HKSAR v. MINNEY, JOHN EDWIN

CAC C 383/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 383 OF 2010

(ON APPEAL FROM DCCC NO. 208 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  This is an application under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of great and general importance is involved in our decision dated 6 April 2011, the reasons for which were handed down on 16 June 2011.

2.  The question that has been put before us for certification is:

“Is it ever permissible to enhance a sentence for possession of dangerous drugs contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134 on the basis that the offender might have dealt with the dangerous drugs which are the subject of the charge in such a way as to constitute the separate offences of trafficking, or offering to traffic, or doing an act preparatory to trafficking in Dangerous Drugs, contrary to section 4(1) of the Dangerous Drugs Ordinance, Cap.134.”

3.  The point that arose for our determination was whether, upon a conviction for an offence of simple possession of dangerous drugs it was acceptable to enhance a sentence on the basis of that which has become known as the latent risk factor.  The essence of the applicant’s contention was that such an enhancement was objectionable because it assumed an intention on the part of a defendant to traffic in drugs.

4.  We made it clear in the reasons for our judgment that it was unacceptable on a charge of simple possession of dangerous drugs to enhance a sentence on the basis of a present intention to traffic in the drugs but we said that it accorded with general sentencing principle and policy to take into account all the circumstances of the possession and to pass a heavier sentence than otherwise if the circumstances of that possession produced a real risk of some of those drugs finding their way into the hands of others: see, in this context, the passage we cited from the judgment of Nazareth VP in R v Wu Yau-man [1996] 4 HKC 255.

5.  The principle is reflected in sentencing for other offences such as possession of firearms and has long been applied in relation to dangerous drugs, subject to the caveat laid down in the distinction drawn by Power VP in R v Lee Siu Lung [1995] 1 HKC 39 that:

“It is one thing for a judge, when sentencing, to say that he accepts that the accused had drugs in his possession for his own consumption but takes into account the damage to the community posed by the possession of that quantity of drugs in the unstable hands of an addict, even one who intends them for his own consumption. It is quite another for a judge to say that he does not accept that the accused had possession of all of the drugs for his own consumption and to sentence him upon that basis. The latter approach would only be permissible upon a plea to a charge of trafficking.”

6.  We refuse to certify the question raised in the applicant’s Notice of Motion because the principle involved is long-standing and entrenched in the law, is of general application in sentencing and reflects common sense.