HKSAR v. YU KWOK SIU

HCCC 109/2018

[2018] HKCFI 2363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 109 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 25 March 2018, Yu Kwok-siu, hereafter referred to as the accused, came before a magistrate and pleaded guilty to charges of trafficking in dangerous drugs and possession of dangerous drugs. In the course of those proceedings, he admitted the Summary of Facts. He was committed for sentence to this court.

On 21 February 2017, in the evening, police officers gained entry to premises at an apartment in Tuen Mun. Another person opened the door, but the accused, who had admitted to be the tenant of the premises, was found sitting in the centre of the premises. When the police entered, there were three other persons in the premises.

The premises were searched and the following items were found:

(1) 12 glass bottles and a glass beaker containing 30.24 grammes of a crystalline solid containing 29.56 grammes of methamphetamine hydrochloride commonly known as ‘Ice’;

(2) three plastic bags containing a total of 484.4 grammes of cannabis in herbal form;

(3) two glass bottles containing a total of 32 millilitres of liquid containing a total of 5.97 grammes of ‘Ice’;

(4) 12 plastic bottles containing a total of 915 millilitres of liquid containing traces of ‘Ice’;

(5) one glass bottle containing three hand-rolled cigarettes containing a total of 0.43 grammes of cannabis; and

(6) an electric scale.

The accused was then arrested and cautioned. The accused admitted that all of the dangerous drugs belonged to him and he asserted they were for his own consumption and all the ‘Ice’ bottles were for his own use. A short time later, the accused admitted in an interview which was video recorded that. (1) He rented the flat $28,000 a month and the persons inside were invited by him to visit, indeed, the female present was a prostitute.

(2) He purchased the drugs from mainland China at a price of Renminbi 15,000 for the ‘Ice’ and 15,000 for the herbal cannabis. (3) He said he consumed the ‘Ice’ which had been seized using the bottles found in the flat; and (4) he smoked cannabis.

The estimated street value of 29.56 grammes of methamphetamine hydrochloride is $9,200-odd and the estimated street value of the herbal cannabis, weighing 468.4 grammes, is $149,500.

By his plea of guilty, the accused admits he was in possession of the drugs and, in particular, the 29.56 grammes of ‘Ice’ that was seized and 468.4 grammes of cannabis were for unlawful trafficking. The other drugs form the subject of the charge of possession of dangerous drugs.

The accused is a 60-year-old man. He was born in mainland China. He became a permanent resident of Hong Kong in 1974. He was educated to primary school level and has worked as a decoration worker, a hawker and worked in a casino for some period of time. He asserts that he is suffering from heart disease and requires medication in respect of that. He asserts that he has been a drug addict since 2012. He is a divorced man. His wife died a few years ago. He has daughters aged 37, 36 and 34, respectively, which he describes as studying abroad in the United States.

The accused has a criminal record of substantial length. Perhaps, significantly, he does not have any substantial number of drug convictions. Indeed, pausing there, the only drug related conviction was in 2009 for possession of a pipe and equipment fit and intended for smoking, injecting or inhaling dangerous drugs for which he was given a suspended sentence.

Sentencing principles - Tariff for ‘Ice’

The community of Hong Kong and, as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking particularly in relation to ‘Ice’. The ingestion of ‘Ice’ has terrible consequences for the individual. It is savagely addictive. Ridding oneself of that addiction is to say the very least an arduous process and, sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to this drug.

Further, the conduct of persons affected by ‘Ice’, both in private and perhaps more pertinently in public, can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels of those sentences traditionally imposed for trafficking in ‘Ice’. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of this charge.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for the quantities involved in the present case, which is 29.56 grammes of ‘Ice’, is for quantities between 10 grammes and 70 grammes, a sentence of somewhere between 7 and 11 years' imprisonment ([2014] 3 HKLRD 691, para 34).

Cannabis

In the Attorney General v Tuen Tsui Ming & Anor [1995] 2 HKCLR 129, the Court of Appeal set out guidelines for trafficking in cannabis. The guidelines outlined in that case were for cannabis resin and for the band appropriate for the quantity involved, that is an amount of under 2,000 grammes is a sentence of 16 months’ imprisonment.

The Court of Appeal recognised that the concentration of the psychoactive component of herbal cannabis, known by the acronym THC, is substantially less than cannabis resin and sentences should take that into account. As the Court of Appeal noted ([1995] 2 HKCLR 129, 135) that, experience demonstrated that cannabis resin has about four times the concentration of THC when compared to herbal cannabis.

In Secretary for Justice v Lee Siu Kei [2006] 1 HKC 499, the Court of Appeal confirmed that the concentration of THC in herbal cannabis was likely to be substantially lower and that a more realistic view was that cannabis resin was about four times that of herbal cannabis. Accordingly, a downward adjustment of sentences for herbal cannabis reflect the lower THC content should be made.

Relevance of possession for self-consumption in trafficking charges

The authorities clearly recognise that on a trafficking in dangerous drugs charge, that possession of some of the drugs the subject of the charge for self-consumption is a mitigating factor. That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 6, and more recently in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121. However, as the Court of Appeal in HKSAR v Wong Suet Hau and HKSAR v Chow Chun Sang make plain, the possession of dangerous drugs is of itself a serious offence and there is also the issue of “latent risk” to consider different drugs involved.

A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that there was here a collection of different dangerous drugs to which the accused has pleaded guilty. The authorities identify different approaches. The approaches identified in the authorities recognised that an approach where a sentence for each component of the collection of drugs in which the defendant was trafficking might, if they were simply added together, produce a result that was unjust.

This is, in the final result, a reflection of the basic principle that sentence is an art and not a mathematical exercise and the art of sentencing is devoted to producing a just result given the circumstances of the defendant. A just result in this context is against the imperative which arises from community and thus the courts taking a very strong view in relation to the trafficking of dangerous drugs, especially ‘Ice’.

In the present case, the drugs could not be more different. That is true both with respect to the effect of the drugs and the differing degrees of social concern when the two drugs are compared. On any view, ‘Ice’ is regarded as a substantially more serious social problem in Hong Kong and is, by far, the more serious in terms of the consequences of the ingestion of ‘Ice’ for the individual and the community. One of the bases for that conclusion is based on a comparison of the sentencing level for each drug.

Sentences for possession of dangerous drugs

There are no tariffs for possession of dangerous drugs. The circumstances in which this offence may occur are many and varied. In respect of the accused, the critical drug for sentencing is ‘Ice’. As will shortly appear, while the quantities of the other drug involved, herbal cannabis, are not insignificant. But in terms of quantity, it pales into insignificance when compared with the quantity of ‘Ice’ involved.

The tariff for trafficking in the quantities the subject of Count 1 provides some assistance. The relevant tariff is to be seen in R v Lau Tak Ming [1990] 2 HKLR 370, HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Had this ‘Ice’ been a trafficking case, the tariff in R v Lau Tak Ming would have been highly pertinent. They are in relation to the quantity up to 10 grammes of narcotic, 2 to 5 years’ imprisonment.

The relevance of trafficking guidelines to sentencing for possession of dangerous drugs was recognised by the Court of Appeal in Secretary for Justice v Ng Wing Yi CAAR 4/2013. The basis of that relevance is that such guidelines do not in themselves dictate a mathematical calibration downwards for simple possession, but they illustrate the seriousness with which the drug is now treated, a recognition of the prevalence of the drug and its dangers to the community.

Plainly, there is a recognition in the authorities which provide guidelines with respect to trafficking of the seriousness of the problem of ‘Ice’ which simply cannot be ignored. The overall effect of these authorities reveals that ‘Ice’ is, as I say, a savagely addictive drug and it is cruelly persistent in respect of those who seek to rid themselves of the addiction. It is a matter which is very serious for both user and community. Small wonder it is that our courts have consistently said that ‘Ice’ is either as bad or at least as bad as heroin.

There are a multitude of decisions as to the appropriate sentence for possession of dangerous drugs and I intend to refer only to a selection of them. Perhaps, the best starting point in this regard is HKSAR v Mok Cho Tik [2011] 1 HKC 261. In that case, the Court of Appeal was asked to consider the case of possession of 15.7 grammes of ‘Ice’. In that case, Stock JA observed ([2011] 1 HKC 261, 267):

"The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. But that is not the be all and end all of the appropriate starting point."

Stock JA added:

"Obviously, the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be."

The Court of Appeal adopted a starting point of 18 months’ imprisonment which was to be enhanced by 12 months for the latent risk factor inherent in the possession of such a quantity of dangerous drugs. (The origin of this starting point may, perhaps, be seen in HKSAR v Yu Fei CACC 152/2000 which is a fairly extensive review of the decisions on possession of dangerous drugs up to that point.) The range has to be understood against the examples cited by Stock JA which were substantially greater in terms of weight of narcotic than the case he was considering and, for the most part the case in hand.

Latent risk

Since at least 1994, the courts of Hong Kong have recognised that in the context of the possession of dangerous drugs, there is a risk of those drugs being disseminated. The phrase used, perhaps inaptly, to describe this is “latent risk”. The matter was discussed in R v Chiu Hung-wong & Anor [1994] 1 HKCLR 184 by Silke VP (at para 22/25). More recently, the latent risk factor is recognised in HKSAR v Minney [2011] 3 HKLRD 556, 4 HKC 136.

An enhancement on this basis is not merely for having a significant quantity of drugs. It is not to be employed as a form of disguise sentencing for trafficking in the drug the subject of the charge. It is self-evident that there cannot be a tariff for latent risk. The authorities recognise the highly fact-specific nature of the assessment which has to be done. It is recognised in the authorities that a three-stage process is necessary.

The first stage involves the identification of a starting point appropriate for the offence. The second stage of that process is the assessment of the latent risk. And the third stage involves the adjustment for any relevant discount.

Possession for own consumption of drugs possessed for unlawful trafficking

Where, as here, there is a dispute as to the facts germane to the appropriate sentence to be imposed, it is sometimes necessary to hold what is known as a Newton hearing. Lord Lane CJ observed in R v Newton (R v Newton (1982) 4 Cr App R (S) 388) that it would be open to a court to assume a jury function and reach a conclusion after hearing evidence. Alternatively, the court can hear no evidence and reach a conclusion after hearing submissions of counsel ((1982) 4 Cr App R (S) 388, 390).

Consistent with the observations of Lord Lane CJ in R v Newton, in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal held that it was not always necessary to hold a Newton hearing. The Court of Appeal observed that appropriate care needs to be taken to analyse the validity of any assertion on the part of the accused that all or part of the drugs in the possession of the accused were for personal consumption. The court then continued:

"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 make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of 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. 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 were 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 the drugs and, on the other, items which are used for the consumption of the 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 Criminal Pleading, Evidence and Practice 2002, paragraph 5-20.)

In my judgment, the instance case was well capable of being resolved in the manner contemplated in HKSAR v Wong Suet Hau (above).

Discount for a timely plea of guilty

For many years it has been recognised that a timely plea of guilty should be recognised by a discount from an otherwise appropriate sentence. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, [2016] 5 HKC 231, [2016] HKEC 190, the Court of Appeal restated the principle that a critical factor in exercising the discretion posed in a sentencing court is the timing of the plea. Here, the accused has pleaded guilty at the earliest possible moment and the reduction of sentence by reason of that is a discount of one-third.

Issues for consideration

The following issues arise for consideration in the present case.

(1) Fixing the starting point for the drugs in Charge 1, that is the trafficking charge.

(2) Fixing the starting point for the drugs in Charge 2, the possession charge.

(3) Whether any portion of the drugs for the trafficking charge should be treated as for the personal consumption of the accused and, if so, what adjustment to sentence for the trafficking charge should be made on that account.

Charge 1 - starting point

In relation to the ‘Ice’, the quantity in question in Charge 1 is 29.56 grammes. For that amount of drug, the appropriate starting point is 8 years and 1 month. As to the herbal cannabis, it seems to me that a term of imprisonment of 1 month is the appropriate starting point. In the circumstances, although it is within the same charge, the appropriate resolution is to fix a starting point which combines the two drugs and, accordingly, the starting point for Charge 1 is 8 years and 2 months.

Charge 2 - starting point

In relation to the possession charge, the amount of ‘Ice’ in question is 5.97 grammes and the cannabis in question, 0.43. For the ‘Ice’, I think the appropriate starting point is 3 months' imprisonment. The quantity of cannabis the subject of the possession charge is sufficiently small for it to be appropriate not to add to the sentence in respect of this charge. There is a latent use component in relation to the ‘Ice’. However, when viewed in the context of the overall circumstances and, in particular, the fact that on Charge 1 there is a possession of a substantial quantity of ‘Ice’ for unlawful trafficking. The issue with respect to ‘Ice’ in Charge 2 is more theoretical than real. The quantity of cannabis is so small that I do not see any issue with respect to latent use. Accordingly, I do not propose to enhance the sentence for this charge. Accordingly, the starting point on Charge 2 is 3 months' imprisonment.

Charge 1 - personal use component

The accused contends that the quantity of drugs in Charge 1 involves a component for personal use. As I have already noted, the authorities make the point imposing on the sentencing court a high degree of care to determine between genuine cases and cases which do not merit any consideration of that proposition. The context in which this is said is that the premises in which the drugs and the accused were found was a premises rented by him.

The circumstances in which the drugs were found carries with it a very strong suggestion that at least some of the drugs were intended for personal use. In particular, there is a component of personal use suggested by the paraphernalia found by the police which is consistent with the consumption of the dangerous drugs in the premises. Ms Yip for the prosecution properly accepts that it is difficult to resist the conclusion that some of the drugs may well have been for personal possession given the arrangements in the room.

With the finding of the other persons in the room it suggests that there was more than a significant element of sharing of the drugs in those premises. That said, it is not possible for me to say how much or what percentage of the quantity of drugs found in that room was for personal use. I am sure it was substantial. Nevertheless, the point made in many of the authorities about the implication of possession of part of the drugs in the possession of the accused for unlawful trafficking about possession being of itself a serious offence and that the court must be astute to assess the existence of a latent risk that the drugs would fall into the wrong hands is a point which is of the highest relevance in a case such as this.

In my judgment, the latent risk in respect of any such portion of drugs being for personal consumption is substantial in this case. The authorities recognise that in such a situation, a reduction in an otherwise appropriate sentence for trafficking in dangerous drugs might be between 10 per cent and 25 per cent. In an attempt to balance the factors which point in different directions, that is possession for personal consumption, seriousness of the offence and possession of the drugs and the latent risk which I assess to be substantial, I think a reduction of 15 per cent of the starting point on this account is an appropriate one.

In relation to Charge 1, the sentence after discount for personal use and the plea of guilty is 4 years and 7 months.

In relation to Charge 2, the appropriate sentence is 6 weeks. I order that 2 weeks of this sentence be served concurrently with the sentence on Charge 1, and 4 weeks of that sentence to be served consecutively. That, as I calculate it, makes a sentence of 4 years and 8 months overall and that is the sentence of the court.