HKSAR v. McCALL HOWARD KENNETH AND ANOTHER

HCCC 446/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 446 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Howard Kenneth McCall and Lam Aroon, the 1st and 2nd accused respectively, were arraigned on the indictment containing three counts.

The 1st count against the 1st accused alleged trafficking in a quantity of methamphetamine hydrochloride, usually referred to as 'Ice'. He pleaded not guilty to that count but tendered a plea of simple possession in full satisfaction of this count on the indictment. The prosecution was not prepared to accept the lesser plea. He was acquitted after trial on the trafficking charge and convicted on the alternative charge of possession of dangerous drugs.

The 2nd count on the indictment, which is against both accused, alleges trafficking in dangerous drugs, including 'Ice', a small amount of cocaine and cannabis resin. For this charge, both accused pleaded not guilty but tendered pleas of guilty to simple possession in full satisfaction of this count on the indictment. The prosecution was not prepared to accept the lesser plea. Both were acquitted by the jury of the trafficking charge and were convicted of the possession of dangerous drugs charge.

In relation to the 3rd count, which is against the 1st accused, the indictment alleged trafficking in a dangerous drug, namely cocaine. The accused was acquitted of this charge by the jury.

It falls therefore to this court to sentence the accused as follows. In respect of the 1st accused on conviction on Count 1 for the alternative of possession of dangerous drugs, possession of 13.1 grammes of 'Ice', the 1st accused was seen walking in Portland Street in Mongkok and had the drugs in his jacket pocket. The drugs were revealed following a stop and search procedure.

In respect of the 1st and 2nd accused on the conviction for the alternative of possession of dangerous drugs in respect of Count No 2, possession of 22.25 grammes of 'Ice', 0.45 gramme of cocaine and 18.61 grammes of cannabis resin, these drugs were found at premises in Hennessy Road in Causeway Bay, which is, on the evidence, the residence of both the 1st and 2nd accused. I will have more to say in due course about the appropriate attribution of portions of the drug which is the subject of this count when I examine aspects of the facts in more detail later in this judgment.

A person who is convicted on indictment of possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance, is liable, on conviction upon indictment, to a fine of $1 million and, subject to section 54A, to imprisonment for 7 years. 54A has been satisfied in that there are now reports in respect of both accused. Neither recommend Drug Addiction Treatment Centre. Those reports have been accepted by counsel for both accused and the analysis in those reports is an extremely helpful one, both as to the position with respect to drugs and as to their background.

Both accused pleaded guilty to possession of dangerous drugs on arraignment for the charges of trafficking in dangerous drugs. They were convicted after trial, but it was made plain to the jury that this was their position. This occurred in two ways. First of all, at the request of defence counsel, I informed the jury of this position at the outset of the case. Further, the testimony of both accused made their position clear in this regard.

During the committal proceedings on 4 November 2016, both accused indicated they were prepared to plead to possession of a dangerous drug but not guilty to trafficking in relation to the charges levelled against them, which are now, with minor variation, Counts 1 and 2.

In both cases, the prosecution indicated that such pleas were not accepted. That has been the consistent position of the parties ever since and was reflected in the pleas on arraignment.

In all the circumstances, both accused have indicated their preparedness to plead guilty to possession of dangerous drugs since the earliest practicable opportunity.

The position of the courts of Hong Kong in relation to the treatment of a plea to a lesser offence in these circumstances has been well established since R v Tam Wing Ching & Others CACC 116/1978. The Court of Appeal dealt with sentencing appeal in which the appellants had, on arraignment on a charge of murder, offered to plead guilty to manslaughter in full satisfaction of the indictment. That was rejected by the prosecution. They were convicted of manslaughter. Pickering JA for the court observed:

“There is, however, a different but important consideration which appears to have been overlooked by the trial judge and that is that this appellant wished to plead guilty to manslaughter but this was met with a refusal by the Crown to entertain such a plea. Had he been permitted to plead guilty to manslaughter, there can be no doubt that in assessing sentence, the judge would have given credit for the plea of guilty and we do not think it is just he should be deprived of that credit purely because he was not allowed to plead guilty.”

That was followed, at least to some degree, by the Court of Appeal in R v Lee Yuk Wah & Another [1991] 2 HKC 97. In that case, the position was similar to Tam Wing Ching & Others in terms of the plea tendered by one of the persons accused of murder. For reasons which will become apparent shortly, this was D2. However, the Court, Kempster, Power and MacDougall JJA, was not prepared to give what might be considered a full discount for the plea that was tendered. Power JA said:

“We are satisfied that some weight should be given to D2’s preparedness from the outset to plead guilty to manslaughter and that it would also have been proper to put in the balance the fact of his clear record. Because of these factors, the trial judge should have distinguished between D2 and D3. We are satisfied, therefore, it was appropriate to order that D2’s sentence be varied from one of 10 years to 9 years.”

On that premise, D2 appeared to have received a discount of about 10 per cent.

A similar approach is evident in HKSAR v Francisco [2000] 3 HKLRD 688, 4 HKC 37 which has a slightly more complex set of facts. The accused was arraigned on a charge of murder to which he offered to plead guilty to manslaughter. That offer was not accepted by the prosecution and at trial, the accused ran a defence which was inconsistent with a manslaughter plea. The trial judge, in sentencing the accused for manslaughter, allowed a reduction of 25 per cent for the tendered plea. Leong and Wong JJA observed, in the Court of Appeal:

“It would appear that had the applicant not advanced self-defence at trial which was inconsistent with the offer of the manslaughter plea, he would have been entitled to the full one-third discount.”

Finally, in HKSAR v Sze Kwan Lung & Others FAMC 1/2004, the Appeal Committee of the Court of Final Appeal, Bokhary PJ, Chan PJ and Ribeiro PJ, appears to have made the same kind of distinction as was made in Francisco. Bokhary PJ said:

“Sometimes a defendant who faces a murder charge offers to plead guilty to manslaughter. If his offer is rejected by the prosecution, he has a choice. He can fight the case on the basis he is not guilty of murder but guilty of manslaughter, or he can fight the case on the basis he is not guilty of any homicide.

There is a considerable difference between these two courses. If the defendant is convicted of manslaughter after pursuing the first course, the full one-third discount of sentence for a guilty plea is normally given, but if he is convicted of manslaughter after pursuing the second course, something less than the one-third discount is normal.”

These principles can be seen to have been applied in HKSAR v McCall CACC 81/2006 and HKSAR v Singh CACC 96/2006. English and Australian authority would support this position.

There are no tariffs for possession of dangerous drugs. The circumstances in which this offence may occur are many and varied. In respect of both accused, the critical drug for sentencing is 'Ice'. As will shortly appear, while there are quantities of the other two drugs involved, cocaine and cannabis resin, which are not insignificant in terms of quantity, they pale into comparative insignificance when compared with the quantity of 'Ice' involved.

The tariffs for trafficking in quantities the subject of Counts 1 and 2 provide 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 been an 'Ice' trafficking case, two bands of the oft-cited tariff in Lau Tak Ming would have been highly pertinent.

The relevance of the trafficking guidelines in sentencing for possession of dangerous drugs was recognised by the Court of Appeal in Secretary for Justice v Ng Wing Yi CAAR 4/2003. The basis of that relevance is that such guidelines do not themselves dictate a mathematical calibration downwards for possession simpliciter but they illustrate the seriousness with which the drug is now treated, a recognition of the prevalence of the drug and of its dangers to the consumer.

Plainly, there is a recognition in the authorities which provide guidelines in respect of trafficking of the seriousness of the problem of 'Ice' and that cannot be ignored. The overall effect of the authorities reveals that 'Ice' is a savagely addictive drug and its addictive nature is cruelly persistent for those who seek to rid themselves of the addiction. The consequences of its ingestion are very serious for the user and the community. Small wonder it is that our courts have consistently said that 'Ice' is either as bad as, or at least as bad, as heroin.

There are a multitude of decisions as to the appropriate sentence for possessing dangerous drugs and I intend to refer to only a selection of them. Perhaps the best starting point is HKSAR v Mok Cho Tick [2001] 1 HKC 261. In that case, the Court of Appeal was asked to consider the possession of 15.7 grammes of 'Ice'. In that case, Stock JA observed 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 a starting point to be higher than it otherwise would be.”

The court adopted the starting point of 18 months which had to be enhanced by 12 months for the risk factor inherent in the possession of such a quantity of dangerous drugs. The enhancement topic is discussed in a short while. That range has to be understood against the examples cited by Stock JA which were substantially greater in terms of weight of narcotic in the case he was considering and, for the most part, the case at hand.

In HKSAR v Singh CACC 96/2006, the Court of Appeal was faced with sentencing an addict in possession of 6.82 grammes of 'Ice'. The court considered that a starting point of 15 months was appropriate and enhanced the sentence by 12 months for latent risk. Further, in HKSAR v Chan Tai Wah [2012] 4 HKLRD 674, the drug involved was 5.47 grammes of 'Ice'. Seizure followed a search in a room in which the appellant resided. For this, the Court of Appeal considered a sentence of 15 months was appropriate. Although the drug involved was ketamine, it is also relevant to consider the sentence in Secretary for Justice v Ng Wing Yi CAAR 4/2003, to which I have made reference already.

The Court of Appeal recognised that for the quantities of ketamine involved in that case, about 200 grammes, a substantially higher sentence than the usual 12 to 18 months recognised in the authorities was called for. For this amount, the Court of Appeal considered that a starting point of 2½ years was warranted before enhancement for latent risk. In many respects, this case is a clear demonstration of the Court of Appeal having an intention to apply the second passage of the judgment of Stock which I have quoted above in HKSAR v Mok Cho Tick [2001] 1 HKC 261.

Since at least 1994, the courts of Hong Kong have recognised, in the context of possession of dangerous drugs, that there is a risk of those drugs being disseminated. The phrase used, perhaps inaptly, to describe this is ‘latent risk’. This was first discussed in Chiu Hung Wong & Others [1994] 1 HKCLR 184, para 22-25 by Silke VP.

More recently, the latent risk factor was recognised in HKSAR v Minney [2011] 3 HKLRD 556, 4 HKC 136 and HKSAR v Chan Tai Wah [2012] 4 HKLRD 674. This enhancement is not merely for having a significant quantity of drugs. It is not to be employed as a form of disguised sentencing for trafficking in the drug the subject of the charge. In Minney, Fok JA observed:

“In our opinion, there can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of these drugs might end up being redistributed and finding their way into the hands of others apart from the offenders. That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but simply reflects the fact that the quantity and circumstances of their possession are such as to pose a risk to society.”

Fok JA later added:

“It is the real risk of dissemination of drugs which the courts are looking to deter by this sentencing policy and we see nothing objectionable or contrary to policy or to the presumption of innocence in a sentencing policy that seeks to protect the public against a real risk to which the circumstances of an offence give rise. It is not a question of punishing a person for a crime he has not committed. It is not a question of punishing him for a crime he may commit. It is a question of punishing him for the crime which he has committed, taking into account the circumstances of its commission and the dangers to society which those circumstances create.”

The Court of Appeal in Minney, added two cautionary observations. Where a court is considering the enhancement of sentence on the basis of latent risk, those representing the accused must be notified and, two, the judge is not to sentence for unproved trafficking, namely, an unproved actual intent to traffic.

It is self-evident 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. In the first stage, the identification of the starting point is the identification of the starting point for the offence; the second stage of that process, the assessment of latent risk; following that, the third stage involves an adjustment for any relevant discount.

Evaluation

The 1st count involves 13.1 grammes of 'Ice'. The 2nd count involves 25.25 grammes of 'Ice', 0.45 grammes of cocaine and 18.61 grammes of cannabis resin. Although I fully respect the jury’s verdict, I am not satisfied beyond reasonable doubt that either accused should be sentenced on the basis of the manner in which the matter was put by the prosecution, that is, that there was a common pool of drugs available.

The case for the 1st accused and the 2nd accused was that the drugs that were found in the Hennessy Road premises were owned by or attributable to different accused. I think the evidence was that the net effect of the testimony of both accused was that the 2nd accused owned or could be attributed to Exhibit P5, 0.14 grammes of a mixture containing 0.7 grammes of cocaine; P6, 0.56 grammes of a mixture containing 0.55 gramme of 'Ice'; P8, 9.92 grammes of a mixture containing 9.81 grammes of 'Ice'; and P13, 2.25 grammes of cannabis resin which were attributable to the 2nd accused.

The 1st accused could be attributed to Exhibit P4, 0.5 grammes of a solid containing 0.38 grammes of cocaine; P7, 1.42 grammes of a crystalline solid containing 1.40 grammes of 'Ice'; P9, 12.5 grammes of a solid containing 12.2 grammes of 'Ice'; P10, 1.31 grammes of a crystalline solid containing 1.29 grammes of 'Ice', 2.71 grammes of cannabis resin; and P12, 13.65 grammes of cannabis resin.

In addition, there were some dangerous drug traces found on Exhibits 16 and 17 but I do not propose to take those into account for the purpose of sentence.

There was a reasonable possibility that the drugs were split up into drugs for the 1st accused and drugs for the 2nd accused in accordance with their testimony. I make no findings as to whether what the accused said as to the location of the drugs is true. For the avoidance of doubt, the implication is not that I do not believe the testimony of the relevant police officer as to where he says the drugs were found. His version is not inconsistent with the version of the distribution of the drugs, or the attribution of the drugs, more accurately.

In short, that issue remains unresolved and is not of any moment for sentencing in this case. On that premise, the 1st accused had in his possession in Hennessy Road, 0.38 grammes of cocaine, 14.91 grammes of 'Ice' and 16.36 grammes of cannabis resin. The 2nd accused would therefore have had 0.07 grammes of cocaine, 10.36 grammes of 'Ice', and 2.25 grammes of cannabis resin.

The 1st accused was born in the United Kingdom in 1964 and has attained qualifications in aspects of the building and construction trade. He came to Hong Kong in 1994 and worked in various endeavours in building and construction. He was convicted of the possession of dangerous drugs in 2003 and fined $5,000. In 2006, he was convicted of the possession of dangerous drugs and trafficking in dangerous drugs. The overall sentence he received was one of 8 years.

At the time of his arrest and for about four years prior to that offence, he was living with the 2nd accused in the premises at Hennessy Road. He was, I accept, deeply addicted to 'Ice'. His history of drug taking and addiction is recounted in depressing detail in the DATC report.

Since his arrest, the 1st accused has been in custody and the DATC report expresses the view that, based on the medical examination, clinical observations and abstinence from drugs brought about by the circumstances of his remand in custody from the date of arrest, he is no longer drug-dependent. Accordingly, the report expresses the view that he is not suitable for admission to a Drug Addiction Treatment Centre.

However, the report reveals that the 1st accused is recorded as expressing, in part 8 of that report, that he has learned a hard lesson from his recent experience and he hopes to stay away from drugs in the future. I hope that is right because, at his age and in his circumstances, a relapse would present very bleak prospects.

The 2nd accused was born in Thailand in 1969. From the background inquiries in the Drug Addiction Treatment Centre Suitability Report, it appears that she completed schooling until she dropped out of school due to financial difficulties at age 15. Since then she was worked in various ways.

While working in Bangkok, she met a Hong Kong man whom she married in 1992. The union was blessed with a daughter but the marriage declined, resulting in their separation in 2002. It appears that she became addicted to 'Ice' in about 2010. She met the 1st accused something of the order of four years ago and they have lived together ever since.

The 2nd accused continued her addiction to 'Ice' until her arrest in 2015. The DATC report reveals that she is no longer a drug-dependent and, accordingly, her admission to the Drug Addiction Treatment Centre is not recommended. I am informed that the 2nd accused has made arrangements to live with her daughter in Yuen Long. The evidence at trial demonstrated the high level of concern on the part of the daughter for her mother. I am sure that this will continue.

I suspect, indeed, that the only positive thing that could be said to have come out of her incarceration since December 2015 is the likelihood that she has broken the cycle of addiction into which she fell. This is a matter of great encouragement, although anyone even with the most superficial knowledge of the insidious nature of 'Ice' realises that her struggles in this regard are probably by no means over.

Disposition

Taking account of the foregoing together with the very helpful submissions of counsel, and that includes their written submissions, I think the appropriate sentences are as follows.

1st Accused

The possession proved against the 1st accused in Count 1 was a different location and some hours before the possession proved against him for Count 2 on the indictment. The quantities are within limits of approximately the same order of magnitude. In relation to the 2nd count, the 1st accused has to be sentenced for small quantities of cocaine and cannabis resin to be attributed to the 1st accused in accordance with the analysis I have outlined above.

The sentencing approach which is appropriate is to aggregate the narcotic and sentence for the total on each count to make the sentences concurrent, and that is on the authority of the Court of Appeal in HKSAR v Wan Lau Mei [2014] 4 HKC 75 para 27-30. In HKSAR v Mok Cho Tick [2001] 1 HKC 261, the Court of Appeal held that the normal range of sentence for 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. However, as was pointed out in that decision, larger quantities might attract greater sentences.

In relation to the other drugs found at Hennessy Road which can be attributed to the 1st accused, I would add a sentence of 2 months’ imprisonment to the notional starting point in relation to the 2nd count. On that premise, the appropriate starting point for both counts is 20 months.

The latent risk in the possession of two quantities of 'Ice' I assess to justify an enhancement of the sentence on each count to be 12 months. There is a theoretical latent risk in respect of the other two drugs found at Hennessy Road and attributable to the 1st accused, but I judge that to be so miniscule as not to be worthy of consideration.

The dominant reason for the assessment of latent risk to be at the level that I have assessed it to be is essentially the quantity of 'Ice' involved. That involves an acceptance that the accused is an 'Ice' addict and the risk has been assessed against that background.

Applying the three-stage test recognised in the authority, the position at stage 2 is 32 months. In my judgment, the 1st accused is entitled to a discount of one-third. The offer to plead guilty in respect of the charges in respect of which he was eventually convicted. The offer was, as I have found, made at the earliest practicable moment on that premise.

The position at the end of the third stage of the analysis is a sentence of 21 months and that is the sentence of this court. The consequence is that the 1st accused should be immediately released.

2nd Accused

The dominant concern in the possession of drugs on the part of the 2nd accused is the 'Ice'. In my judgment, the appropriate sentence for the quantity of 'Ice' found in her possession is 15 months’ imprisonment.

The other two drugs, cocaine and cannabis resin, are present in very small quantities and I think the appropriate sentence for those is one of 1 month. That makes a starting point of 16 months’ imprisonment.

I take into account the risk factor which I assess at 3 months, and enhance the sentence, making a total of 19 months.

For the same reason I have articulated with respect to the resulting sentence in respect of the 1st accused, I think she is entitled to a full one-third discount and on that sentence, the order of the court is that she be imprisoned for 12 months. That also has the consequence of making her entitled to immediate release.