HKSAR v. LAI HAIXIAN

CACC 15/2025 , [2025] HKCA 820

On Appeal From [2025] HKDC 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 15 OF 2025

(ON APPEAL FROM DCCC NO 787 OF 2024)

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J U D G M E N T

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1.  On 20 December 2024, the applicant pleaded guilty before Deputy Judge M Chow (“the judge”)  in the District Court to a single charge of Possession of a dangerous drug, namely 4.95 grammes of a solid containing 3.99 grammes of cocaine, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134. On 8 January 2025, he was sentenced to 20 months’ imprisonment. The applicant seeks leave to appeal against his sentence, although he has served it completely and already been discharged from prison on 3 May 2025.

Facts agreed by the applicant

2.  The facts, which the applicant agreed, were that on 24 March 2024, at 12:06 am, he was observed wandering around Ching Yuk House, Tsz Ching Estate in Wong Tai Sin, Kowloon.  When a team of police officers on anti-crime patrol in the area approached him, he lowered his head and quickly walked away.  One of the officers (PW1), however, intercepted the applicant, revealed his police identity and asked him what he was doing.  The applicant said he was looking for his friend but could not explain where his friend was.  He was then searched and in the right pocket of his trousers were found:

(a)  One plastic bag containing 3 stapled plastic bags, inside of which were 0.87 grammes of a solid containing 0.73 grammes of cocaine.

(b)  One plastic bag containing 14 stapled plastic bags, inside of which were 4.08 grammes of a solid containing 3.26 grammes of cocaine.

(c)  HK$9,859 in cash (in the form of eleven HK$100 notes, thirty-eight HK$50 notes, eight HK$20 notes and other coins of different denominations[1]).

3.  The applicant was also found in possession of two mobile telephones.  Under caution, he claimed that the cocaine was for his own consumption.  The estimated street value of the cocaine was HK$4,499.50.

Mitigation and sentence

4.  Ms Law, who appeared for the applicant in the District Court, as she does today with Mr Hui, submitted in mitigation that her client was aged 23, unemployed and of clear record.  It was submitted that no part of the drug in question was for dissemination[2] (this submission was said to be supported by the fact that no measuring equipment or tools for distributing the drug was found in the applicant’s possession)[3].

5.  The judge was told that the applicant had been given pocket money of about HK$10,000 from his parents (out of a joint family income of HK$50,000), which had gone to finance his purported drug habit, but she noted that the source of his funds was “a mere assertion from the bar table”[4].

6.  Before passing sentence, the judge called for a Drug Addiction Treatment Centre report, from which she noted that the applicant had claimed that he started to abuse cocaine (in addition to cannabis)  in February 2023, and last took drugs in September 2023.  However, his urine test of 26 March 2024 revealed a negative result for dangerous drugs.

7.  With regard to the small quantity of cocaine in the applicant’s possession, the judge used 12 months’ imprisonment as the starting point for the offence, which she enhanced by 18 months for the ‘latent risk factor’.  Since the applicant had tendered a timely plea in the District Court, she gave him a one-third discount and reduced the enhanced sentence from 30 months’ (or 2½ years’)  imprisonment to 20 months’ (or 1 year and 8 months’)  imprisonment.

Grounds of appeal

8.  Mr Hui, with him Ms Law, has advanced two grounds of appeal.  By Ground 1, it is argued that the judge’s finding as to the fact of latent risk was wrong in principle.  By Ground 2, it is contended that an enhancement of 18 months to reflect any such latent risk was manifestly excessive and disproportionate to the starting point, when compared with previous appellate authority.  

Respondent’s submissions

9.  Ms Au, for the respondent, has submitted that the real possibility of dissemination of the dangerous drug was supported by the circumstances, namely, the fact of 17 small bags of cocaine in the applicant’s possession, together with a sizeable quantity of cash and two mobile telephones, on the street after midnight; and that, absent any upper limit for enhancement laid down by the Court, the judge was entitled to substantially increase the starting point by 18 months’ imprisonment in the present case. 

Consideration

10.  As a Single Judge, my task in this application is to determine whether it is reasonably arguable that the sentence is wrong in principle or manifestly excessive.  Whilst the applicant claimed under caution that the drug was for his own consumption, that self-serving statement was doubted by the judge (as early as the first hearing before her)  as being at variance with the overall circumstances of the case, including the objective facts that the applicant was not himself an abuser of cocaine and other dangerous drugs, the packaging of the dangerous drugs and the substantial amount of cash found in his possession.  In those circumstances, absent any credible evidence to the contrary, or testimony from the applicant by way of a Newton hearing, the judge was entitled to come to an irresistible conclusion as to the latent risk factor which she found to exist.  The argument under Ground 1 is not tenable. 

11.  Not only did the judge reject the applicant’s claim that the drugs were for his own consumption, but the latent risk of the packets coming into the possession of other people was high.  Nevertheless, as a matter of fairness and principle, the applicant should have been sentenced according to the charge he faced, which was simple possession, not trafficking, subject to an enhancement for latent risk.  Whilst no criticism is, or could be, levelled against the starting point of 12 months’ imprisonment for the possession of just under 4 grammes of cocaine, the judge adopted an enhanced starting point of 30 months’ (or 2½ years’)  imprisonment, having increased the sentence by 18 months, or 150%.  I pause here to note that 30 months’ imprisonment would be a sentence that was only 8 months, or 21%, less than what he might have received had he been charged of trafficking[5].

12.  Accordingly, it would seem to me that the enhancement for the latent risk factor is arguably on the high side, if not disproportionate to the original starting point and the level of enhancement approved by the appellate courts.  Since this is a leave application, I shall refrain from saying more than that which has already been observed by the Court in HKSAR v Lai Kam Sang[6], at [7], namely that:

“while it might be proper to double the sentence because of latent risk where as large a quantity as that is involved, where there is a smaller quantity, such as we have in the present case, doubling would not be appropriate.”

13.  In the later decision of HKSAR v Lee Chun Man[7], the appellant was sentenced on his own plea to 2 years’ imprisonment in respect of a charge of simple possession of dangerous drugs (55.58 grammes of ketamine and 2.28 grammes of methamphetamine hydrochloride), based on a starting point of 18 months’ imprisonment and a 100% enhancement for the latent risk factor. In allowing the appeal, the Court affirmed the basic starting point of 18 months’ imprisonment but reduced the level of enhancement to 12 months.   

14.  In my judgment, there is a reasonable argument in relation to Ground 2.  Leave to appeal against sentence is granted on Ground 2 of the grounds of appeal only.