HKSAR v. CHEUK KIN MAN

[English Translation]
CACC 294/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 294 OF 2009

(ON APPEAL FROM DCCC 413 OF 2009)

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JUDGMENT

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Hon. Tang V-P (giving the judgment of the Court):

1.  The Applicant was charged with one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3), Dangerous Drug Ordinance, Cap. 134, Laws of Hong Kong. The particulars of offence allege that the Applicant, on 2 February, 2009, at the male public toilet in Luen Wan Street, Mong Kok, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely, 17.51 grammes of a mixture containing 15.77 grammes of heroin hydrochloride.

Prosecution’s Case

2.  At around 9:50 p.m. on Monday, 2 February 2009, the Applicant entered the male public toilet in Luen Wan Street, Mong Kok, with a male [later known to be male Chan Wai-keung].  A police officer found the two of them suspicious and thus followed them into the public toilet.  The Applicant and Chan Wai-keung entered a toilet cubicle and closed its door.  The police officer then went into an adjacent cubicle and climbed up the dividing wall to check out what they were doing inside the cubicle.

3.  Upon seeing the Applicant putting his left hand into his left trousers pocket nervously, the police officer ordered him and Chan Wai-keung to open the cubicle door.  After that the police officer conducted a body search on them and found from the Applicant’s left trousers pocket a resealable transparent plastic bag containing 60 small plastic packets of white powder.  Under caution, the Applicant, while pointing at Chan Wai-keung, said, “The Sai Chai has just been bought by me from Ah Pai Gwut!  I also gave him 13,200 bucks.  I bought the Sai Chai just for myself to take my time to consume it.  It’s the first time I have bought from him, I really just bought it for myself to take my time to consume it.”  The Applicant had cash of $2,893 on him whilst Chan Wai-keung had cash of $15,688 on him.

4.  The 60 small plastic packets of powder were subsequently certified by Government Chemist to be a total of 17.51 grammes of a mixture containing 15.77 grammes of heroin hydrochloride [a salt of heroin].

5.  No fingerprints of the Applicant or Chan Wai-keung were found by the Government Chemist on the cash of $15,688 seized from Chan Wai-keung.  Nor was Chan Wai-keung’s DNA found by Government Chemist on the surface of the plastic bag used for containing the 60 small plastic packets of dangerous drug, found upon search from the Applicant’s pocket.

6.  The Applicant pleaded guilty but claimed that part of the dangerous drugs were for his own consumption; he admitted that the remainder of the dangerous drugs were for the purpose of trafficking.

7.  A Newton Hearing was then conducted by District Judge Yuen to determine whether the Applicant’s version should be accepted.

8.  There was no dispute between the prosecution and the defence as to whether the Applicant was a buyer.  The issue between the parties was whether the Applicant, after having bought the dangerous drugs, had them wholly for re-sale, or partly for self-consumption and partly for re-sale, and if it is the latter case, what is the ratio of the amount for self-consumption to that for re-sale.

9.  After the Newton hearing, the trial judge found that the Applicant was a seller, not a buyer.  However, at the hearing the trial judge did not categorically indicate to the parties that she had rejected their stance towards the Applicant’s status [i.e. a buyer].  Further, the reason why the trial judge rejected the Applicant’s claim to be a buyer was that she did not believe the Applicant’s evidence that he bought the dangerous drugs in question with the “lai see money” of his children.  Nonetheless, even if the Applicant lied in this regard, it did not mean that he definitely was not a buyer but a seller.

10.  Given the fact that the prosecution had accepted the status of the Applicant as a buyer at the trial, we should, in our view, deal with this question on the basis that he was a buyer.

11.  It was submitted by the Applicant that two-thirds of the dangerous drug bought by him were for his own consumption.  But this is only his one-sided story, which is not substantiated by any other concrete evidence.  The background of the Applicant, as summarized by the trial judge, is that he is a person living on public assistance.  His family members include his wife who has mental problem and his children who are aged 18, 22 and 23 respectively.  The eldest daughter is in employment while the two sons are still pursuing their studies.  The Applicant receives a monthly sum of about $12,000 in public assistance and is required to spend the whole sum on maintaining the family, and hence the family has no savings.  In view of the Applicant’s financial insufficiency, it is believed that he could not afford to buy such a large quantity of dangerous drugs for his own consumption.  Furthermore, the Applicant’s explanation that the money came from his children’s “lai see money” was rightly rejected by the trial judge.

12.  In HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 (Stuart-Moore V-P, Mayo V-P, and Stock JA in Court) and HKSAR v Cheng Man Bor [2008] 4 HKLRD 841 (Cheung JA, Yeung JA and Chu J in Court), this Court has already dealt with the issue which concerns with a defendant who pleads guilty to trafficking in a dangerous drug but claims, as a ground of mitigation, that part of the dangerous drugs are for self-consumption.  It is the understanding of this Court that, 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. Usually, it is unnecessary for a court to conduct a Newton hearing to determine whether part of the dangerous drugs are for self-consumption.

13.  On the facts of the present case, a starting point of 5 years and 5 months is appropriate if there is no self-consumption factor in relation to part of the dangerous drugs.  As the Applicant is a drug addict, who has previous convictions relating to possession of dangerous drugs, it is possible that part of the dangerous drugs were for his own consumption.  In view of the fact that there is the self-consumption factor, in our judgment, a term of imprisonment for 4 years and 6 months is sufficient to reflect the gravity of the offence. After a one-third discount for the Applicant’s plea of guilty, the sentence should therefore be 3 years.

14.  Leave to appeal is granted to the Applicant.  Treating the hearing of this application as the hearing of the appeal, we allow the appeal and reduce the sentence from 3 years and 7 months to 3 years.