HKSAR v. WONG CHI MING

CACC 203/2017

[2018] HKCA 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203OF 2017

(ON APPEAL FROM HCCC NO. 137 OF 2016)

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J U D G M E N T

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1.  The applicant, who appeared in person having been refused the grant of legal aid, seeks leave to appeal against the sentence of 5 years and 4 months’ imprisonment imposed on him on 14 June 2017 by Campbell‑Moffat J following his conviction on his plea of guilty to a count of unlawfully trafficking in dangerous drugs on 3 September 2015, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The facts 

2.  At about 4 p.m. on 3 September 2015, the applicant was seen by police officers to enter the Alhambra Building, 383-389 C, Nathan Road, Kowloon.  Having been intercepted and searched by a police officer, 19 packets of what, on analysis was identified as being dangerous drugs, was found inside a box in a shoulder bag which the applicant was carrying.  Those packets were found to contain:

•   a crystalline solid containing 18.19 grammes of methamphetamine hydrochloride (“Ice”);

•   a powder containing 2.64 grammes of Ice;

•   a powder containing 0.58 grammes of ketamine;

•   a solid containing 0.09 grammes of cocaine; and

•   a powder containing 1.70 grammes of Ice and 0.32 grammes of ketamine (contained in 6 plastic packets).

The estimated retail value of the dangerous drugs was $8,193.

3.  Having been arrested and cautioned, the applicant claimed that the dangerous drugs were for his own consumption.

Mitigation

4.  At a pre-trial review on 25 May 2017, an intimation was given by Mr Kwan Tong Lee, counsel for the applicant, to the judge for the first time that the applicant intended to plead guilty to the count on the indictment.  Having adjourned the hearing to 14 June 2017 for the preparation of a Summary of Facts, the judge stated that she wished to be informed in advance of that hearing if there was to be a Newton hearing in respect of the issue of self‑consumption of the dangerous drugs.

5.  By letter to the court, dated 5 June 2017, from the applicant’s then solicitors the court was advised that the applicant “elects not to give evidence in relation to the self‑consumption part” but nevertheless, in respect of the dangerous drugs the subject of the count, it was submitted on his behalf that “about 6 grammes of Ice were intended for his own consumption.”  Attached to the letter was a letter from the Correctional Services Department, dated 31 October 2016, which asserted that the applicant had tested positive for amphetamine in his urine on admission to Lai Chi Kok Reception Centre on 4 September 2015.  Also attached was a form, in the name of the applicant, entitled “Tracking and Recording System for Urine test, CSD”.

6.  At the hearing on 14 June 2017, Mr Kwan invited the judge to have regard to the solicitor’s letter in which the issue of the applicant’s self‑consumption of some of the dangerous drugs had been addressed.  He said that the applicant was a drug addict.  However, in face of the judge’s reminder that she had said that the applicant would have the opportunity to give evidence on the issue if he wished, Mr Kwan confirmed that the applicant did not intend to give evidence.

7.  For his part, Mr Kwan invited the judge to have regard to the fact that on arrest the applicant had claimed that the dangerous drugs were for his own consumption.  He said that the claim was specific and went to the Ice only.  He said that for purposes of mitigation it was submitted on behalf of the applicant that about 6 grammes of the 22 grammes of Ice were for his own consumption.

8.  Having submitted that the quantities of cocaine and ketamine were of negligible quantities, Mr Kwan invited the court to disregard them for purposes of sentencing.  He said that an arithmetic calculation of sentence based on 22.53 grammes of Ice produced a starting point for sentence of 7.83 years’ imprisonment.

Reasons for sentence

9.  In her reasons for sentence, the judge observed that the applicant had only two convictions in respect of dangerous drugs.  First, in 2009 when he had been sentenced to 4 years’ imprisonment for unlawfully trafficking in dangerous drugs and secondly, in 2013 when he had been sentenced to 4 months’ imprisonment for possession only of dangerous drugs.  Of that, she said “That is an aggravating feature of this case.”

10.  Of the submission advanced on behalf of the applicant that about 6 grammes of the 22 odd grammes of Ice were for his own consumption, the judge said:

“ That is a bare assertion, save for the medical record which shows some traces of amphetamine within your system and what you said upon arrest and caution and in answer to questions for the preparation of the antecedent statement. The latter two items are somewhat self-serving.”

11.  Then, the judge said:

“ You were given the opportunity to give evidence upon the issue without risk and you chose not to do so. Accordingly, I have no direct evidence to show that these particular drugs which you were carrying with you in public were for your own use, and I decline to take any part of them for that purpose.

That is because, without more, I assume, it being illegal, that you would not be in possession of dangerous drugs in a public place for your own consumption unless you had either just purchased the drugs or you were going somewhere to take them with friends, and you have not suggested that this was the case and I cannot see why you would have this mixture upon you, packaged as it was.  You had three types of dangerous drugs found upon you, two of which were in a position to be sold on, and yet you say you are only a user of ‘Ice’.”

12.  In identifying a starting point to be taken for sentence, the judge said:

“ …because the amounts of ketamine were very small compared to the amount of ‘Ice’ you were carrying and I consider it appropriate in this case to add the weight of the cocaine and ketamine as a notional 1 gramme of ‘Ice’ to the quantity of ‘Ice’ you were found to have been in possession of, that is the 22.53 grammes plus 1 gramme which makes 23.53.”

13.  The judge went on to explain that, in taking that approach, it “makes only a marginal difference” to the ultimate starting point to be taken for sentence.  In doing so, she had adverted to the judgment of this Court in HKSAR v Hii Siew Cheng[1] in which guidelines were given for sentencing for unlawful trafficking in ketamine.  The judge noted that for quantities of less than 1 gramme of ketamine, sentence was at the judge’s discretion.

Sentence

14.  The judge adverted to the fact that the judgment of this Court in HKSAR v Tam Yi Chun [2] stipulated the guidelines for sentencing in cases of unlawful trafficking in Ice and having noted that for unlawful trafficking in amounts of between 10 and 70 grammes sentence fell in the range of 7 to 11 years’ imprisonment, the judge stipulated a starting point for sentence of 8 years’ imprisonment.  Stating that she afforded the applicant a discount of one‑third from that starting point, the judge sentenced the applicant to 5 years and 4 months’ imprisonment.

Grounds of appeal against sentence

15.  In submissions attached to Form XI, by which the applicant gave notice of his application for leave to appeal against sentence, the applicant asserted that he worked as a decoration worker and earned $750 per day, or around $15,000 per month.  He had given documents supporting those assertions of income and employment to his initial solicitors, Messrs Alan Ho & Co, but they had been lost by them.  Although he had written to the Legal Aid Department and the Law Society of Hong Kong they had been unable to assist him to retrieve the documents.

16.  Then, the applicant said that his sentence was too high in comparison with some other inmates who had received lesser sentences for unlawful trafficking in similar quantities of dangerous drugs.

17.  Thirdly, he stated that he had been misled by his former counsel who did not follow his instructions but kept asking him to plead guilty.  He said it was under those circumstances that he had pleaded guilty and admitted the Summary of Facts.

18.  In a letter to the court, dated 29 October 2017, the applicant repeated his assertions in respect of the lost documents.  Finally, he asserted that he had been drug dependent for a long time and reiterated his claim that part of the dangerous drugs was for his own consumption.  At the hearing today the applicant indicated that he had no other submissions to make.

The respondent’s submissions

19.  Mr Edward Brook, for the respondent, submitted that although there was some evidence of the applicant consuming Ice, there was nevertheless no evidence to show that the specific 6 grammes of Ice was for his own consumption.  Mr Brook submitted that the starting point for sentence of 8 years’ imprisonment fell within the appropriate range of sentence.  In the result, he submitted that the sentence was neither wrong in principle nor manifestly excessive.

A consideration of the submissions

Self-consumption

20.  As noted earlier, at the pre-trial review on 25 May 2017, the judge raised the question with Mr Kwan of whether or not there was to be an issue as to self‑consumption and asked for an indication from the defence if there was to be a Newton hearing.  She indicated that in the absence of evidence the court was left merely with “a bare assertion”.  However, the judge went on to say:

“ All I am going to say is this. So long as it is credible.. there is something credible in him wishing to maintain it, then he is not at risk before me in giving evidence, all right? So he is not going to be at risk of losing time before me, so long as it’s not completely and utterly without any merit.”

For his part, Mr Kwan said that he would inform his client.

21.  In those circumstances, clearly the applicant’s decision, articulated on 14 June 2017, not to avail himself of the right to give evidence on the issue of self‑consumption was an informed decision.  Moreover, he had ample opportunity to have considered that decision. In that context, in light of his other complaints, it is to be noted that, as was to be expected, at the commencement of proceedings that day the applicant was arraigned on the single count and tendered a plea of guilty, after which the Summary of Facts was read out in court.  The applicant acknowledged in court today that that had been the process and that he had accepted the Summary of Facts.

22.  In HKSAR v Wong Suet Hau, this Court addressed the approach to be taken by a judge in sentencing when met with a contention that part of the dangerous drugs in which the defendant was trafficking unlawfully was for self‑consumption:[3]

“ …in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the court’s stern approach to drug offences, sentencers will need to examine with particular care, any assertion by approved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted, as having been intended for self-consumption, carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true “mixed” cases, the difference in sentence, if any, will be slight.”

23.  In all the circumstances, in my judgment it is not reasonably arguable that the judge erred in declining to give the applicant any discount on the basis that some part of the Ice was for self‑consumption.

Starting point for sentence

24.  It is to be noted that Mr Kwan had suggested that the judge take a starting point for sentence of 7.83 years’ imprisonment to reflect unlawful trafficking in 22.53 grammes of Ice.  He invited the judge to disregard the small quantity, of ketamine 0.9 grammes and the “negligible”amountofcocaine,0.09grammes.  Forherpart,thejudgedeclinedtodisregardtheketamineandcocainebutnevertheless stipulated a starting point for sentence of only 8 years’ imprisonment.  Obviously, the judge was entitled to take those two drugs into account.

25.  Further, it is to be noted that in the course of sentencing the judge had said in terms that an “aggravating feature of this case” was the fact that the applicant had a previous conviction for unlawfully trafficking in dangerous drugs, namely in 2009.  Also, she observed: “You had three types of dangerous drugs found upon you, two of which were in a position to be sold on”.  No doubt, those remarks of the judge encompassed the six packets containing the powder mixture of Ice and ketamine, which constituted pre‑prepared cocktails of dangerous drugs.  As this Court has pointed out on a number of occasions, unlawfully trafficking in several different types of dangerous drugs is itself an aggravating factor in the commission of the offence.[4]

Conclusion

26.  In the result, in my judgment no reasonably arguable grounds of appeal against sentence have been advanced.  Accordingly, I refuse the application for leave to appeal against sentence.

27.  The applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court, but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.