HKSAR v. CHEUNG WAI MAN

CACC 258/2017

[2018] HKCA 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 258 OF 2017

(ON APPEAL FROM HCCC NO 173 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  Following his plea of guilty before a magistrate on 22 May 2017, the applicant was convicted of one count of trafficking in 15.80 grammes of methamphetamine hydrochloride (commonly known as “Ice”); 17.48 grammes of heroin hydrochloride; and 0.14 gramme of midazolam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, for which he was committed to the High Court for sentence. On 7 August 2017, the applicant was sentenced by Deputy Judge Bruce, SC (“the judge”) to 6 years and 10 months’ imprisonment.

2.  The applicant filed a notice of application for leave to appeal (Form XI) on 22 August 2017, and now seeks to appeal against his sentence.

The facts

3.  At about 2151 hours on 29 August 2016, the applicant was intercepted by police officers on patrol when walking at Reclamation Street, Mong Kok, Kowloon.  Upon a search of the applicant’s shoulder bag, the police officers found an iron box, which contained the following items:

(i)  A plastic bag with 3.13 grammes of a mixture containing 2.47 grammes of heroin hydrochloride;

(ii)  A packet with 0.30 gramme of a mixture containing 0.16 gramme of heroin hydrochloride;

(iii)  Six foil packs with a total of 9 tablets and 1 tablet fragment containing a total of 0.14 gramme of midazolam; and

(iv)  A plastic bag of 36 tablets containing zopiclone, a Part I poison.

4.  The police officers further found the following items tied with a string of plastic tape to the applicant’s left armpit and left shoulder:

(i)  A plastic bag with 16.10 grammes of a crystalline solid containing 15.80 grammes of “Ice”;

(ii)  A plastic bag with 17.10 grammes of a mixture containing 13.60 grammes of heroin hydrochloride; and

(iii)  A plastic bag of 5 packets with a total of 1.59 grammes of a mixture containing 1.25 grammes of heroin hydrochloride.

5.  The applicant was also found in possession of other items including no less than five mobile telephones and cash in the sum of HK$11,860.  Accordingly, police officers arrested and cautioned the applicant, whereupon he responded that the dangerous drugs were for his own consumption, and asked for a chance.  In his subsequent video recorded interview, the applicant confirmed his admission at the scene and reiterated that the seized drugs were for his own consumption.

6.  The estimated street value of the seized dangerous drugs was HK$24,953 (“Ice” – HK$5,571; heroin hydrochloride – HK$18,802; midazolam – HK$580).  By pleading guilty and accepting the Summary of Facts, the applicant admitted that the seized dangerous drugs were in his possession for the purpose of unlawful trafficking.

Mitigation

7.  The applicant was a 42‑year old married man at the time of sentence.  He had worked in various jobs, one of which was as a used mobile telephone salesman earning some HK$20,000 per month.

8.  Mr Bok, counsel for the applicant both here and below, told the court that the applicant had been a heroin addict since he was 16 years of age.  He had been to a Drug Addiction Treatment Centre in 1996 and 2010.  During his remand in the present case, the applicant’s urine specimen tested positive for amphetamines.

9.  It was submitted that since the applicant’s monthly income from selling used mobile telephones could not support his drug habit, the applicant had to sell some of the dangerous drugs to others.  It was asserted that the applicant intended to keep between a quarter and a third of the dangerous drugs for his own consumption, as a result of which the starting point could be discounted by 10 to 25%, in addition to the discount for a timely plea.

Reasons for sentence

10.  Given the presence of more than one kind of dangerous drug, the judge determined that for trafficking in 15.8 grammes of “Ice”, the starting point should be 7½ years’ imprisonment; for 17.48 grammes of heroin hydrochloride, 5½ years’ imprisonment; and for 0.14 gramme of midazolam, 1 month’s imprisonment.  In determining the overall starting point, the judge said he was adopting the ‘combined approach’, that is firstly to calculate the applicable sentence for the more or most serious drug in terms of potency, and then adjust the sentence upwards to take into account significant quantities of the other less serious drugs.  However, the judge said he was equating “Ice” and heroin for sentencing purposes[1]:

“…as to the nature of Ice and judicially noticing the ravages of heroin hydrochloride, I judge these drugs to be so similar that no rational difference between them could be discerned for the purpose of sentencing. The sentencing approach of the courts of Hong Kong to these drugs is also so similar that such differences as there may be are minor. In my judgment, there is no practical value in taking one drug or the other as the base sentence.”

11.  The judge adopted a starting point of 13 years’ imprisonment.  Without expressly specifying how he arrived at 13 years’ imprisonment, it would appear that he simply added together the starting points for the “Ice” and heroin hydrochloride (ie 7½ + 5½ = 13 years).  He further reduced the starting point to 12 years’ imprisonment, in respect of which reduction he said “[t]hat may be a fraction merciful, but that is no bad thing”[2].

12.  On the issue of the applicant’s own consumption of some of the dangerous drugs, the judge accepted Mr Bok’s submissions that about a quarter to a third of the seized dangerous drugs were intended by the applicant for his own consumption.  The judge considered that to be a “significant proportion” of the whole of the drugs seized and thus granted the applicant a 15% discount from the starting point.

13.  The judge then discounted the sentence by one‑third for the applicant’s plea of guilty, arriving at a sentence of 82 months’ (or 6 years and 10 months’) imprisonment.

Grounds of appeal

14.  There is one ground of appeal, namely, that the starting point for sentence was wrong in principle and/or manifestly excessive.

15.  By simply adding up the quantities of “Ice” and heroin hydrochloride, the judge would have arrived at a quantity of 33.28 grammes of narcotic.  However, in HKSAR v Chan Yuk Leong[3], the Court accepted that a sentence of 8 years and 6 months’ imprisonment for 42.01 grammes of “Ice” was appropriate after trial.  Under the subsequently revised guidelines in HKSAR v Tam Yi Chun[4], Mr Bok argues that 33.28 grammes of “Ice” narcotic should have attracted a sentence after trial in the region of 8½ to 9 years’ imprisonment.

16.  Mr Bok places particular reliance on the judgment of the Court in HKSAR v Yip Pik Kwai[5], where the trial judge had sentenced the applicant to 7 years’ imprisonment for trafficking in 20.45 grammes of “Ice” and 5 years’ imprisonment for trafficking in 12.05 grammes of heroin narcotic, making a total starting point of 12 years’ imprisonment.  Yet, it was held, at paragraphs 7 and 8:

“7. We do not see any reason why a different approach should be adopted simply because the two separate parcels of dangerous drugs are of a different nature namely ice and heroin.

8. One slight problem which arises is that although both heroin and ice attract heavy sentences the progression up the scale in respect of the respective guidelines is not the same.  Having regard to the amounts involved it would appear that if the dangerous drugs had either all been heroin or all been ice the total sentence for the trafficking offence should have been somewhere in the region of 9 years’ imprisonment.  When the applicant is given the benefit of her plea that would reduce the sentence to 6 years’ imprisonment.  We consider this to be the fairest approach to this case.”

17.  Accordingly, Mr Bok submits that the starting point of 12 years’ imprisonment adopted by the judge under the ‘combined approach’ was in all the circumstances manifestly excessive.

The respondent’s reply

18.  Having cross-checked the starting point of 12 years’ imprisonment with the ‘absurdity test’, the ‘conversion test’ and the ‘ratio test’, Mr Man, on behalf of the respondent, concedes that the judge’s starting point was “on the high side”.  In fact, the judge seems to have erroneously adopted an ‘individual approach’ to each quantity of dangerous drug rather than the ‘combined approach’ when arriving at his starting point.

19.  Although the respondent concedes that the starting point adopted was arguably on the high side, he nevertheless observes that the judge should have considered an upward adjustment of the starting point, since the applicant had trafficked in three different types of dangerous drugs: see HKSAR v Yim Hung Lui Ricky[6], where the Court said, at paragraph 11:

“As pointed out by this Court the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”

20.  Mr Man further suggests that the 15 percent discount for the applicant’s own consumption was far too generous in the circumstances.  The applicant was unable to provide a precise percentage of the portion of dangerous drugs that he intended to consume himself.  As a matter of common sense, the larger the quantity, the less likely it was that the threshold of a “significant proportion” of the whole could be reached: see HKSAR v Yeung Shek Yung[7].  In HKSAR v Chow Chun Sang[8], it was accepted by the trial judge that over half of the “Ice” seized was for the applicant’s own consumption, yet, noting that the applicant had a bad criminal record, the Court of Appeal upheld the judge’s discount of 10%, whilst nevertheless agreeing that it was “on the conservative side”.

Consideration

21.  Whilst I have some concerns about the judge’s acceptance of the bald and somewhat vague assertion, without evidence, that a quarter to a third of the drugs were for the applicant’s own consumption, it is not necessary for me to go too far into an analysis of the facts, since the respondent accepts that the starting point was on the high side, and therefore the sentence arguably manifestly excessive.

22.  I agree with both Mr Bok and Mr Man that it is reasonably arguable that the starting point adopted by the judge was too high. In those circumstances, I shall simply give leave to appeal against sentence. The Court of Appeal, if it agrees that the judge’s approach to identifying the starting point miscarried, will no doubt consider sentence afresh, in which case the other issues of the possible enhancement for trafficking in three different kinds of dangerous drugs and the proper discount for the applicant’s own consumption will be dealt with by the Court.