HKSAR v. TSOI MAN CHUN

CACC 414/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2015

(ON APPEAL FROM HCCC NO. 23 OF 2015)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against the sentences of imprisonment imposed on him by Zervos J on 24 November 2015, following his pleas of guilty on 17 November 2015 to three counts on an indictment. By Count 2, it was alleged that on 18 May 2014, at the ground floor of premises in Wong Tai Sin, the applicant had unlawfully trafficked in a dangerous drug, namely 2.62 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Count 3 alleged that, at the same time and place, the applicant unlawfully possessed a dangerous drug, namely 0.28 grammes of methamphetamine hydrochloride (‘Ice’), contrary to section 8(1)(a) and (2) of the ordinance. By Count 5, it was alleged that, together with his son, at their home in Kowloon Bay, the applicant unlawfully trafficked in 12.34 grammes of Ice and 2.55 grammes of ketamine.

2.  The judge sentenced the applicant to 16 months’ imprisonment for Count 2, 4 months’ imprisonment for Count 3 and 4 years and 4 months’ imprisonment for Count 5.  He ordered that all those sentences of imprisonment should be served consecutively.  Accordingly, the total sentence imposed on the applicant was 6 years’ imprisonment.

The facts

3.  The applicant was intercepted by a party of police officers in the early afternoon on 18 May 2014.  He was found to be holding in his hand 19 packets of what turned out to be the heroine hydrochloride the subject of Count 2.  Having been cautioned the applicant said “I sell the white powder for someone to make a living.”  The Ice, the subject of Count 3, was found in a plastic bag in a pocket of his trousers.  Having been cautioned in respect of that discovery, the applicant said “Sir, the bag of dangerous drugs Ice is for my own consumption not a trafficking. Just believe me, will you.”  The applicant said that he consumed Ice at his residence, the address of which he provided.

4.  On the afternoon of 19 May 2014, police officers gained entry to those domestic premises in an estate at Wong Tai Sin with keys found in the possession of the applicant.  Tsoi Kin Hung, the applicant’s son and co-defendant at trial, was found on the premises.  In his bedroom the police discovered the Ice and ketamine the subject of Count 5.  In the living room, two makeshift hookahs and other paraphernalia for consuming Ice were found.  Having been cautioned, the applicant said “The dangerous Ice is mine.”  In a subsequent video-recorded interview, the applicant claimed that the Ice found on the premises was for his own consumption.

Mitigation

5.  In mitigation Mr Paul Leung asserted in respect of Count 5 that “... the defendant’s position has always been that they were for his own consumption”.[1]  In face of the judge’s observation that the applicant had pleaded guilty to unlawful trafficking, the following interchange ensued between counsel and the judge:[2]

“MR LEUNG: However, he let his son help himself to it. So to some extent, he was sharing it with his son. It was on that basis he tendered his plea of guilty to that particular count.

COURT: Well, it’s not apparent from the facts.

MR LEUNG: No, it is not.

COURT: Are you asserting now that the basis on which he’s entered a plea of guilty was trafficking where he’s -- he and his son are consuming the drugs?

MR LEUNG: Yes, he allow his son to consume the drugs.

COURT: So that’s a form of trafficking, is it?

MR LEUNG: It is, yes.

COURT: Right, so you’re saying that because I’ve allowed my son to use these drugs, I’m therefore dealing in the drugs and therefore trafficking. That’s what you’re saying?

MR LEUNG:  That is the basis he plead (ed) guilty.”

6.  Subsequently, Mr Leung returned to the issue of the appellant’s self consumption of the dangerous drugs the subject of Count 5:[3]

“ MR LEUNG: Yes. But my Lord, the basic position is this. He was giving drugs to his son, but it remains the fact that a large proportion of the drugs was for his own consumption and I would urge your Lordship to have regard to that.

COURT: So are you urging me to factor that in, and give some downward adjustment, because there is self-consumption?

MR LEUNG: That is what I would invite your Lordship to do.

COURT: Are you saying that the drugs that were in the bedroom of the son were his drugs or were they jointly possessed and owned by them?

MR LEUNG:  Well, I suppose in law, it is a case of joint possession.”

7.  After Mr Leung had re-asserted his contention that a “large proportion” of the dangerous drugs was for the self consumption of the applicant, the judge said “I will bear in mind what you’ve said about self-consumption.”[4]

Reasons for sentence

8.  In sentencing the applicant, the judge noted that he was 60 years of age and had many previous convictions for offences in respect of dangerous drugs.  He said that at the time of the commission of the offences that it appeared that the applicant had a “serious drug addiction problem which had lasted 20 years.”

Starting point for sentence

9.  Having adverted to the guidelines set out in the judgment of this Court in the Queen v Lau Tak Ming,[5]the judge stipulated a starting point for sentence for Count 2 of 24 months’ imprisonment.  Having observed that the amount of Ice the subject of Count 3 was “very small”, and that it was accepted that it was for self-consumption, the judge stipulated a starting point for sentence of 6 months’ imprisonment.

10.  In respect of Count 5, the judge noted that it concerned two different kinds of dangerous drugs, namely 12.34 grammes of Ice and 2.55 grammes of ketamine.  The judge noted that application of the guidelines articulated in the judgment of this Court in the Attorney General v Ching Kwok Hung [6] in respect of unlawful trafficking in Ice resulted in a sentence after trial of 7 years and 2 months’ imprisonment in respect of the Ice only.  The judge said that application of the guidelines for sentencing for unlawfully trafficking in ketamine, articulated in the judgment of this Court in the Secretary for Justice v Hii Siew Cheng [7], resulted in a sentence of 2 years and 4 months’ imprisonment after trial.

11.  The judge determined that the ‘combined approach’ to sentence, rather than the ‘individual approach’, was appropriate in the circumstances.  The combined approach required the judge to have regard to the appropriate sentence for unlawfully trafficking in the more serious dangerous drug, with some enhancement of sentence being made to reflect the unlawful trafficking in the less serious dangerous drugs.  In the result, the judge stipulated a starting point for sentence of 7 years and 3 months’ imprisonment for Count 5.

Discount: self-consumption

12.  Of the issue of self-consumption in respect of the dangerous drugs the subject of Count 5, the judge said:[8]

“ I also accept that some of the Ice would have been used for self consumption.  That was evident by the smoking equipment for drugs, including two Ice pots, which were found in the cabinet in the living room.  I will therefore make an adjustment to the sentence to reflect the fact that not all the drugs were for trafficking ...”

13.  Nevertheless, he went on to observe that that there was a latent risks that the dangerous drugs might be abused by others:[9]

“ ...there was a risk that some of the drugs might have found their way into the hands of others, bearing in mind the array of drug smoking equipment that was found in the cabinet of the living room and the fact that people would come into the flat from time to time.”

Discount

14.  The judge said that to reflect the applicant’s pleas of guilty he afforded the applicant a discount of one-third from the sentences stipulated as the starting points for sentence.  The resulting sentences were: Count 2 - 16 months’ imprisonment; Count 3 - 4 months’ imprisonment; and Count 5 - 4 years and 8 months’ imprisonment.

Totality

15.  Having said that he had regard to the principle of totality, the judge determined that the offences alleged against the applicant in Counts 2 and 3 “were distinct”, one of unlawful trafficking in heroin on the other of unlawful possession of Ice.  He determined that the combined sentence, namely 20 months’ imprisonment, was not excessive.

16.  On the other hand, noting that the resulting aggregate of the sentences for all three counts was 6 years and 4 months’ imprisonment, having regard to the principle of totality, the judge determined to reduce the sentence to 6 years’ imprisonment.  He said the reduction was to be achieved by reducing the sentence on Count 5 to 4 years and 4 months’ imprisonment.

Sentence

17.  In result, the judge sentenced the applicant to 16 months’ imprisonment on Count 2, 4 months’ imprisonment on Count 3 and 4 years and 4 months’ imprisonment on Count 5, which sentences he ordered to be served consecutively.

Grounds of appeal against sentence

18.  In the grounds of appeal against sentence, Mr Whitehouse submitted that the judge erred in reducing the starting point taken for sentence in Count 5, to take into account the effect of self-consumption of some of the Ice, by only 3 months’ imprisonment.  He said that in the judgment of the Court in HKSAR v Chow Chun Sang [10]it was suggested that the discount for that factor was in the range of 10% to 25% of that taken as the starting point for sentence.  Here, the discount was about 3% only.

19.  Next, Mr Whitehouse submitted that the judge erred in ordering that the sentence of 4 months’ imprisonment imposed in respect of Count 3, namely for unlawful possession of 0.28 grammes of Ice, be served consecutively to the sentence of 16 months’ imprisonment imposed in respect of Count 2, for unlawful trafficking in 2.62 grammes of heroin.  He submitted that the Ice the subject of Count 3 came from the same source as the Ice the subject of Count 5.  In such circumstances, he submitted the sentence of imprisonment imposed in respect of Count 3 ought to have been ordered to be served concurrently to the other sentences of imprisonment.  In making a submission, he relied on the judgment of this Court HKSAR v Law Pun Sing [11].

20.  In that case, the applicant was confronted by police officers as he left some premises.  He was found to be in possession of a small amount of ketamine and cocaine and he pleaded guilty to possession of those dangerous drugs.  However, about 873 grammes of ketamine and about 33 grammes of cocaine were found in the premises and he pleaded guilty to unlawful trafficking in those dangerous drugs.  Determining that the offences were of a different nature, the judge ordered that 6 months’ imprisonment of the sentence of 10 months’ imprisonment imposed for the unlawful possession offence was to be served consecutively to the sentence of 10 years and 4 months’ imprisonment imposed for the offence of unlawful trafficking.  This Court said that where the dangerous drugs obviously came from the same source, namely the premises in which the applicant had been present, the Court ought to have regard to the total amount of the drugs.  The small amounts of the dangerous drugs the subject of the possession charge would not have affected the calculation of sentence for the offence of unlawful trafficking.  Accordingly, this Court quashed the order that 6 months of the sentence of 10 months’ imprisonment be served consecutively, ordering in its place that the whole sentence to be served concurrently to the sentences of imprisonment imposed for the offence of unlawful trafficking.

The respondent’s submissions

21.  For the respondent, Mr Andrew Li opposed the application for leave, but did not object to the application being determined on the papers.

22.  Mr Li acknowledged that in the judgment of this Court in HKSAR v Chow Chun Sang this Court said that, in sentencing in cases of unlawful trafficking in dangerous drugs, where it was suggested that part of the dangerous drugs were for self-consumption, the discount to be afforded for that factor of mitigation, depending on the circumstances, should fall between 10% and 25% of the basic starting point taken for sentence.

23.  Mr Li invited the Court to note that, although the judge had accepted that part of the Ice was for self-consumption by the applicant, the quantity to be used in self-consumption was not determined.  He submitted that the judge was correct to have regard to the latent risk that the Ice and ketamine would be unlawfully trafficked by the applicant to others.  Further, the applicant had an appalling criminal record, including an offence of unlawfully trafficking in dangerous drugs, for which he had been sentenced to 20 months’ imprisonment on 18 January 2013.  So, the applicant committed these offences soon after having been released from prison.  Also, the judge was entitled to have regard to the fact that the applicant admitted providing dangerous drugs to his son.  That was an aggravating factor in the commission of the offence.  Mr Li submitted that the judge could have adopted a higher starting point for sentence for Count 5 then he did.

24.  Finally, Mr Li submitted that, having regard to the principle of totality of sentence, the judge had afforded the applicant a discount of 4 months’ imprisonment from the sentence of imprisonment of 6 years and 4 months’ imprisonment he would otherwise have imposed.  He achieved the result by reducing the sentence imposed in respect of Count 5 by 4 months’ imprisonment from that which he would otherwise have imposed.  So, Mr Li contended that the applicant had been afforded a discount of a total of 7 months’ imprisonment in respect of Count 5, in addition to the one-third discount.  That, he submitted, was a discount of 8% from that taken as a starting point for Count 5.

25.  Mr Li acknowledged that in circumstances where a defendant was convicted of possession only of dangerous drugs at one place, for example on his person, but convicted of unlawfully trafficking in the other dangerous drugs elsewhere, this Court said that regard was to be had as to whether there was a nexus between the offences.  He acknowledged that in HKSAR v Castano Arango Jose Reinel [12] this Court quashed the judge’s order sentencing the applicant to 2 months’ imprisonment for possession of 9.57 grammes of cannabis in herbal form, which sentence was ordered to be served consecutively to two sentences of 15 years and 4 months’ imprisonment imposed in respect of two counts of unlawfully trafficking in a total of 1,294 grammes of cocaine hydrochloride.  In its place, this Court imposed a sentence of $10,000, in default of payment of which it fixed a sentence of two weeks’ imprisonment, which sentence was to be served concurrently to the other terms of imprisonment.

26.  However, Mr Li submitted that there was no evidence that the Ice, the subject of Count 3, came from the same source as the Ice the subject of Count 5.  Given that the applicant admitted that he consumed Ice on the premises, there was no reason for him to take the Ice found in his trouser pocket away from the premises.

A consideration of the submissions

27.  In the judgment of this Court in HKSAR v Chow Chun Sang,Yeung VP noted that the fact that all or part of the dangerous drugs in which a defendant trafficked unlawfully was for self-consumption “...is recognised as a mitigating factor (see, for example, R v Chan Mung-lung [1992] 2 HKCLR 127 and R v Chung Kam Fai [1993] HKC 42).”

28.  Having noted that in those cases the defendants had been sentenced on the basis that “the drugs were only for their consumption”, Yeung VP referred to the judgment of this Court in HKSAR v Cheuk Kin Man [13], in which the applicant claimed that two-thirds of the 15.7 grammes of heroin in which he trafficked unlawfully was for his own consumption.  There, this Court allowed an application for leave to appeal against a sentence of 3 years and 7 months’ imprisonment and imposed a sentence of 3 years’ imprisonment.  This Court determined that the appropriate starting point for sentence, considerations of self-consumption aside, was 5 years and 5 months’ imprisonment.  In the judgment of this Court, Tang VP, as Tang PJ was then, said:[14]

“ ...in general circumstances, even if part of the dangerous drugs are for self-consumption, an appropriate discount should be given when passing sentence, but this would not be substantial, because there is also the latent risk that these dangerous drugs intended for self-consumption may be trafficked.”

29.  So, the discount afforded to the applicant having regard to the factor of self-consumption was 11 months’ imprisonment from that taken as the starting point for sentence, or about 17%.

30.  In the judgment of this Court in HKSAR v Chow Chun Sang, Yeung VP said:[15]

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.

  As pointed out by the Judge, possession of “ice” for personal consumption is also an offence in itself. Furthermore, we must not overlook the latent risk that the portion of the drug intended for the Appellant’s own consumption may be given or sent to others.”  [Italics added.]

31.  Then, Yeung VP noted that the appellant had committed the offence whilst he was a wanted person and that he had previous convictions in respect of possession of dangerous drugs.  Of the discount afforded to that appellant, Yeung VP said:[16]

“ Having regard to self-consumption by the Appellant of most of the “ice” involved, the Judge reduced the starting point from 5 years and 10 months to 5 years and 3 months. We agree that this 7-month discount (i.e. approximately 10%) is on the conservative side. Nevertheless, in our judgment, the Judge has not erred in principle, nor is the final sentence of 3 years and 6 months on the first charge manifestly excessive.” [Italics added.]

32.  As was made clear in the judgment of the Court in HKSAR v Tam Ling Yuen [17]the reference to “all or part of the drugs are intended for the trafficker’s own consumption” was to all or “a significant proportion of the drugs.”  That being the phrase used in the judgment of this Court and HKSAR v Wong Suet Haul [18].

33.  As noted earlier, in the instant case the judge took no issue with the submission made by counsel for the applicant that a “large proportion” of the dangerous drugs the subject of Count 5 was for self-consumption.  Indeed, he said that he would bear those submissions in mind.  Nevertheless, in sentencing he said that, having regard to the latent risk, that the dangerous drugs would be unlawfully trafficked by the applicant, the discount that he afforded him was slight.  In the result, he afforded the applicant a discount of 3 months only from the initial starting point taken for sentence for Count 5, of 7 years and 3 months’ imprisonment, or 3.45%.

34.  As Mr Li acknowledged, and as is clear from the transcript of the mitigation, the judge was not referred by counsel specifically to the judgment in HKSAR v Chow Chun Sang.

35.  In my judgment, the fact that the judge reduced by 4 months’ imprisonment the sentence to be imposed in respect of Count 5, thereby giving effect to his determination as to totality, is irrelevant to the primary submission that the judge did not afford the applicant the appropriate discount for sentence having regard to the issue of self-consumption.  Similarly, irrelevant to that issue is the fact that the judge might have stipulated a higher starting point for sentence on Count 5.

36.  I am satisfied that a reasonably arguable ground of appeal is raised in respect of the issue of the appropriateness of the discount in sentence afforded to the applicant in respect of Count 5 having regard to the issue of self-consumption.

37.  In the judgment of this Court in HKSAR v Castano Arango Jose Reinel, McWalters JA cited with approval a passage from the judgment of this Court in HKSAR v Touray Edrisa [19]that the judge in the latter case fell into error:[20]

“ ...in determining that, given the offence of unlawful possession was different in nature to that of unlawful trafficking in a dangerous drug, their separate treatment required a part of the sentence imposed for unlawful possession of the dangerous drug to be consecutive to that imposed in respect of the unlawful trafficking.”

38.  There was no dispute that in the instant case the applicant was addicted to and abused Ice.  It was submitted in mitigation that he was unlawfully trafficking in the heroin the subject of Count 2 to fund that addiction.  No submission was made and the judge made no finding as to the provenance of the Ice, the subject of Count 3, found in the applicant’s possession.  On the one hand, in the first video record of interview the applicant said that he had purchased the Ice found on his person for $100.  On the other hand, in his second video record of interview the applicant made no mention of the Ice found on his person.  He said that dangerous drugs found in the premises had been delivered to him downstairs, following his telephone order.  He made two such orders for months and paid $1,000 for half an ounce.

39.  Having regard to all the circumstances, I am satisfied that is reasonably arguable that the judge erred in ordering that the sentence of 4 months’ imprisonment imposed in respect of Count 3 be served consecutively to the other sentences of imprisonment.

Conclusion

40.  Accordingly, I grant the applicant leave to appeal against sentence on both the grounds advanced on his behalf.

[1] Appeal Bundle, page 65 A.

[2] Appeal Bundle, page 65 D-M.

[3] Appeal Bundle, page 66 O-U.

[4] Appeal Bundle, page 67 J-P.

[5] Queen v Lau Tak Ming [1990] 2 HKLR 370.

[6] Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

[7] Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.

[8] Reasons for Sentence, paragraph 14.

[9] Reasons for Sentence, paragraph 14.

[10] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 (English translation of the original Chinese judgment).

[11] HKSAR v Law Pun Sing (CACC 196/2011; unreported, 7 October 2011).

[12] HKSAR v Castano Arango Jose Reinel (CACC 174/2011; unreported, 18 December 2014).

[13] HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

[14] HKSAR v Cheuk Kin Man, paragraph 12.

[15] HKSAR v Chow Chun Sang, paragraphs 19-20.

[16] HKSAR v Chow Chun Sang, paragraph 22.

[17] HKSAR v Chow Chun Sang, paragraph 22.

[18] HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, at paragraphs 26-7.

[19] HKSAR v Touray Edrisa (CACC 124/2010; unreported, 26 August 2011).

[20] HKSAR v Castano Arango Jose Reinel, paragraph 22.