HKSAR v. POON HO-WAI

CACC 313/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 313OF 2016

(ON APPEAL FROM DCCC NO. 461 OF 2016)

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J U D G M E N T

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1.  The applicant, who appeared in person having been refused the grant of legal aid on 18 November 2016 and 9 January 2017, sought leave to appeal against the sentence of 3 years and 6 months’ imprisonment imposed on him by Deputy District Judge Bina Chainrai on 22 September 2016, following his conviction on his plea of guilty on 8 September 2016 to a charge of trafficking unlawfully on 16 March 2016 in a dangerous drug, namely 53.24 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The facts

2.  On 16 March 2016, the applicant was intercepted by police officers as he walked towards Room 1706, Kai Wong House, Kai Tin Estate, Lam Tin, Kowloon.  He explained that he lived there with his mother.  On entry to the premises the police officers found inside the applicant’s bedroom two bags containing the ketamine, the subject of the charge, 243 re-sealable plastic bags and an electronic scale.

3.  Having been arrested and cautioned, the applicant admitted that the substance was ketamine and claimed that it was for his own use.  In a subsequent video recorded interview, the applicant claimed that:

(a) he was the only person who had access to his bedroom, which he locked when he went out;

(b) he purchased the ketamine from his old friend “Ming” for about $1,000 odd dollars in late February 2016;

(c) he consumed some of the ketamine on two subsequent occasions, on each of which he consumed around 2 grammes;

(d) he had used the electronic scale to measure the drug before consumption;

(e) he was unemployed; and

(f) the re-sealable plastic bags were for packaging the necessary dosage for consumption on separate occasions.

4.  The estimated street value of the ketamine was $14,506.  For the purposes of his plea of guilty, the applicant accepted in the Summary of Facts that he was in possession of the ketamine for the purpose of unlawful trafficking.

Mitigation

5.  In mitigation, Ms Panesar claimed that 50% of the ketamine was for self-consumption.  Mr Poots, for the prosecution, indicated that he remained “neutral” on the claim.  Ms Panesar said that the applicant was seriously addicted to dangerous drugs.  He lost his job as a property agent at the time of the offence and had taken to consuming ketamine, which habit he was able to afford by working as a casual worker for a construction company.

Reasons for sentence 

6.  Having adverted to the judgment of this Court in the Secretary for Justice v Hii Siew Cheng & Another ^[1]the judge noted that the guidelines stipulated by the Court for unlawfully trafficking in 50 to 300 grammes of ketamine fell within the range of 6 to 9 years’ imprisonment.  Then, having said that deterrence was of paramount consideration in sentencing in these circumstances, the judge stipulated a starting point for sentence of 6 years’ imprisonment.

Self-consumption

7.  Having noted that Mr Poots conceded on behalf of the prosecution that “some of the dangerous drugs” would be for self‑consumption, the judge noted that the applicant had made that claim in his out-of-court record of interview.  In that context, the judge adverted to the judgment of this Court in HKSAR v Chow Chun Sang ^[2] and cited part of the judgment of Yeung VP :

“ …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.”

8.  Of that, the judge said “The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case.”  Then, the judge said :

“ I have taken into account that the Defendant is a drug abuser and that some of those drugs would have been for his own consumption. There was no direct evidence of sale of any drugs. Nor is there any evidence that the Defendant was involved in premeditated and organized trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question. I have borne in mind too that the Defendant worked only on a casual basis. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands. Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure.

Looking at those features of the case, I shall discount the starting point by 9 months – a discount of about 12.5% – to reflect that some of the dangerous drugs were for the Defendant’s own consumption.  I have decided that the appropriate starting point for this offence is therefore one of 5 years and 3 months’ (i.e. 63 months) imprisonment.”

One-third discount

9.  Finally, having stated that she afforded the applicant a discount of one-third to reflect his plea of guilty, the judge sentenced the applicant to 3 years and 6 months’ imprisonment.

Grounds of appeal

10.  Attached to Form XI, by which the applicant gave notice of his application for leave to appeal against sentence, was a submission in which the applicant asserted merely that the sentence was excessive.  In home-made written submissions, dated 5 December 2016, the applicant claimed that, given that it was accepted that some of the dangerous drugs were for his own use, he fell to be sentenced in the lower band of 10 to 50 grammes band.  Further, he submitted that the reduction of sentence should be in the range of 20 to 25 percent.  Also, he invited the Court to take into account that this was his first offence of unlawfully trafficking in dangerous drugs.

11.  In his submissions to the court today, the applicant asked for an adjournment.  He said that he wished to instruct a private lawyer.  He said that he was aware of a case in the District Court where a defendant had been afforded a discount of 20 percent to reflect the fact that some of the 46 grammes of ketamine were for his own use.

Respondent’s submissions

12.  In the submission of the respondent it was submitted that, having regard to the guidelines set out in the judgment of this Court in Hii Siew Cheng the judge was correct to have stipulated a starting point for sentence of 6 years’ imprisonment.

13.  Of the issue of the self-consumption, the respondent invited the Court to have regard to the judgment of this Court in HKSAR v Wong Suet Hau & Another ^[3] , which provided an analysis of the factors relevant to a determination of whether, and to what extent, a court should accept a submission that part of the dangerous drugs in which the defendant trafficking unlawfully were for self-consumption.  Relevant to those factors was the background of the applicant, including the fact that he had two previous convictions for possession of dangerous drug(s), as was the history of drug addiction described in the probation officers report.  Also, relevant was the fact that the dangerous drugs were contained in two bags, that the applicant had 243 re-sealable bags and an electronic scale; the value of the drug; and the employment status of the applicant. 

A consideration of the submissions

14.  It being more than six months since the applicant had filed Form XI, giving notice of his application for leave to appeal against sentence, and having regard to the fact that he had been refused legal aid twice and the fact that he proposed referring the Court only to a District Court judge’s sentencing in another case with its own set of facts, I declined the application for an adjournment.

15.  There is no merit in the applicant’s submission that the judge ought to have stipulated a lower band for sentencing to determine the starting point, in order to reflect the preparation of the dangerous drugs that she determined the applicant to have for self-consumption.  The judge adopted the appropriate approach by taking a starting point for sentence of 6 years’ imprisonment which she discounted by 12.5% for that factor.

16.  In determining the discount to be afforded to the applicant, the judge adverted to a number of the relevant factors that were identified in the judgment of this Court in HKSAR v Chow Chun Sang.  It is to be noted that the discount to be afforded to a defendant convicted of trafficking unlawfully in dangerous drugs to reflect the fact that “all or part of the drugs are intended for the trafficker’s own consumption”, namely a discount in the range of 10% to 25%, applies only in the circumstances where “all or a significant proportion” of the dangerous drugs is for self‑consumption.

17.  I am unable to detect any error in the judge’s analysis, the discount that she afforded to the applicant and the resulting sentence imposed on the applicant.

Conclusion

18.  Accordingly, I refuse the applicant leave to appeal against sentence.  I advise him that he has the right to renew his application for leave to appeal against sentence to the full Court.  However, I warn him that, if he renews the application and the full Court finds it to be renewed without justification, it may order that some or all of the time that he has spent in custody since he gave notice of the application not to count towards completion of his sentence.

[1] Secretary for Justice v Hii Siew Cheng & Another [2009] 1 HKLRD 1.

[2] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at paragraph 19.

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