XTRNX HKSAR v. Ng Chi Leung, Alan

CACC 332/1999

Sentencing for (possession of dangerous drugs) heroin and "ice" under section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134; comparison between sentencing for possession of "ice" and heroin and steps in considering sentencing; enhancement of sentence for the latent risk factor; matters to be considered in relation to the latent risk factor.

[English Translation - 英譯本]

CACC 332/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 332 OF 1999

(ON APPEAL FROM DCCC 1405 OF 1998)

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Judgment

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Woo, J.A. (giving the judgment of the Court):

1. The applicant for leave to appeal (the Defendant) was originally charged with one count of Trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong. The Defendant pleaded not guilty to the charge, and the trial was before District Judge Maggie Poon.

2. After three days' hearing, the Prosecution amended the charge to one of Possession of Dangerous Drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. The Defendant pleaded guilty to the charge and agreed to the facts of the case. The agreed facts stated that at about 9 a.m. on 13 November, 1998, that is, at the time of the charged incident, the police searched the Defendant and found on him a total of 137 packets of white-coloured powder. After laboratory analysis, the powder was found to be 55.11 grams of a mixture containing 48.32 grams of heroin hydrochloride.

3. After hearing the mitigation put forward by the lawyer for the Defendant, the judge sentenced the Defendant to 3 years' imprisonment.

4. The Defendant considers the sentence to be too heavy and has therefore filed an application for leave to appeal against sentence.

5. In her Reasons for Sentence, the trial judge pointed out that she had considered several precedents about the sentencing for possession of heroin and also the latent risk factor. She had taken 4 1/2 years' imprisonment as the starting point, and with a 1/3 reduction for the Defendant's plea of guilty, sentenced the Defendant to 3 years' imprisonment.

6. The judge said in her Reasons for Sentence:

and

Counsel for the Defendant, Mr. Wong Po Wing, submitted that these two reasons were both incorrect. Mr. Wong pointed out that although "ice" and heroin were not the same category of dangerous drugs, the harm they would cause to the human body was similarly serious. Therefore, Mr. Wong suggested that the precedents about sentencing for possession of "ice" should be applicable to the sentencing for possession of heroin, or at least they were worthy of reference to the court.

7. As mentioned above, the trial judge considered it inappropriate to take the precedents involving "ice" as the sentencing reference for a case about possession of heroin hydrochloride. In considering the sentence to be imposed on the Defendant, the trial judge cited four cases of the Court of Appeal in relation to possession of heroin hydrochloride, but she did not cite any case about sentencing involving "ice". She said,

8. Prior to the case of Chiu Hung Wong, the sentence imposed by the courts for possession of heroin hydrochloride was comparatively lenient. However, in that case, the Court of Appeal took into account the amendment made to the Dangerous Drugs Ordinance which took effect on 26 June 1992, for the increase of the maximum penalty for breaching section 8(1)(a) and (2) of the Ordinance from a fine of $10,000 and imprisonment for 3 years to a fine of $1,000,000 and imprisonment for 7 years. Therefore, the Court of Appeal took the view that the sentence of 2 years' imprisonment imposed by the trial judge on the appellant was neither wrong in principle nor manifestly excessive. In that case, the Court of Appeal also commented that the court should not ignore the latent risk, which arose from the quantity involved, that some of the dangerous drugs might be used for trafficking.

9. The case of Chan Ching Ho involved an application made by the defendant for leave to appeal against sentence and an application made by the Attorney General to the Court of Appeal for review of the sentence imposed on the defendant. In that case, the Court of Appeal took the view that the 62.81 grams of heroin hydrochloride involved in the case was in the most serious range covered by section 8 of the Dangerous Drugs Ordinance because the quantity was substantial.

10. When comparing the above four precedents about sentencing for possession of heroin hydrochloride, the weight of heroin hydrochloride possessed by the Defendant in this case, namely 48.32 grams, is nearest to that involved in the case of Lee Che Keung. Therefore, on the face of it, Judge Poon cannot be criticized for having taken 4 1/2 years as the starting point and, with a 1/3 reduction for the Defendant's plea of guilty, imposed a 3 years' sentence.

11. In R v Lee Siu Lung¹, the applicant for leave to appeal pleaded guilty to two charges: (1) possession of 48.96 grams of a mixture containing 18.28 grams of heroin hydrochloride, and (2) possession of 3.37 grams of a mixture containing 1.23 grams of heroin hydrochloride. The trial judge sentenced the applicant to 2 years for charge (1) and 9 months for charge (2). However, he considered that the overall starting point for the two charges should be 2 1/2 years, and with the reduction for his plea of guilty, the sentence for the applicant was 2 years. When sentencing, the trial judge said that although the applicant claimed that the drugs found on him were for personal consumption, the judge, however, said he had no doubt that was true for some of the drugs seized from him. The Court of Appeal opined that the remark made by the trial judge implied that some of the drugs possessed by the applicant might be for purposes other than that of self consumption, and such consideration was wrong. The Court of Appeal considered that unless the applicant was convicted of Trafficking in Dangerous Drugs, the judge was not entitled to consider that the possessed drugs might be for purposes other than that of self consumption. This Court is satisfied that the sentencing approach mentioned by the Court of Appeal is correct and fair. If a defendant is charged with an offence of "possession" and not "trafficking", it will be an error to bear "trafficking" in mind when considering sentence and that will also be unfair to the defendant. In this case, although the Defendant was originally charged with an offence of trafficking, after three days' hearing, the Prosecution amended the charge to one of possession instead of trafficking. The Defendant immediately pleaded guilty to the charge and agreed the facts. If the Defendant is dealt with on the basis of the seriousness of trafficking, it would be extremely unfair.

12. What Mr. Wong is not satisfied with is that the trial judge refused to take into consideration precedents about sentencing for possession of "ice". Mr. Wong cited the following seven recent cases about sentencing for possession of "ice". In R v Wu Chi Wai², the applicant for leave to appeal was convicted of trafficking in 59.39 grams of a crystalline solid containing 56.12 grams of "ice". The Court of Appeal (for reasons not related to this case) quashed the original conviction of trafficking and substituted for it a conviction of possession, and the sentence was varied to one of 2 years' imprisonment. It was because the Court of Appeal took the view that had the defendant been charged with possession from the outset instead of trafficking, he would have pleaded guilty. When imposing the sentence of two years' imprisonment, the Court of Appeal had also noted that the amount of drugs involved in that case, namely 56.12 grams, was greater than that for a usual case of possession, and therefore, opined that there must be a high latent risk that the drugs would fall from the unstable hands of the applicant into the hands of other persons.

13. In R v Chan Shing Hing³, the applicant for leave to appeal was charged with unlawful trafficking in 29.86 grams of "ice". He pleaded not guilty to the charge but was willing to plead guilty to possession. After trial, the jury returned a verdict of not guilty of trafficking but guilty of possession. The trial judge sentenced the applicant to 4 years' imprisonment. The Court of Appeal cited the above Wu Chi Wai case and considered a starting point of 3 years as being appropriate. As the applicant was willing to plead guilty to possession, the 3 years' imprisonment was reduced to a term of 2 years.

14. In HKSAR v Lam Wai Ip⁴, the applicant for leave to appeal pleaded guilty to two charges. The first count involved a small quantity of heroin hydrochloride and several tablets of hallucinogen. The major charge was the second one, namely, possession of 19.68 grams of "ice". The trial judge sentenced the applicant to a total of 3 years and 4 months' imprisonment. The Court of Appeal cited the cases of Chan Shing Hing and Wu Chi Wai and considered the appropriate sentence to be 2 years' imprisonment.

15. In HKSAR v Chan Yat Sing⁵, the applicant for leave to appeal was found guilty before a jury of possession of 95.36 grams of "ice" instead of trafficking in the drugs as alleged in the charge. The applicant was originally willing to admit possessing those drugs, but it was because the prosecution refused to accept it that the case had to be decided by the jury. The trial judge sentenced the applicant to 5 years' imprisonment, but the Court of Appeal was satisfied that a sentence of 3 1/2 years would be appropriate. At pages 2-3 of its judgment, the Court of Appeal made the following remarks:

16. In HKSAR v Lau Chi Chiu⁶, the applicant for leave to appeal was found guilty after trial of possession of 63.38 grams of "ice" and not guilty of trafficking. The trial judge cited the Chan Yat Sing case and sentenced the applicant to 3 years' imprisonment. The Court of Appeal accepted that the applicant had at all times during the trial been prepared to admit the charge of possession, and therefore the term of 3 years' imprisonment imposed by the trial judge should be discounted by 1/3 for his plea. The applicant was sentenced to 2 years' imprisonment accordingly. In that case, the Court of Appeal pointed out that in Chan Yat Sing, they were in error in sentencing Chan to 3 1/2 years because they had failed to take into account that Chan was prepared to plead guilty to possession at the time of trial.

17. In HKSAR v Lai Kam Sang⁷, the applicant for leave to appeal was originally charged with unlawful trafficking in 26.61 grams of "ice", and he pleaded not guilty. However, after two days' hearing, the court accepted his plea of guilty to possession and sentenced him to 2 years and 8 months. In that case, the Court of Appeal reiterated that when assessing the starting point, a judge should look at the accepted range of sentence for simple possession which was from one year to 18 months. The approach to sentencing of the trial judge was that he took 2 years as the starting point for that offence of possession, and owing to the latent risk factor, he enhanced the sentence by 100% to 4 years. As the applicant was willing to plead guilty to the charge of possession, the 4 years' term was reduced by 1/3, and so the final term of imprisonment was 2 years and 8 months. The Court of Appeal took the view that in respect of the 26.61 grams of "ice" involved in that case, doubling the original starting point of 2 years because of the latent risk factor was inappropriate. The Court of Appeal considered that the starting point in sentencing for possession of those drugs should be 18 months, and another 12 months should be added for the latent risk factor. As a result, the starting point should be 30 months. In addition, as the applicant was willing to plead guilty to possession, the 30 months' imprisonment was reduced by 1/3 bringing the sentence to 20 months.

18. In HKSAR v Chew Sik Pok⁸, the applicant for leave to appeal was charged with trafficking in 24.12 grams of "ice" in the Court of First Instance. He pleaded not guilty but was found guilty before a jury. The trial judge sentenced him to imprisonment for 7 years and 9 months. The Court of Appeal (for reasons not related to this case) convicted him for possession of the drugs and quashed his conviction for trafficking. In sentencing, the Court of Appeal said at pages 6-7 of its judgment as follows:

19. Accordingly, the Court of Appeal adopted 18 months' imprisonment as the appropriate sentence for possession of that 24.12 grams of "ice", and another 6 months were added for the latent risk factor, giving a total of 24 months. The Court of Appeal reduced the sentence by 1/3 for the applicant's plea of guilty to possession, and so the sentence was one of 16 months.

20. Recently, in the case of HKSAR v Cheung Chun Fai⁹, the Court of Appeal also made reference to the cases of Chew Sik Pok, Lai Kam Sang and Lau Chi Chiu and considered the amount of "ice" and the latent risk factor in sentencing.

21. From all the above sentencing cases of the Court of Appeal for possession of dangerous drugs, it can be seen that attention has to be paid to the following points:

22. Mr. Wong is not satisfied that the trial judge had not considered any cases in sentencing for possession of "ice". He pointed out that in principle, when dealing with sentencing for possession of any kind of dangerous drugs, the basic sentence for possession should first be considered and then the latent risk factor should be considered to see whether the sentence had to be enhanced. He further pointed out that the courts in Hong Kong did not consider the harmful effect of "ice" to be less than that of heroin. This view was supported by the case of AG v Ching Kwok Hung¹¹.

23. In this case, the trial judge only said that she considered it inappropriate to take cases about "ice" as sentencing references for possession of heroin hydrochloride, but she had not given any reason or cited any case to support such a decision. This Court takes the view that possession of heroin and "ice" is both contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, and the harmful effect of "ice" is by no means less than that of heroin. Therefore, in principle, the gravity of possession of either one of these two dangerous drugs is more or less the same as that of the other, and the sentences should not differ much. This is reflected in the following sentencing guidelines as set out in the cases of Lau Tak Ming and Ching Kwok Hung:

24. As a result, this Court opines that due reference should be made to cases about sentencing for possession of "ice" for assistance in the sentencing for possession of heroin. The above decision made by the trial judge is both unfounded and incorrect.

25. However, Mr. Lee, Counsel for the Prosecution, pointed out to this Court that although he agreed that the two steps adopted in the cited cases about sentencing for possession of "ice", namely, the basic sentence for possession and the enhancement for latent risk factor, and the various factors related to the consideration of latent risk were applicable to the sentencing for possession of heroin, he did not agree that the basic sentence in sentencing for "ice" could be directly applied to that for heroin. It was because the nature, harmful effect and prevalence of each kind of dangerous drug were different, and the basic sentence for possession should be properly distinguished accordingly. This Court agrees with this view, because if the drug in possession is cannabis, the penalty should be lighter than that for the possession of serious hard drugs such as "ice" and heroin.

26. Mr. Wong also submitted that it was inappropriate for the trial judge to consider that there was a latent risk factor just for the reason that the drugs involved in this case were packed in small packets. This Court considers that the packaging of drugs is a reasonable item for consideration in relation to the latent risk factor, and this was also mentioned in the case of Wong Yiu Kwan. Other matters that require consideration, which were suggested by the Court of Appeal in the case of Chew Sik Pok, include the quantity of the drugs, whether the defendant is a drug addict, the seriousness of his addiction, for how long the drugs will last him, how the defendant stores or carries the drugs about and whether the defendant has a proper employment and income, etc. Therefore, this Court thinks that there is nothing improper, rather, it is appropriate, for the trial judge to take into consideration the fact that the drugs found on the Defendant were packed in 137 packets when considering the latent risk factor.

27. In this case, the Defendant stated that he was an Assistant Photographer in the movie industry and earned about $30,000 a month. The drugs found on him at the time of the incident were bought by him for his own consumption for the price of $10,000. That quantity of drugs could last him 20 days. The Defendant had been in drug addiction since 1982. He admitted that he had 19 convictions, 9 of which were drug-related, and 8 out of those were offences of possession of dangerous drugs. Only the first record in 1982 was possession of dangerous drugs for the purpose of trafficking. The Drug Addiction Treatment Centre Report dated 3 June 1999 pointed out that the Defendant had been sentenced to the Centre three times in 1982, 1990 and 1993 respectively for treatments but these were all ineffective. The report also pointed out that the last time the Defendant consumed heroin was in January 1999. However, according to the examination carried out by a medical officer, the Defendant was no longer drug-dependent. Before the trial judge imposed sentence, the lawyer for the Defendant explained on his behalf why he was not drug-dependent: the Defendant was arrested on 13 November 1998 and granted bail on 20 December. However, the bail was revoked by court on 15 January 1999, and the Defendant remained in custody from that day until 3 June 1999. As a result, he got rid of his addiction during the 5 odd months of custody.

28. For the above reasons, this Court considers it inappropriate for the trial judge to sentence the Defendant to 3 years' imprisonment without first considering the cases of the Court of Appeal about sentencing for possession of "ice". With reference to the above cases about possession of heroin and "ice", this Court considers that the starting point for the Defendant for his possession should be imprisonment for 2 years. The quantity of heroin hydrochloride possessed by the Defendant was 48.32 grams, which was exceptionally large, and was close to the quantity possessed by the applicant for leave to appeal in the case of Chan Ching Ho, and the drugs were packed in as many as 137 packets. Although the Defendant had a decent job with a rather good salary, and he also stressed that the amount was for his own consumption and could only last for 20 days, this Court takes the view that the latent risk is really very high. Therefore, this Court considers that for the latent risk factor, 18 months' imprisonment should be added, making the overall starting point 3 years and 6 months. The Defendant is entitled to the usual 1/3 reduction in sentence for his plea to possession. Therefore, this Court takes the view that an appropriate sentence is 2 years and 4 months.

29. This Court treats the Defendant's application for leave to appeal as the appeal proper and allows the appeal. The original sentence of imprisonment for 3 years is set aside and a term of 2 years and 4 months is substituted therefor.

1 R v Lee Siu Lung, [1995] 1 HKC 39

2 R v Wu Chi Wai, Crim App No. 680 of 1995 (11 June 1996, unreported)

3 R v Chan Shing Hing, Crim App 725/96 (9 April 1997, unreported)

4 HKSAR v Lam Wai Ip, Crim App 214/97 (12 September 1997, unreported)

5 HKSAR v Chan Yat Sing, Crim App No. 777/97 (24 March 1998, unreported)

6 HKSAR v Lau Chi Chiu, Crim App 395/98 (29 September 1998, unreported)

7 HKSAR v Lai Kam Sang, Crim App 578/98 (23 March 1999, unreported)

8 HKSAR v Chew Sik Pok, Crim App 502/98 (29 April 1999, unreported)

9 HKSAR v Cheung Chun Fai, CACC 534/99 (25 February 2000)

10 R v Lau Tak Ming, [1990] 2 HKLR 370

11 AG v Ching Kwok Hung, [1991] 2 HKLR 125