HKSAR v. CHOI CHUN WO

CACC 273/2017
[2018] HKCA 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 273 OF 2017

(ON APPEAL FROM DCCC 102 OF 2017)

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REASONS FOR JUDGMENT

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1.  On 3 August 2017 the applicantpleaded guilty before Deputy Judge M Chow (“the judge”)in the District Court to one count of trafficking in a dangerous drug, namely 5.33 grammes of a crystalline solid containing 5.26 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  On 21 August 2017 he was sentenced by the judge to 3 years 4 months’ imprisonment.  On 1 September 2017 the applicant filed an Application for Leave to Appeal (Form XI) against his sentence. 

3.  At the hearing of the application I granted the applicant leave to appeal and said I would later hand down my reasons for doing so.  These are my reasons.

The background to the offence

4.  On 6 December 2016 at around 12:15 pm the applicant was stopped at the Customs Arrival Hall of Lo Wu Control Point.  Upon a search of his person six plastic bags containing a total of 5.33 grammes of crystalline solid containing 5.26 grammes of Ice were found in his left front jeans pocket.  The estimated value of these drugs was $1,785.55. 

5.  The applicant was arrested and under caution he claimed that the Ice was for his own consumption and that he had bought it for RMB500.  In a subsequent video record of interview that was conducted with him the applicant repeated his claim saying that he had bought the Ice in Shenzhen for his own consumption and had already consumed about 0.2 to 0.3 gramme of it.  He said he would consume Ice about 3 times a day and on each occasion he would consume about 0.3 or 0.4 gramme.  He claimed that he was a logistics worker who earned about $7,000 to $8,000 per month on average.

6.  At the time of his arrest he had 3 mobile phones and 4 SIM cards in his possession. 

The mitigation

7.  The applicant’s counsel, Mr Keith Fung, informed the court that the applicant was 44 years old and was living with his younger brother, his mother having died.  In 2010 he married but he and his wife have been separated since 2015.  He lived in a public housing estate flat whose rent was paid entirely by his younger brother. 

8.  Mr Fung said that the applicant claimed that all of the drugs were for his own consumption but he declined to give evidence in support of this claim.  He said that some days before the commission of the offence the applicanthad been paid wages of $2,000 by his employer.

9.  Mr Fung did not object to the prosecution tendering to the court the applicant’s Correctional Services Department urine test result, the applicant’s Immigration Department travel movement record for the period 6 October 2016 to 6 December 2016 and an expert report on Ice prepared by a Consultant Psychiatrist of the Hospital Authority.  The urine test result confirmed that the applicant was an Ice abuser.

10.  The travel movement record showed very frequent travel by the applicantto and from the Mainland.  This led to the following exchange with Mr Fung:

“COURT: And this is quite a consistent pattern. He lives in China. If he lives in China, how can he work in Hong Kong? He come back at noontime. Would his employer tolerate this kind of late arrival?

MR FUNG: The situation is just like this. Let me deal with it bit by bit.

I visit him in Lai Chi Kok and talk about this matter, and he says that his job nature is just like this. His boss ‑‑ his employer, that Mr Lam, just like an agent in Hong Kong. Whenever he received -- Mr Lam received a big cargo of goods, he will call this defendant and the others - come to sort out the different kind of goods, and there are occasions he will be asked to take goods to mainland China to various customer who have made order for those goods.

COURT: How does he made(?) for each journey?

MR FUNG: I’m sorry?

COURT: How does he made -- how much does he made in each journey or in each occasion?

MR FUNG: For that Mr Lam’s employment he confirmed what he said in the cautioned statement:  on average, 300 a day, 7 to 8,000 a month - and there are occasions he had to take the goods to mainland and send it further by post or the Speedpost.  But whenever he went to mainland China late in the evening and the Post Office is off duty, he has to spend the night with his friends and do the posting works the next day.  So that is what he said in relation to the staying in mainland China overnight.”

11.  The Consultant Psychiatrist’s report contained much helpful information on the drug Ice, from its chemical nature, to method of consumption and consumption rates for different users.  The consumption rate claimed by the applicant was not inconsistent with what was said in this report. 

The judge’s Reasons for Sentence

12.  In determining whether to accept the applicant’s claims that the whole of the drugs were for his own consumption the judge was clearly influenced by the contents of the travel movement record.  She said:

“23. I notice from the movement record there was a consistent pattern that the defendant returned to China to stay overnight.  The month prior to 5 December, he never stayed in Hong Kong for more than two nights.  There may be some truth that the ‘open packet’ was for his own consumption.

24. As to his staying overnight in China, I brought this to the attention of the defence.  The defence was clearly aware of this piece of information.  The defendant said that he picked up the ‘delivery’ late and was required to stay in China for a night at his friend’s place.

25. In the record of interview, he said that he took drugs either in the toilet or in the hostel, not at his friend’s residence.  I have doubt that he had friends that would put him up on such a regular basis.

26. As said before, the movement records show that he stayed in China most of the time, sometimes in consecutive nights. 

27. My question to ask:  why did the defendant need to bring five days’ dosage to Hong Kong?  There was no good reason for him to bring in more drugs than he needed to.  Any surplus to take back to China increased his risk for being arrested at both the Hong Kong and China border.  To this end, I refuse to accept that the whole of the six packets were for his own consumption.”

13.  The judge resolved this issue by accepting that one of the packets of Ice, the one which had already been opened and from which some Ice had been consumed, was for the applicant’s own consumption.  The quantity of Ice in this packet was 1.99 grammes.  But, she was not persuaded that the remaining packets were for the applicant’s own consumption.

14.  Notwithstanding that Mr Fung urged the judge to adopt a starting point of between 4½ and 5 years’ imprisonment the judge adopted a starting point of 5 years 6 months’ imprisonment. 

15.  For the claim for self-consumption she allowed the applicant a reduction of 6 months’ imprisonment which brought the starting point down to 5 years’ imprisonment.  When it was further reduced by one third to allow for the applicant’s guilty plea the final sentence became 3 years 4 months’ imprisonment.  

The grounds of appeal

16.  The applicant has no legal representation and has filed no written submission.  However, in his Form XI and in letters to the court dated 8 September and 28 September 2017 he has complained that the judge should have found that all the Ice was for his own consumption, that the starting point was too high and by reference to a case relied on by his counsel at his sentencing hearing, namely, HKSAR v Ngai Ho Ting[1], that the discount for self-consumption was too little.    

17.  At the hearing of the application the applicant repeated the claims advanced on his behalf at the sentencing hearing and sought to explain why the judge should have accepted them.  He maintained that the judge was wrong not to have found that all of the drugs were for his own consumption. 

The respondent’s submission

18.  Mr Vincent Lee, Public Prosecutor, for the respondent, accepts that on an arithmetic calculation the judge’s starting point of 5 years 6 months was on the high side.  An arithmetic calculation results in a starting point of 5 years and 1 month’ imprisonment.  Mr Lee argues that the approach of employing an arithmetic starting point has been endorsed by this court as an approach which may be of assistance in affording transparency in the sentencing process.  It is only a first step and after the arithmetic starting point has been calculated a judge is free to depart from it as appropriate. 

19.  In respect of the claim by the applicant that all the drugs were for his own consumption, Mr Lee noted that the judge’s finding in respect of the contents of one packet meant that the judge found that 37.8% of the total quantity of dangerous drug were for the applicant’s consumption.  On the basis that this does not constitute a significant proportion then it could be said that by allowing a further discount of 9.1% for this amount the judge acted generously towards the applicant.

Discussion

20.  Here, the first issue for the judge to determine was whether she accepted the claim by the applicant that all of the drugs were for his own consumption.  The judge concluded that she could not accept that assertion but that she would accept that the contents of one packet which had already been opened and partially consumed were for the applicant’s own consumption.  I do not find it reasonably arguable that the judge erred in either her application of the relevant legal principles or her analysis of the facts in reaching this conclusion. 

21.  Essentially all that the applicant submitted to me at the hearing of this application was that he should be believed in his claim that all the drugs were for his own consumption as he was a long term addict and this quantity of Ice represented for him only one weeks’ supply. 

22.  The problem for the applicant, as I explained to him, is that he did not give evidence in support of his claim and so the judge had before her nothing but an unsupported assertion from his counsel.  It was for the judge to determine what weight to give to that assertion when resolving this factual dispute.  I cannot see anything in her Reasons for Sentence which would evidence error by her in concluding not to accept that assertion.

23.  As Mr Lee has noted the quantity of drugs, 1.99 grammes, in the one packet that the judge did accept were for the applicant’s own consumption, represented 37.8% of the total quantity of 5.26 grammes.  Arguably this quantity is a significant proportion of the total drugs found on the applicant and therefore raises the question of what discount should be awarded for it.  The discount allowed by the judge of 6 months from a starting point of 5 years 6 months, amounts to a reduction of 9.1%.

24.  Where it can be said that a significant proportion of drugs possessed by a drug trafficker is for his own consumption then a discount of between 10% and 25% of the basic starting point should be awarded to him.  This range was laid down by the Court of Appeal in HKSAR v Chow Chun Sang[2]. 

25.  If 37.8% is determined by the Court of Appeal to be a significant proportion of the whole then the applicant should have received at least a 10% discount.  Mr Lee does not contend otherwise.  Whether he should have received more will require an extensive examination of the relevant sentencing authorities and be a matter for submission.

Conclusion

26.  For these reasons I grant the applicant leave to appeal his sentence on grounds that the starting point adopted by the judge was too high and that the percentage discount allowed by the judge for self-consumption was too low. I do not grant leave on the ground of appeal that the judge erred in concluding that only one of the packets, the unwrapped and open packet, was for the applicant’s own consumption.  I also grant the applicant a legal aid certificate so that he can be represented at the hearing of his appeal.