HKSAR v. CHAN TAI WAH

[English Translation – 英譯本]
CACC 476 / 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 476 OF 2011

(ON APPEAL FROM DCCC NO. 711 OF 2011)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the judgment of the Court):

Background

1. The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He pleaded not guilty to the charge before Deputy Judge Sham in the District Court but pleaded guilty to possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the said Ordinance.  The prosecution no longer proceeded with the trafficking charge, and the summary of facts was amended by deleting the phrase which stated that the applicant “was in possession of the dangerous drug for the purpose of trafficking”.  Deputy Judge Sham convicted the applicant of possession of a dangerous drug and sentenced him on that basis.  The drug involved was 5.47 grammes of “ice”.

2. The applicant was sentenced to 20 months’ imprisonment.  He appeals against this sentence.

3. Following the hearing, we granted leave to appeal and, treating the hearing as the appeal itself, we allowed the appeal, set aside the sentence of 20 months’ imprisonment and substituted therefor a sentence of 16 months’ imprisonment.  Our reasons are set out below.

Admitted facts

4. The facts admitted by the applicant revealed that at the material time, the police searched the room in which the applicant resided and found on a table a bag containing 0.20 gramme of “ice” and 42 re-sealable plastic bags.  In addition, a plastic bag containing 5.27 grammes of “ice” was found from a pocket of a men’s jacket inside a wardrobe.

5. Under caution, the applicant said that all the “ice” was bought by him for $3,000 and was for his own consumption.  He also said that the re-sealable plastic packets were to be used for packaging earrings, although he did not have any earrings at the material time.

6. The “ice” in question had a street value of $3,916.80.

The applicant’s background and mitigation

7. Deputy Judge Sham obtained a Drug Addiction Treatment Centre (DATC) report before sentence.  The report details the applicant’s background, which can be briefly described as follows.

8. The applicant, aged 38, had 14 previous convictions, six of which were for possession of dangerous drugs.  At the material time, he resided with his girlfriend in the room in question.  Their daughter was born while he was on bail.  He quit schooling after completing Form 3 and had worked variously as an apprentice hairdresser, waiter, transportation worker, etc.  At the material time, he worked as a car salesman earning a basic monthly salary of $4,000.

9. The applicant initially took cannabis for fun.  Then he started to abuse psychiatric drugs and eventually took to abusing “ice”.  He was sentenced to a DATC for treatment in 2009.

10. In mitigation, the then Counsel for the applicant submitted that the applicant had been cooperative with the police and had frankly pleaded guilty, and that birth of his daughter during the bail period had made him realize the importance of family love.  He promised the Deputy Judge that he would make contributions to society in future.

11. In relation to the “latent risk” factor, Counsel for the applicant submitted that on the facts, the present case was “just social trafficking taken at the highest”, since both the applicant and his girlfriend had “this hobby”.  It was submitted that they would not get involved in drugs again after this incident.

Reasons for sentence

12. Taking into account the facts of the case, the background of the applicant and the mitigation put forward on his behalf, and having considered the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, Deputy Judge Sham considered that the quantity of the “ice” in question was  “quite significant” and adopted a starting point of 18 months’ imprisonment.  He also considered that the “latent risk” was “rather high” and enhanced the sentence by 12 months.  The applicant was given one-third discount in sentence and was sentenced to 20 months’ imprisonment.

Grounds of appeal

13. The grounds of appeal advanced by Mr Lam, Counsel for the applicant, are essentially as follows:

  (1) The 18-month starting point adopted by the Deputy Judge is excessive.

  (2)  The 12-month enhancement imposed by the Deputy Judge on the ground of “latent risk” is too high.

  (3) The overall sentence of 20 months’ imprisonment is manifestly excessive.

14. Relying on cases such as Mok Cho Tik and HKSAR v Jarhia Kuldeep Singh, CACC 96/2006, Mr Lam submitted that the starting point should be 15 months and the enhancement 6 months, making a total sentence of 14 months.

Respondent’s reply

15. Miss Chan, Acting Senior Public Prosecutor for the respondent, replied that in light of all the circumstances of the present case and the applicant’s criminal record, the starting point of 18 months was not excessive, nor was the 12-month enhancement too high, and the overall term of 20 months was by no means manifestly excessive.

16. Miss Chan argued that the circumstances of the applicant were different from the cases cited by Mr Lam.  Although the “ice” in question weighed 5.47 grammes, the applicant had six previous convictions for possession of dangerous drugs and abused “ice” together with his cohabiting girlfriend.  The 12-month enhancement was (Miss Chan submitted) not excessive.

Our views

17. The three grounds of appeal can, we think, be dealt with together.

18. First, in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, having considered the authorities, the Court of Appeal held that in determining an appropriate sentence for a bona fide drug user who is convicted of simple possession of dangerous drugs, the judges should adopt the following three-step approach (see 407 C to H):

“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

  Step 3:   The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

19. The Court of Appeal endorsed the above sentencing approach in Mok Cho Tik.

20. In Mok Cho Tik, the Court of Appeal said (at 267 B to E):

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that 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, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. 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 the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

21. In Mok Cho Tik, which involved 15.724 grammes of “ice”, the offender was aged 22 and had one previous conviction for possession of dangerous drugs.  He denied selling the drug and said that he would only offer it to people who went to his residence for their consumption.  It was not known whether the offender was being employed at the material time.  The Court of Appeal took the view that an appropriate starting point was 18 months’ imprisonment and that the sentence was to be enhanced by 12 months to reflect the “latent risk” factor.

22. In Jarhia Kuldeep Singh, which involved 6.82 grammes of “ice”, the offender was aged 27 and unemployed.  He was drug-dependent but was not suitable for admission to a DATC.  The Court of Appeal said that 6.82 grammes of “ice” was neither small nor large, and did not accept the offender’s allegation that this quantity was sufficient enough for him to consume for 2 or 3 days.  The Court of Appeal considered a starting point of 15 months’ imprisonment appropriate and enhanced the sentence by 12 months.

23. In HKSAR v Minney [2011] 3 HKLRD 556, the Court of Appeal further explained the legal principle of “latent risk” (at para. 13(a) of the judgment):

“The word ‘latent’ is misleading, for a consideration of the cases and the rationale for treating the relevant risk as an aggravating factor shows that what is of justifiable societal concern is actual risk disclosed by the facts of the case; in other words, actual risk of dissemination; …”

24. On the facts of the present case, taking into account that 5.47 grammes of “ice” was involved, we consider that, notwithstanding the applicant’s six previous convictions for possession of dangerous drugs, the appropriate starting point should be 15 months rather than 18 months.

25. The applicant has no previous convictions for trafficking in dangerous drugs.  His multiple convictions for possession of dangerous drugs and the fact that he had been sentenced to a DATC shows that he was a genuine drug user.  At the material time, he had a regular job and the “ice” in question was found by the police at his home.  Apart from one bag containing a small quantity of “ice” on the table, there was another bag hidden in a jacket pocket.  The presence of 42 re-sealable plastic packets was suspicious but, in view of the quantity of the drug and the circumstances in which it was found at the applicant’s home, the actual risk of the drug being disseminated in society was low.  As the applicant had by Counsel submitted to Deputy Judge Sham that his girlfriend also abused “ice”, the risk involved was that the applicant and his cohabiting girlfriend would abuse the drug together.

26. In all the circumstances of the present case, we consider an enhancement of 9 months appropriate.

27. The applicant was entitled to the usual one-third discount on account of his guilty plea.  The appropriate sentence should be 16 months’ imprisonment.

28. For the above reasons, we grant leave to appeal.  Treating the hearing as the appeal itself, we allow the appeal, set aside the sentence of 20 months’ imprisonment and substitute therefor a sentence of 16 months’ imprisonment.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.