HKSAR v. TSOI MAN CHUN

CACC 414/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 414 OF 2015

(ON APPEAL FROM HCCC 23 OF 2015)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

1.  On 18 November 2015, the appellant appeared in the High Court before Zervos J (“the judge”) on an indictment containing seven counts. He pleaded guilty to the second, third and fifth counts. The remaining counts in the indictment were all alternative counts to those to which he pleaded guilty. Count 2 alleged the appellant unlawfully trafficked in 3.63 grammes of a mixture containing 2.62 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Count 3 alleged the appellant had in his possession 0.29 gramme of a crystalline solid containing 0.28 gramme of methamphetamine hydrochloride (“Ice”), contrary to section 8(1)(a) and (2) of the ordinance. Count 5 alleged the appellant unlawfully trafficked in 12.68 grammes of a crystalline solid containing in 12.34 grammes of “Ice” and 3.59 grammes of a powder containing 2.55 grammes of ketamine.

2.  The fourth count in the indictment was identical in nature and in its particulars to the fifth count except that in the fourth count the appellant was jointly charged with his son with unlawful trafficking.  When the son pleaded not guilty to this count he was separately tried on a re-amended indictment that contained a single count identical to count 4; ie the son was tried on a count which alleged that he, together with the appellant, unlawfully trafficked in the same dangerous drugs which are the subject of count 5.  But, surprisingly, in count 5 the appellant was charged alone with unlawfully trafficking in these drugs.  On 23 November 2015 the son was convicted of his count after a trial, also presided over by Zervos J.

3.  On 24 November 2015, the appellant and his son were both sentenced to 6 years’ imprisonment.  The appellant’s sentence was achieved by ordering all of the sentences for each of the three counts to be served consecutively.

4.  On 8 December 2015, the appellant filed a Notice of Application for Leave to Appeal (Form XI) in respect of his sentence.  On 14 October 2016, Lunn VP granted the appellant leave to appeal against his sentence.

5.  At the hearing of the appeal we reserved our judgment and said we would hand it down at a later date.  This we now do.

The background to the offence

6.  The Summary of Facts admitted by the appellant and used for the purpose of his sentencing revealed that the appellant was intercepted by a party of police officers at about 14:21 hours on 18 May 2014 whilst they were patrolling in lower Wong Tai Sin Estate.  When the police searched the appellant they found he was holding in his hand 19 packets containing what was later confirmed to be heroin hydrochloride, the drugs the subject of count 2.  Upon being cautioned, the appellant said: “I sell the white powder for someone to make a living.”  When asked who he sold it for, the appellant did not reply.

7.  The police then searched the appellant’s person and found in the right pocket of his trousers a plastic bag containing the “Ice”, the subject of count 3.  Also in this trouser pocket was a quantity of cash amounting to HK$2,560.  Having been cautioned in respect of this packet of drugs, the appellant said: “Sir, the bag of dangerous drug Ice is for my own consumption not for trafficking.  Just believe me, will you.”  The appellant was then taken to Wong Tai Sin police station for further enquiries.

8.  Between 14:12 hours and 14:49 hours on 19 May 2014 at Wong Tai Sin police station the appellant was video interviewed under caution.  In that video caution interview the appellant said:

(i)  he sold number 4 heroin to earn commission;

(ii)  he had no idea who he sold the drugs for;

(iii)  someone had asked him to get the drugs so he went to a food stall in the Mushroom Pavilion in Wong Tai Sin to collect them;

(iv)  the “Ice” seized from him was for his own consumption and   he consumed “Ice” every night using an “ice pot” at his flat in Choi Wan Estate;

(v)  he consumed heroin at his flat which he took previously by injection but now by putting it in a cigarette;

(vi)  he had purchased the “Ice” for HK$100 and had no idea of the person from whom he purchased it;

(vii)  he would approach his friend Ah Hung who would arrange for someone to deliver the drugs to him; and

(viii)  the HK$2,560 seized by police from him had been earned from selling “white powder”.

9.  On 19 May 2014, police officers escorted the appellant to the flat at Choi Wan Estate and gained entry to it with keys they had found in the appellant’s possession.  Tsoi King Hung, the appellant’s son and, originally, his co-defendant, was found in the premises. 

10.  In the son’s bedroom police discovered, on the top of a cardboard box on the top of a wardrobe, the “Ice” and ketamine that are the subject of count 5.  They were contained in four plastic bags.  One of the plastic bags had a note with it and on the note was written the name “Ruby”.  In the same location the police also found some empty resealable plastic bags. 

11.  In the living room of the flat the police found two glass pots, glass tubes for inhaling “Ice”, other drug consuming equipment and a box containing 123 empty resealable plastic bags. 

12.  The appellant was cautioned in respect of what had been found in the son’s bedroom and in reply said:

“The dangerous Ice is mine.”

13.  In a subsequent video record of interview, the appellant further claimed that all the drugs found on the premises belonged to him and were for his own consumption.  He also stated that he did not live at the flat but went there about twice a week and had keys to it.  He said it was his son’s home.  He said that the drugs in the flat had been ordered by him and had been delivered to him downstairs from this flat.  He claimed that the “Ice” contained in the plastic bag with the note that had “Ruby” written on it and the plastic bag of ketamine were purchased by him for his own consumption.

14.  In respect of the other drug equipment he claimed he did not know where the plastic bags came from but he admitted to having purchased the glass pots and tube in order to consume “Ice”.

The mitigation

15.  The appellant was 60 years old at the time of his sentence.  He had three children, one of whom, a son, was a co-defendant.  Mr Paul Leung, counsel for the appellant at the sentencing hearing quite frankly submitted that the appellant had a serious drug addiction problem which had begun in 1990.  He had a string of convictions relating to possession of dangerous drugs that dated back to 1994. At first he used heroin and later he turned to “Ice” and ketamine.  From the beginning of 2014 he has been mainly using “Ice”.  Mr Leung explained to the court that in order to fund his addiction, the appellant turned to selling heroin, which was what he was doing at the time of his arrest.

16.  Mr Leung submitted in mitigation that, except for the heroin, the appellant’s position had always been that the other dangerous drugs that had been seized were for his own consumption.  In response to the judge’s observation that the appellant had pleaded guilty to trafficking for count 5, Mr Leung explained that the trafficking of the dangerous drugs was on the basis that the appellant “let his son help himself to it.” 

17.  The following exchange then took place between Mr Leung and the judge:

“COURT: Right, so you’re saying that because I’ve allowed my son to use these drugs, I’m therefore dealing in the drugs and therefore trafficking. That’s what you’re saying?

MR LEUNG:  That is the basis he plead guilty.  But nevertheless, I accept that it is trafficking and is still a serious offence.  I’m not shying away from the fact.”

18.  However, Mr Leung emphasised that the bulk of the drugs were for the appellant’s own consumption:

“MR LEUNG: Yes. But my Lord, the basic position is this. He was giving drugs to his son, but it remains the fact that a large proportion of the drugs was for his own consumption and I would urge your Lordship to have regard to that.

COURT: So are you urging me to factor that in, and give some downward adjustment, because there is self-consumption?

MR LEUNG: That is what I would invite your Lordship to do.

COURT: Are you saying that the drugs that were in the bedroom of the son were his drugs or were they jointly possessed and owned by them?

MR LEUNG: Well, I suppose in law, it is a case of joint possession.

COURT: No, I know, but there’s also the factor that, notwithstanding that you’re alleging that there was self‑consumption, he’s still in possession of drugs. That’s a factor that needs to be borne in mind.

MR LEUNG: Yes.

COURT: But also, they’re in possession of drugs in a household and there’s the latent risk factor that the drugs are accessible to others that come and go in the house.

MR LEUNG: I accept that, my Lord.

COURT: So, in terms of what reduction I can give on the basis of self-consumption, I have to take into account that drugs were in the possession of them and in a household where people, other people were coming and could have been accessible to the drugs.

MR LEUNG:  I accept that, particularly in this case, there are several people living in the household.”  [Italics added.]

19.  Subsequently, counsel repeated his assertion that a “large proportion” (was for self-consumption) for his part the judge said:

“And I will bear in mind what you’ve said about self-consumption.”

20.  In the course of the exchanges between Bench and Bar the judge also made clear his view of the morality of the appellant’s actions in sharing drugs with his son. This is reflected in the following exchanges:  

“COURT: The fact is that, it’s his case or it’s his position, that he’s giving the drugs to his son, and that’s the basis of the trafficking offence.

MR LEUNG: Yes.

COURT: Means that he’s quite content to harm his son in giving him drugs, knowing that they’re going to harm him.

MR LEUNG: I must accept that that is the case. But it’s no different...

COURT: It’s fairly abhorrent that a father would do that to a child.

MR LEUNG: Well, perhaps...

COURT: I mean, it’s abhorrent doing it to anybody, giving drugs to anybody.

MR LEUNG: Yes. It is bad...

COURT: But a father and son relationship, one would think that...

MR LEUNG: Well, my Lord, there’s...

COURT: ...the notion of giving it to your child.

MR LEUNG: I accept, perhaps it’s particularly distasteful when...

COURT: It is distasteful.

MR LEUNG: Yes. However, the son was already a drug addict. He wasn't, in any way, introducing him to this...

COURT: Well, he’s got a father who’s been taking drugs for the last 20 years. I don't think he’s -- and he’s in his 20s. All he’s been subjected to is a father that’s constantly taking drugs in an environment where there’s drug-taking and drug trading. I don't think he had much of a chance, did he?

MR LEUNG: Well, I accept, though it is sort of sharing arrangement. It is bad.

COURT:  Well, I think the father has been a malign influence on the son.  There’s no question about that.”

21.  Mr Leung referred the judge to the relevant sentencing principles for each of the charges.  For the second charge involving 2.62 grammes of heroin the relevant case is R v Lau Tak Ming[1] and the relevant sentencing band is 2-5 years’ imprisonment for up to 10 grammes of narcotic.  Discussion also took place in respect of the fifth count, which involved two types of dangerous drug, “Ice” and ketamine, and whether in calculating the sentence for this count the individual approach or the combined approach should be employed.  On this issue Mr Leung referred the judge to the Court of Appeal’s judgment in HKSAR v Ko Ka Hing[2].  In the course of the exchanges with Mr Leung the judge indicated that the combined approach would lead to a lower starting point.  Mr Leung then submitted that the judge should “adopt the approach that would give the most favourable result to the defendant”.

The judge’s Reasons for Sentence

22.  The judge firstly referred to the circumstances of the offence and then turned his attention to the appellant.  He said:

“I will deal with the sentencing of the father first. As I said, the father has many prior convictions for drug offences. He is 60 years of age and it would appear at the time of the offence he had a serious drug addiction problem which had lasted for 20 years. He has been a bad role model for his son, who is in his early 20s and has probably been exposed to his father’s drug problem all his life and that has in all likelihood led him into a similar life. I will bear this in mind when I come to sentence the son.

Mr Paul Leung who appears on behalf of the father had submitted in mitigation that his plea of guilty to the trafficking of the drugs found at the flat was on the basis that the drugs were for his self-consumption and he would also give the drugs to his son to consume. In other words, the father is admitting to trafficking on the basis that he gave the drugs to his son.

The giving of drugs to anybody is abhorrent but the giving of drugs to your own child is inexplicable.

On this issue of trafficking, I note that the drugs had on one of the bags the name of ‘Ruby’ which would indicate that the bag was to be given to a person by that name.

There is no meaningful mitigation that can be advanced on behalf of the father.  He has been unemployed since 1994 and constantly in trouble with the law due to his drug addiction.  He has ruined the lives of those around him, not to mention the serious harm that he would have caused to others by trading in the drugs that he has now admitted.”

23.  The judge then addressed the appropriate sentences to be imposed in respect of each of the three counts.  In regard to count 2, the judge, having adverted to the guidelines set out in the judgment of R v Lau Tak Ming, adopted a starting point for count 2 of 24 months’ imprisonment.

24.  In respect of count 3, the judge observed that as the amount of “Ice” was “very small” in quantity and it was accepted to be for self‑consumption, he would adopt a starting point for sentence of 6 months’ imprisonment.

25.  In respect of count 5, the judge noted that it concerned two different kinds of dangerous drugs, namely, 12.34 grammes of “Ice” and 2.55 grammes of ketamine and he discussed the calculation of the sentence by using the combined approach or the individual approach.  After considering the results of using each of these approaches, and the submissions advanced on behalf of the appellant by his counsel, the judge determined that the “combined approach” to sentence, rather than the “individual approach”, was the appropriate method by which to calculate the appellant’s sentence. Using this approach the judge then adopted a starting point of 7 years and 3 months’ imprisonment for count 5.

26.  On the issue of self-consumption, the judge accepted that part of the “Ice” in question could have been used for self-consumption but also observed that that there was a risk that the dangerous drugs might be abused by others.  He said:

“I also accept that some of the Ice would have been used for self‑consumption. That was evident by the smoking equipment for drugs, including two Ice pots, which were found in the cabinet in the living room. I will therefore make an adjustment to the sentence to reflect the fact that not all the drugs were for trafficking although it is still the case that the drugs were in the possession of the father and son and that there was a risk that some of the drugs might have found their way into hands of others, bearing in mind the array of drug-smoking equipment that was found in the cabinet of the living room and the fact that people would come into the flat from time to time. The adjustment therefore will only be slight.”

Because of these other factors, the judge reduced the starting point for count 5 to allow for self-consumption by only 3 months, thereby resulting in a sentence of 7 years’ imprisonment. Although he did not specify a particular percentage discount for this factor, the reduction of 3 months represents an approximate discount of 3%.

27.  A full one-third discount was given to the appellant to reflect his pleas of guilty with resulting sentences, for count 2, of 16 months’ imprisonment, for count 3, of 4 months’ imprisonment and, for count 5, of 4 years and 8 months’ imprisonment. 

28.  The judge then went on to consider whether the sentences for counts 2 and 3 should be ordered to be served consecutively and concluded that they should.  He considered that the combined sentence, namely, 20 months’ imprisonment, was not excessive.  He said:

“I considered whether to make an adjustment to the sentence taking into account the totality principle but decided against it because the offences were distinct, one relating to trafficking in heroin and the other possessing ‘Ice’ probably for his own use and that the combined sentences are not excessive for the overall offending involved.”

29.  Finally, the judge turned to whether the sentence for count 5 should also be served consecutively.  The judge noted that if it was ordered to run consecutively then the resulting aggregate of the sentences for all three counts would be 6 years and 4 months’ imprisonment.  The judge said that, after taking into account the totality principle, he was of the view that a total sentence of 6 years’ imprisonment was the appropriate sentence for the appellant’s overall offending.  In order to achieve this end he reduced the sentence on count 5 to 4 years and 4 months’ imprisonment and then ordered all sentences to run consecutively to each other.

The Perfected Grounds of Appeal Against Sentence

30.  In his Perfected Grounds of Appeal Against Sentence, Mr Whitehouse, who appeared for the appellant on the appeal, made it clear that he did not complain about the sentences in respect of the second count (starting point of 2 years reduced to 16 months for trafficking in 2.62 grammes of heroin), or the third count (6 months reduced to 4 months for possession of 0.28 gramme of “Ice”) which he accepted were proper sentences.  He also accepted that the judge’s use of the combined approach to arrive at a sentence for the fifth count was correct.  What he does complain about are errors that he asserts were made by the judge in:

(i) the amount of the discount he allowed on the fifth count for self-consumption;

(ii) ordering the sentences for the third and fifth counts to run consecutively which, he submits, should have been ordered to run wholly concurrently. 

31.  In support of his ground relating to the discount for self‑consumption in respect of count 5, Mr Whitehouse relied on HKSAR v Chow Chun Sang[3], which he suggested was authority for the proposition that the discount for self‑consumption should be between 10% to 25% of the basic starting point.  Here, the discount was about 3% only and as the judge’s discount was outside the 10% to 25% range, this court, it was submitted, could find error by the judge which would justify appellate intervention.  It was Mr Whitehouse’s submission that a discount of at least 10% should have been given and had this been done then the judge’s starting point of 7 years 3 months would have been reduced by 9 months to 6½ years.  When this is then discounted by one-third to allow for the plea of guilty the final sentence for count 5 becomes 4 years and 4 months’ imprisonment.

32.  In respect of the order that the sentences for counts 3 and 5 should be served consecutively, Mr Whitehouse submitted that the “Ice” that is the subject of count 3 can be inferred to have come from the same source as the “Ice” that is the subject of count 5. In these circumstances, he submitted the sentence for count 3 ought to have been ordered to be served concurrently with the sentence of imprisonment for count 5.  Mr Whitehouse relied on the judgment of the Court of Appeal in HKSAR v Law Pun Sing[4], where it was held that where the dangerous drugs obviously came from the same source, namely the premises in which the applicant had been present, the court ought to have regard to the total amount of the drugs.  The small amount of the dangerous drug the subject of the possession charge would not, had it been added to the drugs the subject of count 5, have affected the calculation of sentence for that count of unlawful trafficking.

33.  Regarding the provenance of the “Ice” found on the appellant, Mr Whitehouse submitted that a reasonable inference was that the small quantity was from the appellant’s store that was kept in his son’s bedroom and which is the subject of count 5.  Thus, on the reasoning in HKSAR v Law Pun Sing, the sentence for count 3 should have been made concurrent with the sentence for count 5.  If the sentence for count 3 is made concurrent with the sentence for count 5, and the adjusted sentence for count 5 of 4 years 4 months’ imprisonment is made consecutive to the sentence for count 2 of 16 months’ imprisonment, then the total sentence for the appellant’s overall offending becomes 5 years 8 months’ imprisonment. If the discount of 4 months that the judge awarded is also used to reduce this figure the final sentence becomes 5 years 4 months’ imprisonment.

The respondent’s submissions

34.  Mr Andrew Li, Senior Public Prosecutor, for the respondent, acknowledged that in HKSAR v Chow Chun Sang, the Court of Appeal said that in sentencing for the offence of unlawful trafficking in dangerous drugs, the fact that “all or part of the dangerous drugs” were for the defendant’s self‑consumption was a mitigating factor and the discount to be afforded for this mitigating factor, depending on individual circumstances, should be between 10% and 25% of the basic starting point.  However, in the present case the quantity of the dangerous drugs to be used for self-consumption was not determined.  He further submitted that the judge was correct to have regard to the latent risk that the dangerous drugs would be unlawfully trafficked by the appellant to others.  He also submitted that, in view of the appellant’s appalling criminal record, relating mostly to drug offences, and that he had admitted to providing dangerous drugs to his son, the judge could have adopted a starting point for count 5 higher than the one he did.

35.  In respect of count 5 the judge, after having regard to the principle of totality, afforded the appellant an additional discount of 4 months from the sentence of 6 years and 4 months’ imprisonment that he would otherwise have imposed.  The respondent contended that the appellant had been afforded a total discount of 7 months in respect of count 5 (in addition to the one-third discount), which represented a discount of about 8% from that taken as a starting point.

36.  In respect of Ground 2, that is concerned with whether the sentence for count 3 should be made concurrent with the sentence for count 5, the respondent submitted that regard had to be had as to whether there was a nexus between the possession of dangerous drugs at one place and the unlawful trafficking in dangerous drugs elsewhere.  In HKSAR v Castano Arango Jose Reinel[5], the Court of Appeal quashed the judge’s order that the sentence for the possession of dangerous drugs should be served consecutively to the other sentences for unlawfully trafficking in dangerous drugs.  The Court of Appeal fined the appellant $10,000, in default of payment of which it fixed a sentence of two weeks’ imprisonment, which sentence was to be served concurrently with the other terms of imprisonment. 

37.  The respondent however submitted that there was, in the present case, no evidence that the “Ice”, the subject of count 3, came from the same source as the “Ice” the subject of count 5.  As the appellant admitted that he consumed “Ice” on the premises, the respondent challenged that there was no reason for him to take the “Ice” found in his trousers pocket away from the premises.  Furthermore, the appellant admitted that the “Ice” in count 3 was purchased for $100 but the “Ice” in count 5 was purchased twice a week, each time for half an ounce for about $1,000.  The respondent submitted that the indications pointed to the conclusion that the “Ice” in counts 3 and 5 were not connected closely in time and factually; hence, the judge was entitled to order that the sentences for the two counts should run consecutively.

Discussion

38.  Mr Whitehouse does not take issue with the sentences the judge imposed for counts 2 and 3 or with the judge’s decision to use the combined approach to reach a starting point for sentence for count 5 or with the order that the sentences for counts 2 and 5 should be served consecutively to each other.  That leaves only two issues raised by the appellant in this appeal. 

39.  The first issue is whether the sentence for count 3 should be served concurrently with count 5 on the basis that the inference that should be drawn is that the drugs in count 3 were just part of the “Ice” that are the subject of count 5.

40.  The second issue is whether the judge erred in the way he dealt with the submission that a significant proportion of the drugs in count 5 were for self-consumption. 

41.  Before we proceed to discuss these issues we should say something about the way the prosecution allowed the appellant’s plea of guilty to proceed for it made the task of the judge unnecessarily complicated and unusually difficult.

42.  As mentioned earlier in this judgment, the prosecution’s original position was that the father and son were in joint possession of the “Ice” that is the subject of count 5.  However, for reasons that are unclear to us, that position changed in respect of the father once the son went to trial.  The charges against both father and son now became mutually contradictory with the prosecution alleging in respect of the son that he and the appellant were in joint possession of the drugs but in respect of the appellant that he alone was unlawfully trafficking in them.

43.  As a consequence of proceeding in this way the judge’s task in trying assess both the appellant’s and his son’s culpability was made unnecessarily complicated. 

44.  In his Reasons for Sentence the judge described the prosecution case against the son as follows:

“The prosecution put its case against the son on the basis that he jointly with his father trafficked in drugs by storing them or possessing them for the purposes of trafficking.”

45.  Thus, he had to sentence the son on the basis that, together with his father, the appellant, he was commercially trafficking to others but at the same time he had to sentence the father on the basis that he was in sole possession of the drugs and socially trafficking them to his addict son. Implicit in the appellant’s scenario is that the son was not in joint possession of the drugs with his father.  Notwithstanding that in the course of his mitigation Mr Leung described the situation as being one of joint possession, no‑one queried how, in that situation, the drugs could be trafficked between two persons who were in joint possession of them.

46.  Faced with this situation, when the judge tried to assess the relative culpability of father and son in respect of the “Ice” stored in the flat which for this appellant was count 5, he may have lost sight of the fact that in count 5 the appellant was not charged jointly with his son.  When separately addressing the sentence of the appellant, the judge said in respect of this count:

“The next sentence that I have to impose relates to both the father and son in relation to the drugs found at the flat. …

…

I consider the father to be the most culpable in the joint charge with his son. However, it would seem that the son got involved with his eyes wide open and knew exactly what he was doing. But it does not change the fact that the father was a bad influence on the son and the most culpable out of two in this case. …

I also accept that some of the ‘Ice’ would have been used for self-consumption. That was evident by the smoking equipment for drugs, including two ‘Ice’ pots, which were found in the cabinet in the living room. I will therefore make an adjustment to the sentence to reflect the fact that not all the drugs were for trafficking although it is still the case that the drugs were in the possession of the father and son and that there was a risk that some of the drugs might have found their way into hands of others, bearing in mind the array of drug-smoking equipment that was found in the cabinet of the living room and the fact that people would come into the flat from time to time. The adjustment therefore will only be slight.

…

In relation to the son … I consider that the father had a malign influence on the son and was the more culpable in the commission of this offence.”

47.  What stands out very clearly from the judge’s Reasons for Sentence is his concern to do justice to the son; a task that was made more difficult by the prosecution’s confusing approach to the charge to which the father pleaded guilty.    

Counts 3 and 5

48.  The issue of whether counts 3 and 5 should be ordered to be served concurrently was not raised by defence counsel with the judge.  The sentencing principle on which Mr Whitehouse now relies is that if an offender is found in possession for self-consumption of a small amount from a larger quantity of the same drug in respect of which he is to be sentenced for unlawful trafficking it is not right that the punishment for the two offences should be greater than the sentence he would receive if he was sentenced for trafficking in both amounts.  In this situation the amount that the offender possesses for self-consumption will typically not be so great as to meaningfully affect the sentence for the trafficking offence.

49.  In HKSAR v Ip Yuet Ho[6] the Court of Appeal was faced with an offender who was manufacturing cocaine and trafficking in the finished product.  He also was found to be in possession of a small amount of cocaine in a shoulder bag which it was accepted was for his self‑consumption.  The trial judge ordered the 4 months’ imprisonment sentence for the possession charge to run consecutively to the sentences he imposed on the manufacturing and trafficking charges.  At paragraph 34 of its judgment the Court of Appeal said:

“If this amount [referring to the drugs the subject of the possession charge] had been part of the cocaine in the trafficking charge, it would have made no difference to the sentence. It could not be right, in our opinion, that because the applicant was going to consume this quantity himself he should now find himself faced with a longer sentence than he would have received if all the cocaine was to be trafficked by him.”[7]

50.  In the present case the appellant was found in possession of the “Ice” at a time when he was away from the premises in which the larger quantity was stored.  Mr Whitehouse asks us to infer that the drug on his person was sourced from the drugs in the flat.  The problem with this submission is that in his video interview the appellant claimed he purchased the “Ice” for $100 from a person he was unable to identify.  It may be that it is the difficulty posed by this claim that prompted the defence counsel not to pursue this issue at the sentencing hearing. 

51.  However, as Mr Whitehouse pointed out, no offender in the appellant’s position is going to tell the police that the small amount of “Ice” in his possession came from a much larger amount in which he was trafficking that was stored back at his flat.  We agree with Mr Whitehouse that no weight should be attached to the appellant’s statement and it should not inhibit this court from drawing an inference that the “Ice” on the appellant’s person came from the stash of “Ice” stored at the appellant’s flat.  Given all the circumstances of this case we are satisfied that that is the inference that should be drawn. That being so, this is a case where the sentences for counts 3 and 5 should have been ordered to be served concurrently. 

The claim to self-consumption

52.  The legal principles governing how a sentencing court should respond to a defendant’s claim that a part of the drugs in which he was unlawfully trafficking were for his own consumption are derived from the Court of Appeal’s decision in HKSAR v Wong Suet Hau & Anor.[8] At pages 79-80 of the judgment the Court of Appeal summarized the legal position in the form of a number of succinct propositions that are best quoted in full:

“(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that 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.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. 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.

Usually a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold：Criminal Pleading, Evidence and Practice 2002, para. 5-20).

(4) 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. However, in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

     An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice (see: HKSAR v Lam Wai Ip (unrep., Crim App No 214 of 1997, [1997] HKLY 349) and ecstasy (see: HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 at p.52, [1998] 2 HKC 371 at p.376).”

53.  A number of matters arise from what the Court of Appeal said.  They are:

(i) what must be claimed, and what must be proven to the judge’s satisfaction, is that all or a significant proportion of the drugs are for the defendant’s self-consumption;

(ii) the proportion of drugs for self-consumption must be such that, if true, it may well make a difference to sentence;

(iii) in determining whether the contention is true, the normal rules for determining the factual basis for sentence apply[9]; and

(iv) where it is accepted by the judge that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary for the sentencing judge to specify the relative amounts or proportions except in the broadest of terms.

54.  Since Wong Suet Hau it is clear that an offender is only entitled to a discount for self-consumption if the judge finds that all or a significant proportion of the drugs were to be consumed by him.  If he does not surmount this hurdle then he is not entitled to any discount.  What then is a significant proportion?  In Wong Suet Hau, the Court of Appeal said that the proportion of drugs for self-consumption must be such that it would make a difference to sentence.  In Chow Chun Sang the judge “accepted that more than half of the ‘Ice’ was for the appellant’s own consumption.”[10]

55.  Prior to Wong Suet Hau the Court of Appeal had recognized that if part of the drugs were for an offender’s own consumption that could be a mitigating factor which affected sentence.  However, in Wong Suet Hau the Court of Appeal made it clear that for such a claim to affect sentence the drugs that the offender would have consumed must be “all or a significant proportion” of the drugs in which he was unlawfully trafficking.  There may be occasions since Wong Suet Hau where the Court of Appeal has reverted to the old terminology but that is not to be taken as in any way departing from the “all or a significant proportion” formula which this court laid down in Wong Suet Hau.  This was made clear by Lunn VP in HKSAR v Tam Ling Yuen[11] when, in giving the judgment of the court, he said:  

“We have no hesitation whatsoever in rejecting Mr Fenton’s suggestion that the requirement clearly articulated in the reserved judgment of this Court in Wong Suet Hau that a discount of sentence was to be afforded only where the Court accepted that a “significant proportion” of the dangerous drugs in which the defendant trafficked unlawfully was for self-consumption had been abandoned or jettisoned, without any reference to it whatsoever, by this Court in Chow Chun Sang.”

56.  If the judge is satisfied that all or a significant proportion of the drugs were for the defendant’s own consumption then it will fall to the judge to assess the amount of discount that he should award the defendant from his pre-determined starting point.  Relevant to this issue are the comments of the Court of Appeal in HKSAR v Chow Chun Sang when it said[12]:

“ We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, 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 organised and premeditated, and the background and criminal record of the defendant. We need to emphasize 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 a defendant trafficked in.

      As pointed out by the Judge, possession of ‘ice’ for personal consumption is also an offence in itself. Furthermore, we 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.”

57.  In HKSAR v Ngai Ho Ting[13] the Court of Appeal said that unless the claim of self-consumption is so manifestly false or so wholly implausible the sentencing judge should conduct an analysis of the claim in accordance with what was said in Wong Suet Hau.  However, what was said by the Court of Appeal in Wong Suet Hau may have led to some uncertainty in how a sentencing court should proceed.

58.  The statement in Wong Suet Hau that a Newton enquiry may not usually be necessary may have been misunderstood as discouraging judges from holding such an enquiry.  Obviously, that was not the intention of the Court of Appeal for it specifically said that in resolving such a claim “the normal rules for determining the factual basis for sentence apply.”  Whether such an enquiry is necessary in order for the judge to determine the claim of self-consumption will inevitably be a case sensitive matter.  All that can be said is that once a credible claim is advanced it must be properly resolved through a process that is fair to the defendant, whether that be through a formal Newton enquiry or simply from exchanges between Bar and Bench and on the material placed before the court.

59.  In whatever form this process take place, it will necessarily require the judge to consider the risk that, notwithstanding the defendant’s intention that all or a significant proportion of the drugs will be consumed by him, some of the drugs might end up being trafficked.  The greater the risk, the more it will impact on the proportion of drugs that the defendant claims he would have consumed.

60.  In the present case the judge did not resolve the claim that was being advanced before him by making a specific finding of whether a significant proportion of the drugs were for the appellant’s own consumption.  He accepted that the appellant would consume part of the drugs but was also of the view that there was a risk that some of the drugs would end up being trafficked, whether in circumstances of social trafficking or otherwise.  In the end he afforded the appellant approximately a 3% discount, an amount far below the bottom end of the 10-25% range laid down in Chow Chun Sang.

61.  In these circumstances we are satisfied that the judge erred in the way he dealt with this issue and it now falls to us to sentence the appellant afresh.

Sentencing the appellant afresh

62.  There is no dispute that the starting point adopted by the judge for count 5 was correct.  However, Mr Li, for the respondent argues that this starting point should be enhanced to allow for the presence of two aggravating factors.

63.  The first is the appellant’s appalling criminal record and the second is the fact that he was trafficking drugs to his son.

64.  The appellant has 10 convictions for possession of dangerous drugs dating back to 1994 and ending in 2012.  He also has two convictions for theft and one for conspiracy to defraud.  It was only this latter offence, occurring in 2010, that attracted an immediate custodial sentence which was 18 months’ imprisonment.  For his drug addiction he has received the benefit of DATC, probation and fines as sentencing options, but none have worked.  In more recent times he has received either short periods of imprisonment or fines as punishment.  He has only one conviction for trafficking in a dangerous drug and that was in January 2013.  For this offence he was sentenced to 20 months’ imprisonment. Such a sentence suggests that, as with the second count, the appellant was caught in possession of a small amount of dangerous drug which he was trafficking in order to fund his own addiction.

65.  The question becomes whether this criminal record provides sufficient reason to justify an enhancement of the starting point for either or both of the sentences for counts 2 and 5.  In order to answer this question it is helpful to remind ourselves of the reason for treating a criminal record as an aggravating factor.  In HKSAR v Chan Pui Chi[14] the Court of Appeal discussed this issue and the principles flowing from that discussion are summarised in paragraphs 3 and 4 of the headnote:

“(3) Whilst the general principle was that a defendant was being sentenced for the offence which had brought him before the court and not for previous offences for which he had already served the penalty, the constant repetition in D’s trafficking in dangerous drugs had itself increased the gravity of the offences, at least so far as the sentence was concerned (R v Billam & Others (1986) 82 Cr App R 347 applied). (See p.833C-D.)

(4) Where the defendant was a persistent re-offender in the same or similar offences, the result was that the starting point which would have been adopted for a man of good character would sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. Much depended on the gravity of the crime: the graver the crime, the more obvious the need for a deterrent sentence. (See pp.833J-834C.)”

66.  The question is whether the appellant is a persistent offender for whom additional deterrence is needed in order to protect the public from him.  The appellant has only one prior conviction for trafficking in a dangerous drug and, as we have said, that incident of trafficking was, in all likelihood, of a fairly low scale.  The trafficking in count 2 was of an even lower scale and the trafficking in count 5 was social trafficking.  We are not persuaded that the criteria for enhancement are satisfied and we decline to regard this appellant’s criminal record as an aggravating feature for the offences for which he must now be sentenced. 

67.  In respect of the appellant trafficking drugs to his son, a majority of us are likewise not persuaded it should be regarded as an aggravating factor.  The basis of the appellant’s plea is that the “Ice” belonged to him but he allowed his addict son to access it and take some for his own consumption.  At the time of the offence his son was 23 years of age.  Nothing was placed before the judge to indicate how the son came to become addicted to “Ice” but clearly growing up in a home environment where drugs were being consumed by his father would have been a contributing factor.  But, without more information it is impossible for us to say that the father made an addict of his son and even less possible for us to say that having made an addict of his son he was maintaining his son’s addiction in order to be able to exercise control over him so that he had a willing accomplice in his unlawfully trafficking activities.  The judge himself said of the son:

“However, it would seem that the son got involved with his eyes wide open and knew exactly what he was doing.”

68.  The appellant’s conduct as a father, as appalling as we may find it, must have underlying it, a principled legal basis for us to find it is a factor which aggravates the seriousness of his offence.  The son is an adult and there is nothing to suggest that he was, at the time of the offence, a vulnerable person who was subject to the overbearing or intimidating influence of his father.  Whilst the father’s conduct shows that there was nothing to be said for him in mitigation other than that he pleaded guilty, a majority of us cannot see how the fact that the person to whom he socially trafficked the drugs was his adult son can be said to aggravate his conduct of unlawfully trafficking in a dangerous drug.  Having said that, we agree entirely with the judge that the son’s culpability in respect of the charge of which he was convicted was lessened as a result of the malign influence that the appellant had on him.

69.  That being so, a majority of us see no basis for enhancing the starting points of the sentences for either the second or fifth counts.

70.  Having determined that we should adopt the same starting point that was employed by the judge it now becomes necessary for us to decide by how much it should be discounted to allow for the claim that a significant proportion of the drugs were to be consumed by the appellant.

71.  The question of how the Court of Appeal should determine this issue appears to have first been addressed in R v Chan Mung Lung[15] where the Court of Appeal decided that it had no power to remit the case to the trial judge to resolve the question of whether on the facts, the claim of self-consumption had been made out and the appropriate course was for the Court of Appeal to pass a sentence “which reflects the factual version most favourable to the applicant.”  This decision was followed by the Court of Appeal in R v Chung Kam Fai[16] and R v Hiroyuki Sato[17].

72.  However, these cases never actually said what was meant by giving the facts an interpretation most favourable to the defendant. In all likelihood that was because those cases pre-dated decisions like Wong Suet Hau and Chow Chun Sang and the only issue before the court was whether the applicant had surmounted the hurdle of showing that part of the drugs were for his own consumption.  We are satisfied that, in terms of the law post-Wong Suet Hau, it means no more than that an applicant is entitled to be regarded as having passed the threshold of satisfying the court that a significant proportion of the drugs were for his own consumption.  Of course if the applicant had claimed that all of the drugs were for his own consumption, and if interpreting the facts in a way most favourable to him justified so finding, then the Court of Appeal would award him the full amount of the discount.[18]

73.  However, the fact that the sentencing judge has not made a finding on whether the drug was for the defendant’s own consumption does not require the Court of Appeal to sentence on the basis that all of the drug was for self-consumption.  In HKSAR v Mak Wai Ming[19] the Court of Appeal said at page 422, paragraphs 16-17:

“ Mr. Chan asserted that, where the Trial Judge made no finding on whether the drug imported by the defendant was for his own consumption, the appellate court must determine the sentence on the basis most favourable to the defendant, namely that all the drug was for the defendant’s own consumption.

 With respect, we disagree. We take the view that in drug trafficking cases, that the Trial Judge made no finding on whether the drug in question was for the defendant’s own consumption does not necessarily mean that the appellate court must determine the sentence on the basis that all the drug was for the defendant’s own consumption. The appellate court should determine the appropriate sentence in light of the facts of individual cases. Certainly, the appellate court should also give the defendant the benefit of the doubt, in keeping with the usual practice in criminal cases.”

74.  In respect of this appellant it is clear to us that, by adopting an interpretation of the facts most favourable to him, we can be satisfied that he has met the requirement of establishing that a significant proportion of the drugs was for his own consumption.  It now becomes necessary to determine what discount, within the 10-25% Chow Chun Sang range, should be awarded to him.

75.  The appellant’s guilty plea was on the basis that he would socially traffick in the drug to his addicted adult son.  The judge correctly inferred that the drugs in the bag with the note bearing the name “Ruby” on it were to be trafficked to a person by that name.  He also correctly inferred that there was a risk of other drug users having access to the drugs when they visited the flat.  Overall there was a high risk that a substantial proportion of the drugs would end up being trafficked and would not be consumed by this appellant. In these circumstances, we are of the view that the discount that should be awarded to the appellant for this aspect of his mitigation is 10% from the starting point of 7 years 3 months’ imprisonment.

76.  This results in a final starting point of 6½ years which must then be further discounted by one-third to allow for the appellant’s guilty plea.  When this is done the final sentence for count 5 becomes 4 years and 4 months’ imprisonment.

77.  The judge thought the appropriate totality for this appellant was a sentence of 6 years’ imprisonment and in order to achieve such a total sentence he reduced his sentence for count 5 by 4 months. Mr Whitehouse submits that we should give the appellant the same benefit of a 4 months reduction in our calculation of sentence. However, this 4 months reduction by the judge did not reflect any aspect of the mitigation advanced on behalf the appellant. Rather, it was just a tool employed by the judge to arrive at what he considered to be the appropriate totality for this appellant, namely 6 years’ imprisonment. But, since any sentence we impose will already be less than 6 years’ imprisonment, the rationale for the judge’s action in discounting the appellant’s sentence by 4 months has no relevance to us.

78.  If this sentence for count 5 is ordered to run concurrently with the sentence for count 3 then the only issue left is whether the sentence for count 5 should run wholly or only partially consecutively to count 2, and if the latter then by how much.  If the sentence for count 5 is ordered to run wholly consecutively to the sentence for count 2 then the total sentence the appellant would have to serve would be 5 years 8 months’ imprisonment. The question is whether this is a fair and just overall sentence or whether the totality principle requires us to order only a partially consecutive sentence.  

79.  In respect of the issue of whether the sentences for the two counts should be served wholly or only partially consecutively it is necessary to examine the totality of the two sentences against the overall culpability of the appellant’s wrongdoing.  Clearly, the offences being quite separate, with each representing additional culpability for the appellant, there is nothing in legal principle that would make it wrong to order consecutive sentences.  The sole issue is totality.  Mr Whitehouse, it should be said, did not contend that the two sentences could not, or should not, be ordered to be served consecutively. Standing back and looking at the overall sentence we cannot see any reason not to make such an order that they be served wholly consecutively to each other.

Conclusion

80.  For these reasons we allow the appeal and set aside the order for counts 3 and 5 being served consecutively.  We make no order in respect of the sentences of the judge in respect of counts 2, 3 and 5 other than to quash the order that the sentence for count 3 should be served consecutively with the sentence for count 5.  We order that that sentence is to be served concurrently with the sentence for count 5.  The total sentence imposed on the appellant is, therefore, 5 years and 8 months’ imprisonment.

[1] [1990] 2 HKLR 370

[2] [2009] 4 HKLRD 856

[3] [2012] 2 HKLRD 1121

[4] CACC 196/2011, unreported, 7 October 2011.

[5] CACC 174/2014, unreported, 18 December 2014.

[6] [2008] 6 HKC 35

[7] HKSAR v Ip Yuet Ho [2008] 6 HKC 35 at 40H-I.  This decision was applied in HKSAR v Law Pun Sing CACC 196/2011, unreported, 7 October 2011.

[8] [2002] 1 HKLRD 69

[9] See the discussion by the Court of Appeal on the defendant bearing the evidential burden on the issue of whether he intended to use part of the drug for his own consumption in HKSAR v Chong Chee Meng [2008] 6 HKC 407. 

[10] [2012] 2 HKLRD 1121, paragraph 7.

 [11] [2016] 2 HKLRD 572

[12] [2012] 2 HKLRD 1121, paragraphs 19 and 20.

[13] [2013] 4 HKC 547

[14] [1999] 2 HKLRD 830

[15] [1992] 2 HKCLR 127 at 130, lines 10-21.

[16] [1993] 1 HKCLR 178

[17] [1994] 1 HKCLR 119

[18] For an example of such a situation see HKSAR v Chow Kam Lung [2010] 4 HKLRD 253.

[19] [2012] 2 HKLRD 418