “individual approach” which resulted in a starting point that was too high.

27.  He submitted that when correctly adopting the “combined approach”, the relevant guidelines for Ice should be used as the base sentence because it was the more potent drug seized.  He noted that the starting point for trafficking in 15.8 grammes of Ice is 7.4 years’ imprisonment which should be adjusted upwards to take into account the significant quantity of the other drug, namely 17.48 grammes of heroin. 

28.  He contended that there should be further enhancement of the starting point, since the appellant had trafficked in three different types of dangerous drugs.  He referred to HKSAR v Yim Hung Lui Ricky, CACC 266/2011, 13 February 2012, unreported, where the Court of Appeal said at paragraph 11:

“As pointed out by this Court the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”

29.  He also contended that the starting point could have been further enhanced because of the appellant’s previous conviction for trafficking in 2004.

30.  He referred to Ko Ka Hing where the Court of Appeal explained that the appropriate approach to be adopted was a matter of discretion for the sentencing court, bearing in mind the circumstances of the particular case and the totality of the overall starting point.  In checking whether the overall starting point was manifestly excessive, he applied the three tests as set out in HKSAR v Chan Yuk Leong, CACC 318/2013, 8 April 2014, unreported, namely, the absurdity test, the conversion test, and the ratio test. 

31.  As for the absurdity test, this involves the sentencing court comparing the proposed sentence with a sentence where it is assumed that the total quantity of drugs seized contained only the most serious (that is, the most potent) drug.  Here the starting point of the total quantity of the two drugs of 33.28 grammes, when sentenced according to the guidelines for Ice, being the more potent drug of the two, would be 8 years and 7 months’ imprisonment.

32.  As for the conversion test, this involves the sentencing court comparing the guidelines applicable to the different drugs to arrive at the conversion rate, so that the single guidelines for one drug could then be applied to the entire quantity of drugs seized.  Here Ice is used as the base substance for the calculation.  The quantity of 17.4 grammes of heroin would attract a starting point of 5.6 years according to the guidelines for heroin, and the same starting point according to the guidelines for Ice would correspond to 6.5 grammes of Ice.  By adding the converted quantity of 6.5 grammes to the 15.8 grammes of Ice seized, the total quantity of 22.3 grammes would, according to the guidelines for Ice, attract a sentence of 7 years and 10 months’ imprisonment.

33.  As for the ratio test, this involves the sentencing court calculating the weight ratio of each drug (the weight of each drug over the total drugs) which is then applied to the guidelines of the relevant drug for the total drugs.  Here the ratio of the Ice is 0.48 (15.8/33.28) and of the heroin is 0.52 (17.48/33.28).  On the total quantity of 33.28 grammes, the starting point according to the guidelines for Ice is 8.6 years which when multiplied by the ratio of 0.48 is 4.13 years, and the starting point according to the guidelines for heroin is 6.7 years which when multiplied by the ratio of 0.52 is 3.48 years, resulting in a total starting point of 7.61 years’ or 7 years and 7 months’ imprisonment.

34.  He made the point that all three tests would result in a starting point that is far below the 12 years as determined by the judge.  He properly conceded that the starting point imposed by the judge was manifestly excessive in the circumstances of the case.

35.  On the other hand, he submitted that the 15% discount for the appellant’s own consumption of some of the drugs was far too generous in the circumstances.  The appellant was unable to provide a precise percentage of the portion of the drugs that he intended to consume himself.  He referred to the remarks of Macrae JA (as he then was) in HKSAR v Yeung Shek Yung, CACC 314/2016, 3 July 2017, unreported, at paragraph 18, that in a case where a large and valuable quantity of dangerous drugs is involved, it is very unlikely that a defendant would be able to persuade a court that a “significant proportion” of them were for his own consumption because as a matter of common sense, the larger the quantity, the less likely it is that a claim of own consumption could reach the threshold of a “significant proportion” of the whole.  We would point out that the total quantity of drugs of 33.28 grammes, although not insignificant, was not relatively high.

36.  He also referred to Chow Chun Sang by way of comparison to the present case, in which the Court of Appeal upheld a discount of 10% to the appellant’s sentence, which they commented was on the conservative side, where the trial judge had accepted that over half of the Ice seized was for his own consumption.  He argued, therefore, that a discount of 15% is overly generous when it is claimed that between a quarter and a third of the drugs seized were for self-consumption.

The sentence on appeal

37.  In the following discussion, we have concluded that the judge erred in sentencing the appellant.  This means that we will have to sentence the appellant afresh, applying the relevant sentencing guidelines and principles, which we will do in the course of the discussion.

The issue of the starting point

38.  As correctly noted by the judge, the very small quantity of midazolam would have had negligible effect on the overall sentence on the appellant because of the nature and quantities of the other two drugs, namely heroin and Ice.  We note that these two drugs are of similar potency, although Ice is regarded as being more potent, and have similar guidelines for the quantity of narcotic content involved. 

39.  A court may take one of two approaches when sentencing an offender for having trafficked in a cocktail or batch of dangerous drugs.  One is the “individual approach” where the court applies the guidelines relevant to each drug and adds up to the sentence.  Sometimes some adjustment may be necessary to ensure that the sentence is just and balanced. The other is the “combined approach” where the applicable sentence for the more or most serious drug (in terms of potency) is first calculated, and then adjusted upwards to take into account significant quantities of the other (less serious) drugs.  This is all set out in the judgment of Ma CJHC (as the Chief Justice then was) in HKSAR v Yip Wai Yin and Anor [2004] 3 HKC 367, at paragraph 9, where he concluded that whichever approach is appropriate will depend on the circumstances of the case but that “the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and in a common sense manner”. 

40.  In the present case, the “individual approach” would result in a starting point of 12 years and 10 months’ imprisonment (7 years and 4 months for 15.8 grammes of Ice + 5 years and 8 months for 17.48 grammes of heroin), which according to the sentencing guidelines is very high and would need to be adjusted downwards.  This was the approach taken by the judge.  The “combined approach” would involve applying the guidelines for Ice, being the more serious drug in terms of potency.  The starting point for trafficking in 15.8 grammes of Ice is 7 years and 4 months’ imprisonment which should be adjusted upwards to take into account the 17.48 grammes of heroin. 

41.  We have decided that the justice of the case is best served by adopting the “combined approach”.  We would adjust upwards the starting point of 7 years and 4 months’ imprisonment to 7 years 9 months’ imprisonment, taking into account the quantity of heroin and that there were three batches of drugs in this trafficking offence (the small quantity of midazolam was not taken into account because of the negligible effect it would have on the overall sentence).

42.  We have checked the starting point of 7 years and 9 months’ imprisonment against the results of the absurdity test, the conversion test and the ratio test, and we are satisfied that it is fair and appropriate.  As there were two similar drugs of relatively small quantities involved, we found that a useful measure of the appropriateness of the starting point was to add the quantities of the drugs and calculate the starting point according to their respective guidelines.  The total narcotic content of both quantities of the drugs is 33.28 grammes.  When applying the guidelines for Ice, the starting point is 8 years and 6 months, and when applying the guidelines for heroin, the starting point is 6 years and 9 months.  The difference between the two arises because the guidelines for Ice is slightly higher for smaller quantities even though for medium and larger quantities the guidelines for the two drugs are the same. 

43.  What has to be appreciated is that each of the guidelines for the relevant drugs has a base level built into the commencing starting points and that is why the “individual approach” may be unfair when sentencing a defendant for trafficking in multiple drugs.  With respect to the judge, while he reasoned and explained why he considered the “individual approach” appropriate when sentencing the appellant, it seems that he failed to consider the base level built into the commencing starting points of each of the guidelines, and hence why the final starting point and resultant sentence were too high.

44.  Of course, in addition there may be aggravating factors to be taken into account, such as, the wide variety or special combination of drugs involved, the circumstances of the discovery of the drugs, the defendant being a persistent offender, the defendant being a Form 8 recognizance holder, or the presence of an international element, that may warrant an enhancement of the starting point calculated by using the “individual approach” or the “combined approach”.  Equally, there may be mitigating factors that may warrant a reduction of the final starting point.

45.  There is the issue of the appellant’s criminal record for two prior convictions for trafficking in a dangerous drug which occurred on the same occasion in 2004, for which he was sentenced in the District Court to a total sentence of 3 years and 4 months’ imprisonment.  It was clearly a serious matter.  There is no magical figure as to the number of prior convictions for a defendant to be characterised as a persistent offender.  It may, for instance, be satisfied where the defendant has one prior conviction of a very serious offence or of an offence that has occurred close in time to the repeated offence.  The judge did not regard the prior conviction as an aggravating factor requiring a sentence containing an additional element of deterrence.  It appears that he took into account the level of seriousness of the offending of the prior conviction and the time that it occurred back in 2004 as well as the appellant’s history of drug addiction.  We consider that in the circumstances of the case no further enhancement is warranted.

46.  This case highlights the importance for a sentencing court to carefully consider which of the two methods, the “individual approach” or the “combined approach”, will result in the most appropriate sentence on an offender for trafficking in a cocktail or batch of dangerous drugs.  It is not an easy exercise, but as a general rule where the types of dangerous drugs are similar in potency the “combined approach” would be preferred, whereas the “individual approach” may be better suited for cases where the types of drugs are disparate in quantity and potency.  It will require considering the two approaches and deciding which is the most appropriate one that will result in a sentence that is fair in all the circumstances and serves the justice of the case.

The issue of self-consumption

47.  It was submitted that some of the drugs were for the appellant’s own consumption. 

48.  It should be noted that the issue of self-consumption usually arises when a defendant, having been convicted of trafficking in a dangerous drug, claims that some or all of the drugs were intended for his own consumption.  The task of a sentencing court in addressing this issue is made all the more complicated when it is not possible to readily discern the quantity of drugs claimed to be for self-consumption.  In such circumstances, the guiding principles for a sentencing court have been set out in this Court’s decisions of HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 at paragraph 34; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, paragraph 19; and HKSAR v Tsoi Man Chun, CACC 414/2015, 27 March 2017, unreported, at paragraph 53 to 59.  See also HKSAR v Kong Tat Lung [2017] 6 HKC 448.

49.  In determining the issue of self-consumption, the sentencing court must first find that a “significant proportion” of the drugs were to be consumed by the defendant.  If he does not meet this threshold, he is not entitled to the discount suggested in Chow Chun Sang. If he does meet it, the sentencing court must then assess the amount of discount that it should award to him from the adopted starting point.  Whilst it may not be possible for the sentencing court to specify the relative amounts or proportions of the drugs for self-consumption, it must have at least a broad range in mind, based on credible and reliable information and material. 

50.  We should point out that a sentencing court, in any event, has a discretion to discount a sentence to reflect an element of self-consumption. See HKSAR v Liu Ming Sze [2017] 1 HKLRD 297.

51.  The factors to be considered by a sentencing court in establishing a claim for self-consumption as suggested in Wong Suet Hau, include:

“(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict, or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.”

52.  It needs to be borne in mind that possession of the drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drugs will be accessed by or distributed to others.  The application of these two considerations, as emphasised in Wong Suet Hau at paragraph 34(4) “may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice.” 

53.  In Chow Chun Sang at paragraph 19, this Court held that “… 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.”  See also Kong Tat Lung, at paragraph 58. 

54.  We would stress that it is fundamental that a claim of self-consumption needs to be established to the sentencing court’s satisfaction.  There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption.  Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice.  The prosecution also has an important role to play in assisting the court in resolving such a claim.  If the prosecution has information and material that addresses the claim one way or the other, they should ensure that the court is appropriately informed of it.  It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form. See HKSAR v Chong Chee Meng [2008] 6 HKC 407, paragraphs 19 to 50.

55.  We note that the appellant admitted at the time he pleaded guilty that the drugs were in his possession for trafficking, but his previous assertions when he was arrested and interviewed were that all the drugs were for his self-consumption.  In mitigation, his position changed and it was submitted that a quarter to a third of the drugs was for his own consumption, but no evidence was submitted to substantiate this claim.  It was also submitted that he sold drugs to sustain his drug addiction.

56.  We note that the judge accepted that the appellant had a drug addiction for Ice and heroin and that some of the drugs were intended for his own consumption.  Even though no evidence was presented as to the proportion of the drugs for the appellant’s self-consumption, he nevertheless concluded that it was substantial.  He obviously took into account the fact that the total quantity of drugs was relatively small, namely 33.28 grammes, so an allowance that some of these drugs were for the appellant’s own consumption would mean that a “significant proportion” was for this purpose. 

57.  We accept that the appellant had a drug addiction to Ice and heroin and some of the drugs were for his own consumption.  However, there is no evidence, nor any credible or reliable information or material, that substantiated that a quarter to a third of the drugs were for his own consumption.  The fact is that he was apprehended in a public street with a very small quantity of drugs in an iron box that he carried in his shoulder bag and a much larger quantity of drugs that he had concealed under his armpit together with 5 mobile telephones and $11,860 cash. Further, he admitted in mitigation that he sold drugs to pay for his drug addiction. 

58.  Mr Lo referred to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, at paragraph 27, where it states that the average daily consumption of a regular user of Ice is in the range of 0.1 to 0.5 grammes and of heroin in the range of 0.25 to 0.7 grammes.  In order to dispel the suggestion that a third of the drugs were for the appellant’s own consumption, he calculated the number of days, which were many, that the appellant would be sustained by a third of the drugs in question.

59.  Whilst a “significant proportion” of the drugs were for the appellant’s own consumption, we do not consider it was as high as suggested by the appellant, in light of his admission that he trafficked in drugs to sustain his drug habit and the circumstances in which the drugs were found on him.  We are therefore of the view that a 10% reduction should be given for the appellant’s consumption of some of the drugs.

60.  We would add, that as there is a range of discount between 10% and 25% for self-consumption, a sentencing court needs to be satisfied that the proportion of the drugs to be consumed by the defendant is of a level of significance that is commensurate with a percentage within the range.  In simple terms, the greater the proportion, the greater the percentage within the range, but this needs to be based on credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption.

Conclusion

61.  Accordingly, we adopted a starting point of 7 years and 9 months’ imprisonment which we reduced by 10%, for self-consumption, to 7 years’ imprisonment, which we then further reduced by one third for the appellant’s guilty plea, to 4 years and 8 months’ imprisonment. 

62.  It follows from what we have said that we allowed the appeal.  We set aside the judge’s sentence, and in substitution for it we imposed a sentence of 4 years and 8 months’ imprisonment.