R. v. HO LAM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.205 of 1996

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J U D G M E N T

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1. The Appellant was charged with Trafficking in a Dangerous Drug, contrary to s.4(1)(a) & (3) of the Dangerous Drugs Ordinance. The particulars of offence alleged that he trafficked four packets of raw opium totalling 1,938.20 grammes and five plastic bags containing traces of raw opium. When he appeared before the magistrate on 22nd December 1995, he pleaded not guilty to the charge. The prosecution case solely rested on admitted facts. The copy of admitted facts was signed by both prosecution and defence legal representatives. The facts revealed that police officers entered the premises of the Appellant on 5th August 1995 and they conducted a search. As a result 1,938.20 grammes of raw opium and five plastic bags with traces of opium were found on the premises. The Appellant was arrested and under caution, the Appellant "admitted knowledge and ownership of the seizure found inside the premises. He bought the seizure from his friend surnamed 'Ah Lee' for HK$38,000 but he had not yet paid 'Ah Lee' the money. He bought the seizure for his own consumption but if he had friends who suffer from stomach, hypertension, asthma, he will give them some. In that case, he would recover the cost from them. No one asked him for the opium."

2. The Appellant did not give evidence. It was submitted on his behalf that the agreed facts did not disclose any act of trafficking. The charge was then amended. The charge was still Trafficking in a Dangerous Drug. But the section quoted was 4(1)(c) & (3) of the Ordinance and the particulars alleged that the Appellant was in possession of the raw opium and plastic bags for the purpose of unlawful trafficking. It was obvious that in preparing the amended charge, the wrong section had been quoted. The substance of charge remained good.

3. The Appellant pleaded guilty to the amended charge and he was convicted and sentenced to 21 months imprisonment.

4. The magistrate reached this level of sentence relying on Wong Ma Tai, AR 1/91 where the Court of Appeal following Chan Chi Ming, [1987] HKLR 221 held that for possession of 1,763.3 grammes of raw opium for unlawful trafficking the sentence would be one of two years imprisonment. The magistrate proceeded to adopt a starting point of 24 months and reduced it to 21 months after allowing discount for the Appellant's family circumstances and his plea of guilty.

5. In his Reasons for Sentence, the magistrate specifically excluded the fact that the Appellant had the opium for his own consumption and would supply some to his friends at cost if they needed them. It was obvious that the magistrate regarded the whole amount of raw opium was in the possession of the Appellant for trafficking and he sentenced the Appellant on that basis.

6. The Appellant appealed against sentence. Originally, it was also the intention of the Appellant to appeal against conviction out of time. Mr Poll for the Appellant informed me at the beginning of the hearing of this appeal that the Appellant only wished to proceed with his appeal against sentence.

7. The thrust of Mr Poll's submission was that the facts at least disclosed the Appellant did not possess the whole amount of 1,938.20 grammes raw opium for the purpose of unlawful trafficking. The facts showed that the bulk was for his own consumption and only some of this quantity would be supplied to friends. He submitted that the magistrate in sentencing the Appellant for the offence of trafficking in a dangerous drugs must have regard to this fact and should not have sentenced the Appellant on the basis that the whole amount was for trafficking. Mr Poll submitted that if the whole amount was for trafficking, he would have no quarrel on the sentence of 21 months which was in line with the guidelines in Lau Yiu Nam [1986] HKLR 964 where the suggested tariff after a trial for possession of raw opium for trafficking in an amount between 1000 and 2000 grammes should be two to three years imprisonment. However, referring to Chan Mung Lung, Cr. App.394/91, he submitted that a sentence should be passed which reflects the factual version most favourable to the Appellant. The magistrate should have made a finding as to what proportion the raw opium was for supply to others and what proportion was for his own consumption and to sentence on that basis. In the absence of such a finding, the magistrate should based his sentence on the majority of the opium was for the Appellant's own consumption.

8. Mr Poll also referred to R. v. Yu Man Wu, Cr. App.214/95 in which the Court of Appeal dealt with the amount of discount that should be given to a plea of guilty. In the course of the judgment, Bokhary JA, after he remarked that a six months discount from a starting point of six years after a plea of guilty was too little despite the fact that defending the case would be very difficult and the time saved by the plea was not very great, said :

"Nevertheless it is the policy of the law to encourage guilty pleas by guilty persons. So this applicant should have been given a substantial discount. It did not have to be as much as the discount due to some who pleas guilty despite the fact that the prosecution case is not as overwhelming as it would be if, for example, he had been caught 'red handed'. Nor did it have to be as much as the discount due to some whose guilty plea saves a lot of time. But it ought to have been substantial nevertheless."

9. It is submitted that in the circumstances of the present case, the starting point was not two years and there should be a substantial discount from whatever was the appropriate starting point.

10. Mr Lo for the prosecution submitted that 21 months was appropriate sentence after a discount of three months from 24 months.

11. It would appear that the Appellant was only prepared to plead to the charge when it was accepted that the whole amount of raw opium was not for trafficking and he would be sentenced on the basis that only some of it would be supplied to others if there was a need from his friends. The facts on which the magistrate reached the level of sentence should be on that basis. To sentence the Appellant on the basis of all the raw opium were for trafficking in the face of such admitted facts would be wrong. The magistrate had failed to take that into consideration in arriving at the sentence. The appropriate sentence should be less than the sentence which would have been imposed if all the raw opium were for unlawful trafficking. It is not possible to quantify what amount would be for consumption or for supply to others. Given this difficulty, the court is obliged to take the view most favourable to the Appellant i.e. the majority was for his own consumption. Having regard to his plea of guilty for which a substantial discount should be given, the sentence appropriate to the special circumstances of this case should be one of 15 months. The appeal against sentence is allowed to this extent.