HKSAR v. LIU MING SZE

CACC 103/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 103 OF 2016

(ON APPEAL FROM HCCC NO. 124 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. The applicant sought leave to appeal against the sentence of 7 years and 3 months’ imprisonment imposed on him on 29 March 2016 by Deputy High Court Judge Bokhary on his plea of guilty to a single count of trafficking unlawfully in dangerous drugs on 12 June 2014 in Ning Po Street, Yaumatei, namely 86.01 grammes of methamphetamine hydrochloride (‘Ice’), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing, we refused the application and said that we would give our reasons for that refusal in due course. That, we do now.

The facts

2. In the early hours of the morning of 12 June 2014 the applicant was stopped by a police constable on patrol at Ning Po Street, Yaumatei.  A search of the applicant’s person revealed four transparent plastic packets containing a crystalline substance, subsequently identified as the Ice the subject of the count on the indictment in the applicant’s waist bag.  Its street value was $50,867.

3. Having been arrested and cautioned, the applicant said “Ah Sir, the dangerous drug ‘Ice’ is for my own consumption.”  In a subsequent interview under caution at Yaumatei Police Station the applicant said that he bought the dangerous drugs for his own consumption 10 minutes before his arrest from a person he called Ka Fai for $9,000.

Mitigation

4. In the course of mitigation, Mr Ho submitted on behalf of the applicant that 10% of the dangerous drugs were for his own consumption.  Mr Dunn, for the prosecution, said that having regard to the applicant’s previous criminal record in respect of convictions for possession of dangerous drugs and his “obvious addiction to drugs”, he accepted that “some percentage, up to 10%” was for his own consumption.

Reasons for sentence

5. In her reasons for sentence, the judge stipulated a starting point for sentence of 11½ years’ imprisonment.  She said that, having regard to the fact that the applicant had pleaded guilty and “the fact that it is accepted by the prosecution that 10% of the drugs seized…is for your own consumption”, she afforded the applicant a discount of “slightly more than one-third” from the starting point.  In the result, she sentenced the applicant to 7 years and 3 months’ imprisonment.

Grounds of appeal against sentence

6. In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Wong Po Wing submitted that, having regard to the quantity of Ice in which the applicant trafficked unlawfully, the starting point taken for sentence of 11½ years’ imprisonment was too high.  He submitted that 86.01 grammes of ‘Ice’ fell within the band of 70-300 grammes for which the range of sentence articulated in the judgment of this Court in HKSAR v Tam Yi Chun [1]was 11 to 15 years’ imprisonment.  An arithmetic calculation of the starting point resulted in a sentence of 11 years and 3.3 months’ imprisonment. 

7. Secondly, Mr Wong submitted that, in affording the applicant an overall discount of only 36.96% from the starting point taken for sentence, the element of that discount, namely 3.63%, which reflected the fact of self-consumption of some of the dangerous drugs was too low.  He contended that this Court had said in its judgment in HKSAR v Chow Chun Sang [2] that when it was accepted that “all or part” of the dangerous drugs, in which the defendant trafficked unlawfully, was for his own self-consumption, depending on the circumstances, the court should afford the defendant a discount in the range of 10% to 25% from the basic starting point.  However, he acknowledged that in the judgment of this Court in HKSAR v Tam Ling Yuen [3]this Court said that the requirement articulated in its earlier judgment in HKSAR v Wong Suet Hau, [4] that a discount of sentence to reflect the element of self-consumption was to be afforded only where the Court accepted that a “significant proportion” of the dangerous drugs was for self-consumption, had not been abandoned or jettisoned.[5]

The respondent’s submissions

8. Mr Simon Kwong acknowledged on behalf of the respondent that a purely arithmetic calculation of the starting point to be taken for sentence resulted in a sentence of 11 years and 3.3 months’ imprisonment.  However, he submitted that in stipulating the starting point to be taken for sentence the judge was required to have regard to all the relevant circumstances.  In the present case, that included the fact that the applicant had three previous convictions for the offence of unlawful possession of dangerous drugs [6]; one conviction for the offence of possession of equipment fit and intended for consuming dangerous drugs [7]; one conviction for the offence of unlawful trafficking in dangerous drug[8], for which he was sentenced to 13 years’ imprisonment; and finally, one conviction for an offence of possession of Part I Poison.

9. Mr Kwong invited the Court to note that, in HKSAR v Chow Chun Sang [9]Yeung VP pointed out that in determining the extent of the discount to be afforded to reflect the fact for self-consumption regard was to be had to a range of factors, including:

“ …the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and a background in criminal record of the defendant.”

10. Yeung VP went on to say that the Court must not overlook “the latent risk that the portion of the drug intended for the appellant’s own consumption may be given or sent to others.”  Furthermore, he concluded by saying that “…unless the judge has erred in principle the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs the defendant trafficked in.”

A consideration of the submissions

The starting point taken for sentence

11. Immediately prior to stipulating the starting point taken for sentence of 11½ years’ imprisonment the judge said “All things considered”.  Obviously, a highly relevant consideration to stipulating the starting point to be taken for sentence was the applicant’s criminal record.  It was appalling.  In 1994, he had been ordered to be detained in a Training Centre for offences of unlawful possession of dangerous drugs.  In 1996, he was returned to Training Centre for offences of burglary.  In November 2000 and October 2001, he was ordered to be detained in a Drug Addiction Treatment Centre for two separate offences of possession of dangerous drugs.  On the second occasion he was also convicted of possession of equipment fit for consuming dangerous drugs.  On 2 December 2002 he was sentenced to 13 years’ imprisonment for unlawful trafficking in dangerous drugs.

12. In those circumstances, although she did not refer to the applicant’s criminal record in doing so, the judge was entitled to stipulate a starting point to be taken for sentence that was higher than that resulting from a purely arithmetic application of the guidelines for sentence.  We are satisfied that the starting point of 11½ years’ imprisonment identified by the judge was entirely appropriate.

Discount for self-consumption

13. In conceding that a proportion of the dangerous drugs in which the applicant admitted unlawful trafficking was for self-consumption Mr Dunn said:[10]

“ In view of the defendant’s record of possession of drugs and his obvious addiction to drugs, it is accepted that some percentage, up to 10%, was for his own consumption.”

14. No doubt, the concession that some percentage of the dangerous drugs was for the applicant’s own consumption was a practical and realistic concession by a very experienced counsel.  However, it is difficult to understand how counsel was able to put a figure to the percentage that he advanced.  Nevertheless, it fell a long way short of a concession that a “significant proportion of the dangerous drugs was intended for the consumption of the defendant and not for trafficking”.[11]  The judge’s attention was not drawn to the judgment of this Court in HKSAR v Wong Suet Hau & Another or any other authority relevant to the issue of a discount of sentence to reflect the fact of self-consumption of a proportion of the dangerous drugs in which the defendant trafficked unlawfully.

15. In HKSAR v Wong Suet Hau & Another,this Court heard two appeals against sentence together.  It had been submitted to the sentencing judges on behalf of the appellants that they possessed the dangerous drugs for their own consumption.  They had 68 grammes and 14 grammes of Ice in their possession respectively.  They explained that they each had that quantity of Ice because it was cheaper to buy in bulk.  Each of them had the paraphernalia for consuming Ice in their homes, where the Ice had been found.  The 1^st appellant conceded that she would sell some of the dangerous drugs to her friends or give it to them on credit.

16. In the judgment of the Court, Stuart-Moore VP said:[12]

“ Inbothofthepresentappeals,thefactualsituationwassuchthattherewasnoreadilydiscerniblequantitywhich A1 or A2 possessed for the purposes of self-consumption. However,… there was in these appeals evidence which supported their assertions that some of the drugs were for personal consumption because of the paraphernalia suggesting that A1 and A2 were not only dealing in ice but were themselves using it.

The sentencing judges in both cases appear to have accepted what was said in mitigation about the intention of the Appellants to consume a part of the ice found in their possession because nothing was said to indicate any rejection of what had been advanced in mitigation.  Having said this, neither Appellant was given any reduction in sentence for the ‘self-consumption’ element.”

17. Stuart-Moore VP went on to say that when it was suggested in mitigation that:[13]

“ …a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.”

18. In considering such a submission, Stuart-Moore suggested:[14]

“ The factors to be considered will include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.”

19. Then he said:[15]

“ Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking.” [Italics added.]

20. Having regard to those considerations, the Court determined in the case of the 1^st appellant:[16]

“ In our view, the mitigation put before the court was insufficient to have enabled the judge to say that a significant proportion of the drugs was intended for self-consumption. We consider, therefore, that the judge in A1’s case was right not to have reduced the sentence he imposed, as the result of the mitigation advanced on her behalf that some of her supply of ice would have been consumed by herself, other than by giving her the usual discount of a third for her plea which she would have received in any event.”

21. Similarly, in respect of the 2^nd appellant, the Court concluded:[17]

“ …whilst it appears to have been accepted that A2 was a social consumer of ice, there was little which afforded him any mitigation which could materially affect the usual sentence to be imposed for trafficking in this amount of ice. We consider that the judge, leaving aside the fact that she was never asked to reduce A2’s sentence on account of his intended consumption of some of the ice, was fully entitled to have given no reduction for the ‘self-consumption’ suggestion.”

22. In this Court’s judgment in HKSAR v Chow Chun Sang the range of discount to be afforded to a defendant for the fact of self-consumption when the Court imposes sentence for an offence of unlawfully trafficking in dangerous drugs was considered.  In that case the judge had accepted that more than half of the 7.22 grammes of Ice found in the possession of the appellant, together with the paraphernalia for consuming Ice, when she was stopped by police officers in the street, was for her own consumption.[18] In the judgment of the Court, Yeung VP referred to a judgment of the Court of Appeal of England and Wales [19] and to two judgments of this Court [20] involving unlawfully trafficking in dangerous drugs by importation in which sentence had been passed on the basis that “the drugs were wholly for their own consumption”.[21]  Then, he referred to the judgment of this Court in HKSAR v Cheuk Kin Man,[22] noting that the defendant had claimed that two thirds of the 15.77 grammes of heroin in which he unlawfully trafficked was for self-consumption.  There, this Court said that the judge had rightly rejected that claim.  Nevertheless, as Yeung VP noted, this Court afforded him a discount of about 15% from the starting point taken for sentence.

23. It was in that context that Yeung VP went on to say:[23]

“ We are of the view that in drug trafficking cases, when allorpartofthedrugsareintendedforthetrafficker’sownconsumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.” [Italics added.]

24. In affording the applicant a discount of 15% from that taken from the starting point for sentence in HKSAR v Cheuk Kin Man this Court noted that the applicant was not only a drug addict but also he had previous convictions for possession of dangerous drugs.  In fact, as is apparent from the Reasons for Sentence in that case, the applicant had a single conviction for unlawful possession of dangerous drugs and that was in respect of methadone only.[24]  This Court did not provide any further particulars as to how it determined to afford a discount of 15% to the applicant.  It determined that the judge had erred in finding that the applicant was only a seller, not a buyer, of the dangerous drugs and that the judge “…did not categorically indicate to the parties that she had rejected their stance towards the applicant’s status [ie. a buyer].

25. In HKSAR v Law Num Chun [25], to which Mr Wong drew our attention, the appellant was convicted of unlawfully trafficking in 7.81 grammes of Ice in crystalline form, 0.16 grammes of Ice contained in 16 tablets, 13.58 grammes of heroin hydrochloride and 4.68 grammes of midazolam.  At a Newton hearing, the judge rejected the appellant’s claim in testimony that all of the Ice in crystalline form was for self-consumption.  On the other hand, he accepted that some of the dangerous drugs in that form were for self-consumption.  The judge afforded the appellant a discount of 10% from the starting point taken for sentence to reflect the element of self-consumption.  This Court noted that the judge “…did not explain at all how it was that he accepted that the appellant abused methamphetamine tablets but not the crystalline ice.” [26]  This Court found it to be an error to exclude self-consumption of some of the crystalline Ice.[27]  Of course, the amount of Ice in crystalline form   exceeded very greatly that in tablet form.  It was in that particular context, that the Court determined:[28]

“ We are satisfied that the appellant was entitled to a discount of about 15% to reflect the fact that some part of dangerous drugs including ice in crystalline form was for self consumption. We interfere with the percentage of discount afforded by the judge on that basis only.” [Italics added.]

26. In HKSAR v Tam Ling Yuen [29]this Court rejected the suggestion that in stating, in the judgment in HKSAR v Chow Chun Sang, that the suggested range of discount of sentence of 10% to 25% was applicable “when all or part” of the dangerous drugs were for self-consumption, the Court “abandoned or jettisoned” the requirement that it be proved that a “significant proportion” of the dangerous drugs in which the defendant trafficked unlawfully was for self-consumption.

27. Having regard to the factors enumerated in the judgment of Stuart-Moore VP in HKSAR v Wong Suet Hau relevant to a determination of the issue of whether or not a “significant proportion” of the dangerous drugs was for self-consumption, it is to be noted that the applicant was stopped in the street in the early hours of the morning in possession of over $50,000 worth of Ice, for which he claimed he paid $9,000.  Moreover, the Ice was contained in four plastic bags.  He was not in possession of any paraphernalia whatsoever for consuming the Ice.

28. We are satisfied that the proportion of the Ice which the judge was prepared to accept was for the applicant’s self-consumption, namely up to 10%, does not fall to be regarded as a “significant proportion” of the 86.01 grammes of Ice in which the applicant unlawfully trafficked.  It follows that the suggested range of discount set out in the judgment of this Court in HKSAR v Chow Chun Sang was not relevant.

29. The discount from the starting point taken for sentence that the judge afforded the applicant to reflect an element of self-consumption was within her discretion in sentencing.

Conclusion

30. For the reasons we have given, the application for leave to appeal against sentence was refused.

Mr Simon Kwong, PP, of the Department of Justice, for the respondent

Mr Wong Po Wing, instructed by S.H. Chan & Co, assigned by Director of Legal Aid, for the applicant

[1] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[2] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

[3] HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572.

[4] HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69.

[5] HKSAR v Tam Ling Yuen, paragraph 27.

[6] 8 April 1994; 1 November 2000 and 3 October 2001.

[7] 3 October 2001.

[8] 2 December 2002.

[9] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, paragraphs 19-20.

[10] Appeal Bundle, page 9 N-P.

[11] HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.

[12] HKSAR v Wong Suet Hau & Another, paragraphs 31-2.

[13] HKSAR v Wong Suet Hau & Another, paragraph 34(1).

[14] HKSAR v Wong Suet Hau & Another, paragraph 34(3).

[15] HKSAR v Wong Suet Hau & Another, paragraph 34(4).

[16] HKSAR v Wong Suet Hau & Another, paragraph 54.

[17] HKSAR v Wong Suet Hau & Another, paragraph 57.

[18] HKSAR v Chow Chun Sang, paragraph 7.

[19] R v Meah & Marlow (1991) 2 Cr App R 254.

[20] HKSAR v Chung Kam Fai [1993] 1 HKCLR 178; and HKSAR v Chow Kam Lung [2010] 4 HKLRD 253.

[21] HKSAR v Chow Chun Sang, paragraph 17.

[22] HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

[23] HKSAR v Chow Chun Sang, paragraph 19.

[24] HKSAR v Cheuk Kin Man (DCCC 413/2009; unreported, 27 August 2009.

[25] HKSAR v Law Num Chun [2014] 6 HKC 606.

[26] HKSAR v Law Num Chun, paragraph 35.

[27] HKSAR v Law Num Chun, paragraph 36.

[28] HKSAR v Law Num Chun, paragraph 41.

[29] HKSAR v Tam Ling Yuen, paragraph 27.