R. v. HIROYUKI SATO

IN THE COURT OF APPEAL

1992, No. 430
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant, a Japanese national 37 years of age, was convicted on his own plea of one charge of trafficking in dangerous drugs and on another charge of possession of Part I Poison. He was sentenced to 5 years' imprisonment on the 1st charge and 3 months' imprisonment on the 2nd charge, the two sentences to run concurrently. This is his application for leave to appeal against his sentence on the 1st charge.

2. The dangerous drugs specified in the 1st charge consisted of various drugs, including 50.86 grammes of a mixture containing 44.52 grammes of salts of esters of morphine.

3. The facts of the case are that on 1 January 1992 at about 6:30 p.m., the applicant was intercepted at the Baggage Examination Counter at the Kai Tak Airport, having arrived from Bangkok on a China Airlines flight. During the search a rounded object lying between the applicant's toes was found and the applicant, upon being questioned, readily admitted that that object contained heroin. Upon his admission that he was in possession of heroin, he was cautioned and asked if he had anything further to declare. The applicant then removed from his underpants in the region of his buttocks a rod-like object encased in a condom, saying that it was cannabis. The applicant also replied to questions asked that he had some other dangerous drugs hidden in his shoes. In his reasons for sentence, the learned trial judge declined to accept a plea put forward in mitigation that he, the applicant, had the drugs in his possession for his own consumption. The judge did not see the need to hold a Newton enquiry.

4. The applicant's counsel in the Court below put forward the following matters in mitigation. The applicant's mother lived in Tokyo; his father had died 4 years ago. He was a university graduate and was self- employed in a garment business. The applicant had been a drug addict since 1980. It was claimed that the heroin and a quantity of liquified methadone and cannabis had been purchased in Bangkok from street pushers. Whilst the drugs were for his own consumption, the applicant pleaded guilty to the charge of trafficking because of the wide definition of the term "trafficking" in Section 2, Sub-section (1) of the Dangerous Drugs Ordinance. This was his first entry into Hong Kong and his intention was to stay in Hong Kong for a day or two before obtaining a visa for Taiwan.

5. In setting the sentence at 5 years, the judge took into consideration, firstly, that trafficking in dangerous drugs is always considered as a serious offence and is severely punished. Secondly, the claim of possession of dangerous drugs for self consumption is an easy one to make. The possibility of the applicant seeking to sell the dangerous drugs or some of them was a real one. Thirdly, following the guideline in the case of LAU Tak-ming (1990) 2 HKLR 370, the sentence imposed should be in the range of 5 to 8 years' imprisonment, having regard to the quantity of heroin seized. Fourthly, the judge saw nothing in the applicant's mitigation which would persuade him to depart from the sentencing guideline in LAU Tak-ming (supra). The judge went on to say that heroin was the most dangerous and the most readily saleable drug in Hong Kong, whilst the other drugs found were less dangerous. Lastly, the judge observed that had the applicant been convicted after trial, he would have sentenced him to 6 years' imprisonment in respect of the trafficking charge. Taking into consideration the applicant's plea of guilty and his ready cooperation with the authorities, and that he was neither resident nor proposing to stay long in Hong Kong, nor did he have any obvious easy means of selling any of the drugs, he imposed the sentence he did.

6. It was submitted by Mr Eric Kwok, acting on behalf of the applicant before us this morning, that on the authority of R. v. CHUNG Kam-fai, C.A. No. 29/92, the judge should have held a Newton enquiry before he decided whether to accept or reject the plea put forward in mitigation that he had the drugs in his possession for his own consumption. The judgment in that case was delivered on 19 January 1993 whilst the judge in this case delivered his judgement on 29 September 1992. In the CHUNG Kam-fai case, Power, JA, said at P.6:-

"His motive was a mitigating circumstance which, if accepted, must have affected the sentence to be imposed. Although the words used by the judge are not altogether clear, we are satisfied that they should be taken as meaning that he was rejecting the submission that the applicant had purchased the drugs intending that they be used solely for his own consumption."

And at P.11, the judge continued: -

"The submission was seriously urged, it was of a nature which could have been supported by evidence and it was, moreover, an important mitigating factor. We are satisfied that before rejecting it the judge should have indicated to counsel that he was not prepared to accept it from the Bar. It would then have been for counsel to make his determination as to whether or not he would call evidence."

7. In this case, the judge, in deciding not to embark upon a Newton enquiry, had failed to give the applicant's counsel the opportunity to call evidence in support of his plea in mitigation. In the case of R. v. CHAN Mung-lung (1992) 2 HKCLR, 127, Penlington, JA, held, inter alia, the question of whether or not the importation of dangerous drugs was for self consumption was highly relevant to sentence, and if the drugs were only for self consumption, this was a strong mitigating factor. In the absence of specific finding on this point, a sentence should be passed to reflect the factual version most favourable to the applicant. The judgment was followed in the later case of CHUNG Kam-fai. With respect, we follow the decisions in CHAN Mung-lung and CHUNG Kam-fai cited above and give an interpretation of the facts in the case most favourable to the applicant.

8. We accordingly allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. The sentence on Charge 1 is accordingly reduced from 5 years to 3 years.