HKSAR v. NG CHI MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.450
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one count of possession of dangerous drugs for the purpose of unlawful trafficking. That count was particularized as follows: that he on 6th October 1996, at the junction of Nelson Street and Portland Street, Mongkok, unlawfully trafficked in a dangerous drug, namely 27.33 grammes of a crystalline solid containing 25.23 grammes of methamphetamine hydrochloride, commonly known as "ice". He pleaded not guilty to that charge was found guilty after trial of the lesser charge of simple possession. He was sentenced to imprisonment for three years. He now seeks leave to appeal against that sentence.

2. On arrest, he had said to the arresting officer after caution:

"I understand. Sir, I bought the stuff for my consumption only, not for sale. ...... I got it from a male called 'Ah Man' at South Pacific Theatre. I could only see him at South Pacific Theatre. I could get the stuff when I saw him. Otherwise, I could not get my stuff."

3. When the counsel then appearing for him, Mr. Hoosen, commenced his mitigation, the following passage occurred:

"Mr. Hoosen: I have seen the reports on the defendant and they have also been explained to him. The important thing here is, I suppose, the fact that it's been determined that he is not drug dependent.

Court: That means the jury was wrong in convicting him of simple possession.

Mr. Hoosen: No, no. My Lord, it doesn't mean that.

Court: It must mean that, otherwise what were those drugs for?

Mr. Hoosen: My Lord, the drugs were 'Ice'.

Court: Yes. If he is not a drug addict, why 20-odd grammes of 'Ice'? The jury must have been misled by him because he misled the policeman, as a result that evidence was before the jury and therefore they convicted him of simple possession.

Mr. Hoosen: This examination took place on the -- after trial, some months after the incident occurred.

Court: He said to everyone that he has never been involved with drugs. You can see from the DATC -- background report. 'The defendant insisted that he had never come across heroin or any other drug.' "

4. An exchange between the judge and counsel, which occupies several pages of transcript, then followed. In the course thereof the judge exhibited considerable skepticism as to the correctness of the verdict. It is true that the reports from the Drug Addiction Treatment Centre and the Probation Service give rise to concern. In the latter the applicant told the probation officer that he had never taken any methamphetamine hydrochloride before and claimed that he was framed by the police. In the former he "insisted that he had never come across heroin or any other drugs". Nonetheless the interviewing officer stated that he "observed a sense of remorse".

5. These passages do cast some doubt upon the suggestion that the defendant was exhibiting a real sense of remorse.

6. The exchange during which the trial judge questioned the correctness of the jury's verdict was, in our view, unfortunate and should not have occurred. The trial judge when he came to sentence made it plain, however, that he was sentencing upon the basis of the offence for which the applicant was convicted. He said:

"Your counsel has said all that can be said on your behalf. 'Ice' is a hard drug which has to be treated seriously. In ways, it's more deleterious to its abusers and to society as a whole than heroin.

I have considered both the probation officer's report and the DATC report. In the DATC report, it was said that the defendant insisted that he never came across heroin or any other drug. In the probation officer's report, it stated at paragraph 4, 'He denied to have taking any methamphetamine hydrochloride before. Concerning his present offence, he claimed that he was framed up by the police. In addition, he denied to have any drug addiction.'

Mr. Hoosen, in mitigation, says that he earned $7,700 per month, and you spent $4,000- odd for the drugs found, and you're young and a first offender. Mr. Hoosen said that you tried 'Ice' only once and told me not to consider your habitual wayward behaviour.

In sentencing, I am in some difficulty. You said in no uncertain terms to the DATC officer and the probation officer that you had no drug addiction. You earned only $7,700 and yet you used no less than $4,000 to purchase 25.23 grammes of 'Ice'. You told police, when arrested, that you had the drugs for your own consumption - 25.23 grammes for someone, even taking it at its best, who had tried it just once.

But despite of the fact disclosed by you to the officers from the DATC and the probation officer, I have to sentence you according to the verdict of the jury. When sentencing, I have taken into consideration that you are a first offender and your young age. In view of the rather substantial amount of 'Ice' found, I took a starting point of three and a half years, but in view of the fact that you are a first offender and in view of your young age, I impose a sentence of three years' imprisonment."

7. The complaint as it now formulated is that the trial judge took too high a starting point and that he did not give a proper discount for plea. The judge was sentencing upon the basis of the offence of simple possession. Although he did not so state, it seems, given his starting point, that he must have been taking into account the latent risk factor. The argument advanced before us is that, even so, the starting point was manifestly excessive. It is further argued that the applicant, having indicated at all times that he was prepared to plead guilty to simple possession, was entitled to the customary one-third discount for plea. In our view the latent risk was a real one. The applicant had a relatively large quantity of ice which is a social drug and a very dangerous one. He is a young man who earns only $7,700 per month and there was, we are satisfied, a clear latent risk that some of the drugs might have been passed to others. Putting that, however, at its highest, we are satisfied, that three years would have been a proper starting point. We do not consider, although the applicant has exhibited some degree of lack of candor, that he has disentitled himself from the discount to be given for plea. We are satisfied that he should have one-third discount which will reduce the sentence to one of two years.

8. The application succeeds. The hearing of the application is treated as the hearing of the appeal and the sentence is varied from one of three years to one of two years.