HKSAR v. CHAN SAU-PANG

CACC 366/2000 &

CACC 487/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 366 OF 2000

(ON APPEAL FROM HCCC 410 OF 1999)

and CRIMINAL APPEAL NO. 487 OF 2000

(ON APPEAL FROM HCCC 254 OF 2000)

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CACC 366/2000

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. The two sentence appeals presently before us (CACC 366/2000 and CACC 487/2000), which follow pleas of guilty to trafficking in dangerous drugs, have been consolidated in order to deal with a point which is common to them both. In short, these appeals are principally concerned with whether, if accepted, mitigation that the trafficker had part of the drugs included in the trafficking charge for self-consumption should reduce the sentence from the level which would have been imposed where all the drugs in a trafficker's possession were for the purposes of trafficking.

2. A second issue, which only arises out of the facts in the second appeal, CACC 487/2000, is concerned with whether "social trafficking", where one person gives or intends to give some of his drugs to someone else in a non-commercial transaction, should be regarded for the purposes of sentence as less serious than commercial trafficking.

3. Before we deal with the principles to be applied, we propose to set out the background circumstances which have brought each of the Appellants before the court.

CACC 366/2000

4. Leave to appeal against her five-year sentence was granted to Wong Suet-hau, Ice, the Appellant (A1) in CACC 366/2000 on 16 January 2001. She pleaded guilty in the Court of First Instance on 31 August 2000, when aged 22, before Deputy Judge Tong (as he then was) to a count of trafficking in a crystalline solid containing just over 68 grammes of methamphetamine hydrochloride (ice). Expert evidence was before the court that the consumption rate of ice is about 0.8 grammes for a smoking session and that its effect may last from two to twenty-four hours. Oddly enough, it appears that there was no expert valuation of the drugs.

5. The facts were straightforward. On 8 September 1999, police were conducting an observation outside premises in Shanghai Street, Mongkok, when A1 was observed to throw a number of items out of her window on the fifth floor. This coincided with other police officers, who were inside the premises, making clear their intention to gain access to her room by shouting to her to open the door. Eventually, a forced entry was made and A1 was arrested. She asked to be given a chance.

6. When A1's room was searched, eight small plastic bags containing ice were found together with a quantity of empty resealable bags and an electronic weighing scale bearing traces of ice. There were, in addition, a number of items related to the consumption of ice including a bottle which had two glass straws inserted into the liquid inside it, some metal foil which bore traces of ice, three rolls of tinfoil and two lighters. There were also traces of ice found on a cotton swab which had been used on A1's right hand to collect "contact" evidence.

7. The items A1 had thrown out of the window included a cigarette box which contained a quantity of ice inside a small plastic bag, and a wad of empty resealable plastic bags.

8. In an interview later, A1, who had no previous convictions and described herself as unemployed, claimed that by buying 3 ounces at a time, she could purchase ice more cheaply. She said that on the day before her arrest she had bought the ice which police had found for $7,000. This was the cost, or so she alleged, of 3 ounces of ice. A1 said that this purchase was made from an unknown supplier who she had never previously used. She admitted responsibility for all the drugs as well as the paraphernalia found in her flat. She added that she would sell some of the ice to her friends "on credit" or give them a "treat".

9. The flat, where A1 had lived alone since 1 September 1999, was rented in July 1999 from the landlord by a "friend" called Sai Man. When he was unable to pay the monthly rent of $2,700, A1 took over the lease and paid the rent to the landlord.

10. In mitigation in the court below, Mr McGuinniety, who continues to represent A1, stated that:

"She was not .... the main mover in any drug trafficking syndicate ....... A nightclub girl addicted to drugs buy(ing) more than she needs and selling it to friends to feed her own addiction."

11. In passing sentence, the judge took into account the fact that A1 would not merely have supplied ice to others but would have consumed some of the drugs herself. However, he adhered to the guideline tariff for trafficking in ice and made no reduction for this element in the mitigation when taking a ten-year starting point. The judge then gave the usual discount for a plea of guilty, reducing the sentence to six years and eight months. Although the judge went on to give a further discount of twenty months because of the "special circumstances on the papers which justified a more lenient view to be taken of the case", this remark was a reference to mitigation which had no bearing on the issue with which this court is now concerned.

12. When the leave of the single judge was given, Stock JA said:

"... the question arises whether the court below assessed, albeit roughly, whether the bulk was for her own consumption, as appears to be asserted, or for sale, whether it should have done so and whether this makes a difference to sentence."

Whether A1 was entitled to have received a reduced sentence on the basis that some of the drugs were intended for self-consumption is a matter to which we shall return in due course.

CACC 487/2000

13. On 26 October 2000, when Chan Sau-pang (A2), the Appellant in CACC 487/2000, appeared in the Court of First Instance before Deputy Judge Toh, he confirmed the plea of guilty to a charge of trafficking in a crystalline solid containing just over 14 grammes of methamphetamine hydrochloride (ice), which he had earlier entered in the Magistrates' Court. Having adjourned sentence to 9 November 2000 for a background probation report to be prepared, A2, who was then twenty years old, was sentenced to four years and eight months' imprisonment. The matter now comes before this court as an appeal against sentence, leave to appeal having been granted by the single judge on 12 April 2001.

14. Once again, the facts were straightforward. On 27 May 2000, police officers were conducting an anti-narcotics operation outside a flat on the 4th floor of No. 19 Hong King Street in Yuen Long. At around 10.22 p.m., A2 was intercepted as he was walking up the staircase. He claimed that he had just returned home from work. He was then taken to his flat where he knocked on the door. When A2's mother opened it, she was shown a search warrant. There then followed a search of A2's bedroom.

15. Inside a writing desk, a red metal box was found. This contained a number of items which police suspected contained dangerous drugs. In addition, there were four packets of cigarette paper, one cigarette rolling machine, one bag containing thirty-one drinking straws, 320 empty plastic bags and eleven rolled pieces of tinfoil. Elsewhere in A2's room, police seized a plastic bottle containing some transparent liquid with two straws inserted into it.

16. A2 told the police that the suspected drugs, which in due course were examined and found to be ice, belonged to him. He said that he had bought the ice for his own consumption and that it had nothing to do with other members of his family.

17. On the following day, A2 was interviewed in greater detail. He repeated that the ice belonged to him. He said that he had bought it in bulk from a male named "Ah Chung" for $1,400 on 26 May 2000. He claimed that he had done so because it was cheaper to purchase that way. The drugs, he stated, were for his own consumption but sometimes he would give some to his friends for consumption elsewhere. He admitted that the eleven strips of tinfoil, the plastic bottle with two straws inserted into it and the thirty-one straws were used for inhaling ice. Importantly, he added that he would use some of the empty transparent plastic bags to package the ice for easier carriage when supplying to his friends.

18. The retail value of the ice was estimated by an expert to be HK$4,900.

19. A2 had a previous record consisting of two seemingly minor offences of an altogether different nature to the charge he faced in these proceedings. The judge referred to the absence of any drug-related offences in A2's past when passing sentence but she indicated that the large quantity of ice called for a deterrent sentence. The judge had the advantage of a probation report which revealed a number of relevant matters about A2's background. It seems that at the time of the offence he had been helping his mother with her barbecue stall at night. He had no formal employment. He was a frequent user of billiard and video game centres and karaoke establishments. A2 was described as having acquired his drug-taking habit from the wayward life-pattern he was leading.

20. The judge took a seven-year starting point, and reduced this by the usual one third to take into account the plea. Counsel who appeared in the court below had invited the judge to take this course stating that A2 "was now very much remorseful for his misdeeds".

21. When granting leave to appeal, the single judge referred to the sentencing remarks of the judge in the court below, noting that she had made reference to A2 having bought the ice for his own consumption but with the intention of giving some of it to his friends. He went on:

"..... but it is arguable that the starting point which (the sentencing judge) took is only the appropriate starting point if (A2) had been trafficking in all the ice .... Moreover, it is arguable that social trafficking in dangerous drugs should be punished less severely than commercial trafficking .... See, for example Byrne [1996] 2 Cr App R (S) 34 and Robertson [2000] 1 Cr App R (S) 514."

22. We shall return in due course to both of these important considerations.

A1's grounds of appeal

23. We turn next to the grounds of appeal raised on behalf of A1. Mr McGuinniety's primary submission was that because the bulk of the drugs in A1's possession were intended for her own consumption rather than for trafficking, the starting point of ten years adopted by the judge in A1's case was manifestly excessive. He accepted, of course, that the sentencing guidelines provided in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 indicate that the tariff for between 10 and 70 grammes of ice, to be imposed after trial, is between seven to ten years' imprisonment. However, Mr McGuinniety argued that whilst the quantity in the count faced by A1 may well have been only just short of 70 grammes, the circumstances in which A1 had pleaded guilty to trafficking were such that she did not merit being placed in the highest band for sentencing purposes. He contended that A1 was not the normal kind of trafficker because although some of her drugs would be sold or given to others, she was essentially a consumer intending to use the bulk of the ice for herself. Mr McGuinniety relied upon A1's account to the police about how she had bought three ounces at one time only because it was cheaper to do so and he pointed out that the paraphernalia found in A1's flat accorded with her account to police that she was a user of ice.

24. Mr Darryl Saw, SC, on behalf of the Respondent, replied by saying, amongst other things, that the judge had properly taken into account all relevant factors in mitigation. A1 had, he submitted, been found in possession of a very substantial quantity of ice, and when all the circumstances were weighed together, it became apparent that she was primarily a supplier of ice who was selling it in order to support her own addiction.

A2's grounds of appeal

25. Essentially, by merging the two grounds of appeal raised on A2's behalf by Mr McGuinniety, who did not represent A2 in the court below, the same central point which had been advanced on A1's behalf was repeated for A2, namely, that as the bulk of the ice being trafficked was for A2's own consumption, the judge should have reduced the starting point which would otherwise have been appropriate. In a sensible and realistic way, Mr McGuinniety suggested that the essential question for the court's determination was how much weight should be attached to the fact that some of the drugs were for self-consumption and some were for non-commercial trafficking.

26. Mr Saw's response was that there was overwhelming evidence to show that A2 was in possession of items for the packaging and distribution of a significant quantity of drugs. As such, he was entitled to no more than a full one-third discount for his plea, following the judge's correct application of the guidelines in Ching Kwok-hung (above).

A trafficker's mitigation that some of the drugs were for self-consumption

27. For the purposes of deciding these appeals, we have had to consider whether a trafficker, once it is accepted that he or she had or may have had for personal consumption some of the drugs referred to in the trafficking charge, can rely on this fact as providing mitigation which will materially reduce the sentence which might otherwise have been imposed in a case where all the drugs were possessed for the purpose of trafficking and, if so, to what extent it will do so.

28. This issue was touched upon in HKSAR v Lau Ping-him and Anor, CACC 455/2000 (unreported). However, for reasons which are made clear from a reading of the judgment, the issue was not specifically answered. Stock JA, (at page 8) giving the judgment of the Court, said:

"One matter which caught our attention is the question of assertions that some of the drugs were for personal consumption. The fact was mentioned as an assertion by the trial judge in her summing-up. She correctly directed the jury that so long as they were sure that part of the drugs were for trafficking, it mattered not, for the purpose of verdict, that part might also be for personal consumption. The judge did not, when sentencing, say anything about that; in other words, she obviously proceeded on the assumption that it was all for trafficking. D1 has mentioned the point in his address today. We have asked counsel for the respondent what stand in this particular regard is taken by the respondent on the facts of this case, but we are bound to say that the assistance we received was less than helpful. So, to this specific end, we have studied the facts for ourselves. The inference of possession for the purposes of trafficking was overwhelming, and that inference must relate to the significant majority of the drugs found. The judge must, we think, have had the point in mind." (Emphasis added)

29. The principle is of course well-established that where a part of the drugs referred to in a drug trafficking charge is proved to have been possessed by a defendant for the purposes of trafficking this will be a sufficient basis for a finding of guilt on a charge of trafficking even though a proportion of the same drugs is or may have been for the defendant's personal consumption.

30. Sometimes, there are two separate and clearly identifiable amounts of drugs. As an example, in R v Lam Kin-choi [1992] 2 HKCLR 235, the applicant had two laisee packets in his possession. Each contained a similar quantity of heroin. The applicant in that case pleaded guilty to a single charge of possession of dangerous drugs for the purposes of unlawful trafficking, although the mitigation advanced was to the effect that only one of the packets was going to be supplied to another while the other was intended for self-consumption. The modern-day practice in such a situation, where there are two separate quantities of drugs, of which only one has been described by a defendant as having been wholly intended for self-consumption, will usually involve a second count of trafficking being included in the indictment. In a case like Lam Kin-choi (above), the prosecution may then either accept a plea to simple possession on one of the counts or, if there remains an issue about whether these drugs were in fact being trafficked, and it is in the public interest to pursue it, the jury can be left to decide the matter.

31. In both of the present appeals, the factual situation was such that there was no readily discernible quantity which A1 or A2 possessed for the purposes of self-consumption. However, unlike the position in Lau Ping-him and Anor (above), there was in these appeals evidence which supported their assertions that some of the drugs were for personal consumption because of the paraphernalia suggesting that A1 and A2 were not only dealing in ice but were themselves using it.

32. The sentencing judges in both cases appear to have accepted what was said in mitigation about the intention of the Appellants to consume a part of the ice found in their possession because nothing was said to indicate any rejection of what had been advanced in mitigation. Having said this, neither Appellant was given any reduction in sentence for the 'self-consumption' element.

33. The answer to the question which was raised when leave in both of these appeals was given, namely, what the sentencer should do when the trafficker says that part of the drugs were for his own consumption, is that, where appropriate, this element should be taken into account when sentence is imposed, because all sentencing must be based on a version of the facts which properly reflects the justice of the case. That being said, in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the courts' stern approach to drug offences, sentencers will need to examine with particular care any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted as having been intended for self-consumption carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true 'mixed' cases, the difference in sentence, if any, will be slight.

34. Arising from these considerations:

(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will 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.

Usually a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold 2002, para. 5-20).

(4) 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. However in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the 'latent risk' factor (see: HKSAR v Mok Cho-tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) 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 (see: HKSAR v Lam Wai-ip CACC 214/1997, unreported) and ecstacy (see: HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 376).

(5) Where the mitigation has necessitated the holding of a Newton enquiry after which the mitigation is rejected, the court will be entitled to reduce by an amount appropriate to the circumstances, the discount normally given following a plea of guilty (see: R v Lee Chiu-pang [1995] 2 HKC 523 at 526).

(6) Sentencers should remember as to 'trafficking' itself, that its gravity is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction (see: R v Lau Tak-ming and Anor [1990] 2 HKLR 370 at 385).

"Non-commercial" trafficking

35. There is a subsidiary question to be addressed which arises only in A2's case. Plainly, it is arguable that purely social trafficking, where there is no commercial element to the offence, calls for less severe punishment than trafficking for profit. We shall turn shortly to some of the cases which have come before the Court of Appeal in England where such an argument has found favour.

36. We are most grateful to Mr Saw and to Miss Mary Sin, on behalf of the Respondents, for their most thorough and helpful written arguments on this topic. It is pointed out that since Chan Chi-ming v R [1979] HKLR 491, the courts in Hong Kong have adopted sentencing guidelines for drug trafficking which provide varying levels of punishment for traffickers depending on the weight of the drugs being trafficked.

37. At the time of the decision in Chan Chi-ming, it was, of course, the weight of the mixture which the sentencer had to consider, rather than the weight of the narcotic content in the mixture which, in the years since 1990 when Lau Tak-ming (above) was decided, has been the crucial factor in the level of sentence to be imposed. Both these authorities provided guidelines for trafficking in heroin but they were referred to in Ching Kwok-hung (above) at p. 130 where the guidelines for sentencing traffickers in ice are set out.

38. It can readily be seen that the basic premise of the Hong Kong courts in their approach to drug traffickers has, for over a decade, been that the more narcotics in which an offender is proved to have been trafficking, the greater the evil to society this will represent because of the damage which those drugs will inflict on others. This, in turn, has been the justification for saying that the greater the weight of narcotics being trafficked, the higher the sentence will generally be. However, we note that in Chan Chi-ming, at page 493, the court said:

"We need not elaborate upon the appalling social and family consequences of the abuse of drugs. In our view, those who take part for gain in drug trafficking can expect, and should receive, no mercy from the courts." (Emphasis added)

39. The words "for gain" do not appear in Lau Tak-ming or Ching Kwok-hung. More recently, in HKSAR v Manalo [2001] 1 HKLRD 557, we emphasised that consistency of sentencing in trafficking cases concerning couriers and storekeepers was directed at the weight of the drugs being trafficked (without reference to financial gain). We said (at p. 560):

"It is quite apparent from this passage in Lau Tak-ming that the court had no intention of treating couriers or storekeepers of heroin as if they were deserving of more lenient treatment than the guideline tariffs generally suggest. The same would obviously apply to couriers and storekeepers of ice. Not even youth, old age or disability will carry much weight and more often than not it carries none.

The policy of this court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases earlier mentioned so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffic in dangerous drugs. It is important for the courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.

Whilst those who play an aggravated role in the drugs trade, such as the manufacturers, the wholesalers and the 'bosses' who send the couriers out onto the streets to traffic can all expect longer sentences than the couriers and storekeepers, the couriers and storekeepers themselves cannot expect to receive less than the tariff sentence."

40. In the vast majority of cases involving couriers and storekeepers, there will be direct or implicit evidence of an underlying commercial transaction. What, then, should be the position where a trafficker does not have a commercial motive?

41. In England, the weight of authority favours sentencing drug dealers, where no financial motive is disclosed, to lesser sentences than those who do so for financial gain. Illustrations of this are to be found in R v Robertson [2000] 1 Cr App R (S) 514 and R v Byrne [1996] 2 Cr App R (S) 34. Both cases were concerned with the supply of ecstacy which is a drug that is, perhaps more than most others, prone to be shared amongst friends at social gatherings.

42. In Robertson, the court felt "constrained by the authorities" to reduce an eighteen-month sentence to twelve months' imprisonment where the appellant, at his home address, had twenty-eight ecstacy tablets in his possession (with intent to supply), variously divided into wraps of six, five and three tablets. These quantities were also detailed on a piece of notepaper on which was written a list of five names. In addition, cannabis and other drug-related paraphernalia were found at his address. The appellant admitted that he intended to supply twenty of the tablets to the five persons on the list, but claimed that he was not involved in commercial supply beyond recouping the money he had spent on the tablets. Byrne (above) and R v Wakeman [1999] 1 Cr App R (S) 222 were cited in Robertson.

43. In Byrne, two years' imprisonment for the possession (with intent to supply) of eighteen tablets of ecstacy which were intended for sharing with friends was reduced to twelve months. No financial motive was alleged but the court found that the appellant was "affording encouragement" to others to use ecstacy. The appellant had been arrested near a nightclub known to the courts as a place where ecstacy was bought and sold. It seems to have been accepted that the appellant was acting as a "minder" of the drugs to save the others in his group from the risk of detection.

44. In Wakeman, two years' imprisonment for offering to supply ecstacy was reduced to eighteen months. The appellant was stopped near a nightclub which was a well-known haunt of drug users. He was in possession of six ecstacy tablets, as well as small quantities of cocaine and cannabis. Some of the drugs were in his physical possession and some were in his car. At his address, two lists of names and figures were found. One list, according to the appellant, set out the number of ecstacy pills he had to obtain for the fourteen people who were named thereon. The second list was said by the appellant to be a record of the money he had "lent" to the eighteen friends named on it so that they could buy ecstacy from him. The basis of the plea of guilty was that the appellant would in the future supply ecstacy only to his friends who were named on the list and who were known to be existing users of that drug. The money he had lent these friends would enable them to pay for the drugs. The English Court of Appeal, not surprisingly, criticised the prosecution's acceptance of this version as a proper basis for acceptance of a plea to non-commercial trafficking. The court indicated that it had left the sentencing judge to pass sentence on an "artificial basis" because the circumstances clearly showed that the appellant was "simply a drug dealer". Nevertheless, the appellant's sentence was reduced, in spite of the artificiality of the situation, because sentence had been imposed on the basis of a "non-commercial offer to supply and an offer to supply friends only".

45. It may be worthwhile to refer to one other case involving ecstacy. In R v Spalding [1995] 16 Cr App R (S) 803, the Court of Appeal reduced a sentence of thirty months' imprisonment to eighteen months for the possession of fifty-four tablets of ecstacy with intent to supply. The basis of the plea of guilty was that the appellant was looking after the tablets as a "minder" for a friend who was a dealer and that he intended to return them to him. There was no evidence upon which the sentencing court could find that the appellant was himself a dealer or that he stood to gain financially from his possession of the ecstacy. The court decided, when reducing the appellant's sentence in the light of the mitigation, to follow R v Arif [1994] 15 Cr App R (S) 895 where it was determined that heavier sentences should be imposed on "couriers" than on "minders" of dangerous drugs.

46. It should, however, be borne in mind that the term "courier" was understood in Arif to refer to an importer of drugs. By way of contrast, in Hong Kong, a courier who has imported drugs is liable to have this element of criminality considered as an aggravating factor, putting such an offender into a category where the tariff is likely to be higher than for other couriers and storekeepers (or minders) who are not also responsible for importation.

47. We have cited these decisions from the English Court of Appeal to demonstrate what we consider to be the inadvisability of having a blanket policy that in cases where no financial gain is disclosed as the motive for trafficking in dangerous drugs, a reduction in sentence should almost inevitably follow. In our opinion, adopting present sentencing practice in Hong Kong, none of the English cases we have cited would have justified any departure from the guideline tariffs which would normally be imposed for similar offences committed here. It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked.

48. It has often been said that sentencing is an art. Judges are expected to use their experience, assisted by a large measure of common sense, to decide whether a distinction can properly be drawn between a trafficker who can genuinely advance mitigation that no profit motive was involved in the small supply of drugs to a friend, and others who carry a supply to give to their friends as and when the occasion may arise. In the former category, there might, for example, be the individual who purchases a small quantity of a dangerous drug for recreational use and gives part of it to his partner, who has previous experience of the drug, to consume at a social event. This plainly would fit, we suggest, into the lowest bracket of sentence for trafficking. It is quite a different matter, taking the example in the latter category, for a trafficker, who sometimes uses drugs, to carry or store a supply of drugs to give to his friends or acquaintances as and when the occasion should arise. Firstly, it goes without saying that such traffickers pose exactly the same threat to society as people who peddle their drugs for gain. Either way, the drug abuser is supplied with drugs with the same potentially dangerous impact resulting from the supply. Secondly, the bulk of the drugs would, in such an example, almost certainly have been established to be intended for trafficking and, whilst the absence of a profit motive, inherently unlikely though this must be in such a scenario, might slightly reduce the trafficker's moral blameworthiness, we do not consider that this would provide mitigation justifying any specific discount.

49. It has to be borne in mind that the evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain. Looked at in another way, we believe that the major concern of the law-abiding community in Hong Kong, aware of the immense harm and suffering caused by drugs and by those who are engaged in trafficking them, is principally directed at the availability of drugs which traffickers make possible by their activities rather than the profits which traffickers are able to make from what they have done. By way of example, the parents whose son or daughter starts to abuse drugs are unlikely to have any particular interest in the trafficker's motive for supplying those drugs; it is the fact that their offspring has been supplied with the drugs which will, justifiably, be the object of their concern and it will be no consolation to such parents to be told that the supply came from a "friend" who had no financial motive when handing over the drugs.

50. The courts have a duty to keep these concerns uppermost in mind when deciding the appropriate level of sentence for drug traffickers, whether or not they have profited by their activity.

51. In our opinion, while some of the "social" or "non-commercial" trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not in itself provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking. The "friend" who starts off or perpetuates another's abuse of drugs is as dangerous to the community as the commercial supplier of small quantities who will generally traffic in drugs with those already addicted.

Approach to sentence in CACC 366/2000 (A1)

52. A1's case involved a comparatively large amount of ice. The circumstances of her arrest were revealing. The paraphernalia in her room included a weighing scale which bore traces of ice and a quantity of resealable bags commonly used by traffickers for the supply of small quantities of dangerous drugs. There was a further wad of bags thrown out of the window. Although our papers do not reveal an estimated value of the drugs in A1's possession, on her own admission A1 claimed she had paid $7,000 for them, a large sum for someone who was unemployed and having to fund her own rent. Furthermore, she admitted that she had bought "3 ounces" (an ounce is approximately 28 grammes) on the day before her arrest. It can readily be seen that her possession of only 68 grammes on 8 September 1999 meant that one way or another she had disposed of about 16 grammes inside 24 hours.

53. A1's counsel had acknowledged in mitigation that A1 was an established trafficker in drugs and that she was engaging in these activities in order to fund her own addiction. This was a realistic concession in the light of the exhibits found at A1's flat which indicated a major packaging operation.

54. In our view, the mitigation put before the court was insufficient to have enabled the judge to say that a significant proportion of the drugs was intended for self-consumption. We consider, therefore, that the judge in A1's case was right not to have reduced the sentence he imposed, as the result of the mitigation advanced on her behalf that some of her supply of ice would have been consumed by herself, other than by giving her the usual discount of a third for her plea which she would have received in any event. As we have said already, there were other matters in mitigation which further reduced her sentence, but these were irrelevant for present purposes.

55. This was not a case where it could be said that A1 had a significant proportion of the drugs for self-consumption and the claim that there was a significant proportion, which Mr McGuinniety made before us, was unsubstantiated.

Approach to CACC 487/2000 (A2)

56. In A2's case, the amount involved was approximately half an ounce (or about 14 grammes) which had a retail value of just under $5,000. No doubt, as A2 also claimed, ice is more cheaply bought in bulk than in smaller quantities, but once again this was a sizeable and valuable quantity, especially for someone with no real employment. The paraphernalia found with the drugs included 320 empty bags. A2's wayward life-style which is described in the probation report, provided him with no assistance.

57. In our view, on these facts, whilst it appears to have been accepted that A2 was a social consumer of ice, there was little which afforded him any mitigation which could materially affect the usual sentence to be imposed for trafficking in this amount of ice. We consider that the judge, leaving aside the fact that she was never asked to reduce A2's sentence on account of his intended consumption of some of the ice, was fully entitled to have given no reduction for the 'self-consumption' suggestion. As A2 had admitted, and as the circumstances made plain even without his admission, the several hundred transparent plastic bags were for packaging ice for convenient supply to others, representing a sizeable packaging enterprise. The claim which was made in this court that A2 had a significant quantity of drugs for his own consumption was, in our judgment, not made out. No doubt he was an occasional user of ice but the evidence established that he was essentially a trafficker.

Conclusion

58. Both of these appeals, for the reasons we have given, are dismissed.