HKSAR v. LEE CHUN MAN

CACC 360/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 360 OF 2014

(ON APPEAL FROM DCCC 751 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the Court):

Introduction

1. On 6 October 2014 the appellant appeared before District Court Judge Casewell (“the judge”) on a Charge Sheet containing a single charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.  The Particulars of offence alleged that on 3 June 2014, at Goldway Parking, at the junction of Ma Tau Pa Road and Yeung Uk Road, Tsuen Wan, the appellant had in his possession 79.01 grammes of a powder containing 55.58 grammes of ketamine and 2.32 grammes of a crystalline solid containing 2.28 grammes of methamphetamine hydrochloride (“ice”).  

2. He pleaded guilty to this offence and on the same day was sentenced by the judge to 2 years’ imprisonment. He applied for leave to appeal this sentence and on 5 February 2015 Lunn VP granted him leave to do so.

3. At the hearing of the appeal we gave judgment and allowed the appeal, quashed the sentence of the judge and in substitution for it sentenced the appellant to 20 months’ imprisonment. We said we would later give our reasons for our judgment and this we now do.

The background to the offence

4. At around 8 am on 3 June 2014, the police were conducting an anti-dangerous drugs operation at Goldway Parking, a car park located at the junction of Ma Tau Pa Road and Yeung Uk, Tsuen Wan.  They observed a medium goods vehicle that was parked inside this car park.  The appellant was seated in the driver’s seat and another male was sitting on the front left passenger seat of the vehicle.

5. A police officer opened the door of the driver’s side of the vehicle and saw the appellant push a can slightly away from himself towards the male person sitting on the front passenger seat.  He also saw white powder on the appellant’s nostrils.  This police officer revealed his identity and cautioned the appellant. 

6. A search was conducted of the vehicle.  The police found on the dashboard a tin which contained a resealable plastic bag containing the 2.28 grammes of ice particularised in the charge, a paper box containing a plastic bag containing 10.39 grammes of a powder containing 7.68 grammes of ketamine, a paper packet containing 0.38 gramme of a powder containing 0.29 gramme of ketamine, and a broken plastic spoon/stirrer.  The can which the appellant had pushed away as the police officer opened the vehicle door, was found to contain an electronic scale, a broken plastic spoon/stirrer, a paper packet containing 2.21 grammes of a powder containing 1.66 grammes of ketamine, and a resealable plastic bag containing six plastic bags containing a total of 66.03 grammes of a powder containing 45.95 grammes of ketamine. 

7. At the time of his arrest, the appellant was found to have $6,525.6 with him.  The dangerous drugs seized by the police were estimated to have a prevailing market price of $10,646.  The registered owner of the goods vehicle confirmed that the appellant was the designated driver of it.

Reasons for sentence

8. At the time of sentence, the appellant was 35 years of age and was gainfully employed in the transportation industry with a monthly salary of $16,000.  The judge noted that the appellant had to support his parents as his brother was disabled.  The appellant was the breadwinner of the family.

9. The appellant had a previous conviction for possession of dangerous drugs in 2002, for which he was fined.  The judge accepted that the appellant was a dangerous drug abuser and noted his claim that he has been an addict for only the last three years.  In mitigation it was said that the drugs were for the appellant’s own consumption, that he had finished work and was consuming the drugs before moving on somewhere else. 

10. The judge observed that two kinds of dangerous drugs were involved in this case.  He directed himself to follow the three stage approach of firstly adopting an appropriate starting point, then considering enhancing it for the latent risk that the drugs might be further distributed and finally adjusting the sentence to take account of the mitigation.  Having considered the nature and quantities of the drugs, the judge adopted a starting point after trial of 18 months’ imprisonment.

11. The judge then turned his mind to the issue of latent risk.  He took into account the following factors: (i) the appellant is an addict of both drugs; (ii) he had no criminal record for drug trafficking; (iii) he was in employment; (iv) he kept the dangerous drugs in a vehicle he used for work; (v) he had stored with him a means of consumption and an electronic scale (which would be useful in the distribution of drugs to others); and (vi) the amount of ketamine seized was substantial.  The judge concluded that he was unable to say that the latent risk was “negligible or small” but he did note that there was no evidence that the appellant had in fact distributed these drugs.  He ordered an enhancement of the starting point by 18 months on account of the latent risk factor.

12. The overall starting point adopted by the judge was therefore three years’ imprisonment. He reduced it by one-third to take account of the appellant’s plea of guilty and sentenced him to a term of imprisonment of two years.

Ground of appeal against sentence

13. The appellant has no quarrel with the initial starting point of 18 months’ imprisonment but complains that the enhancement of 18 months for latent risk was “manifestly excessive”.

Discussion

14. The law is clear that on a charge of simple possession the judge is obliged to adopt a three step approach to the assessment of sentence.  This was set out by the Court of Appeal in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.  It described the three steps at page 407F-H as being:

“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

 Step 3:  The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

15. How to assess step 2 was the subject of comment by Tang PJ in HKSAR v Minney (2013) 16 HKCFAR 26.  He said at page 32, paragraph 16 of the judgment:

“The assessment of the risk of dissemination depends on the drawing of the correct inference from the circumstances of the possession as established on the evidence. Before any such inference is drawn, the sentencing court must be sure that in all the circumstances of the particular case, the risk of dissemination is real. The sentencing judge is best placed to decide whether there is such a real risk. Often times, it is just a matter of common sense.”

16. Thus, the assessment of the risk is performed by determining whether the evidence allows of an inference to be drawn that in the circumstances of the case before the court there is a real risk of dissemination of the dangerous drug.  As to what factors are relevant to whether such an inference can be drawn was discussed by Stock JA, as he then was, in HKSAR v Mok Cho Tik [2001] 1 HKC 261.  At page 267D-E he said:

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.” [Emphasis added.]

17. The starting point for a consideration of this issue must therefore be to firstly ask the question whether the circumstantial evidence allows of an inference that there was a real risk of further distribution of the drugs.  We are of the view that the answer to this question is that it does and Mr Ross for the appellant does not argue to the contrary.  It is notorious that drug abusers may resort to selling drugs in order to fund their addiction or, in a social setting, share their drugs with others.  The appellant earned only $16,000 per month and was the breadwinner of the family.  Yet he was found in possession of drugs with a market value of $10,646 and of cash amounting to $6,525.6.  Furthermore, he had in his possession an electronic scale which could be used for measuring drug quantities.  All this evidence is sufficient to conclude that there was a real risk of further distribution thereby justifying an enhancement for latent risk. 

18. The next question is by how much should the initial starting point be enhanced.  Mr Ross points to the enhancement by the judge as doubling the initial starting point and cites to us a number of cases which suggest that an enhancement of 18 months on top of an initial starting starting point of 18 months is virtually the high watermark for enhancement.

19. The amount of the enhancement will depend on the degree of the latent risk.  The higher the level of risk the greater the amount of enhancement.  It will, therefore, be necessary for the sentencing judge to assess the degree of risk for it is the judge’s assessment of the degree of risk that will guide him in his determination of the amount of enhancement.  The cases would suggest that the enhancements made by the courts range from 6 months for a low degree of risk to 18 months or more for a very high degree of risk. 

20. The width of this range lends emphasis to the discretionary nature of the sentencing judge’s task and also lends emphasis to the point made by Stock JA in Mok Cho Tik that “the degree of risk is not a matter of mathematics upon which this court should provide a tariff.”[1]

21. In respect of the degree of risk the judge simply said:

“So I cannot say the latent risk in possession of this quantity, together with this equipment, is negligible or small.”

22. Mr Ross submits that the judge must have had in mind an assessment of a medium to high risk which he says would warrant an enhancement of only 9-12 months, and not the 18 months on which he determined.

23. The judge expressed himself negatively in terms of what the degree of risk was not.  We do not think it helpful to try and ascertain, by speculation at best, what degree of risk the judge might have determined if he had expressed himself positively.

24. We agree with the judge that the risk is not negligible or small but whether the degree of risk in respect of this appellant justifies an enhancement of 18 months will necessitate us determining what we would assess the degree of risk to be.

25. Here the factors relevant to such an assessment are:

(i) the quantity of drugs;

(ii) the way in which the drugs were packaged;

(iii) the presence of measuring equipment;

(iv) the value of the drugs;

(v) the presence of a significant quantity of cash;

(vi) the willingness of the appellant to openly consume drugs in the company of another; and

(vii) the vocation of the appellant which provided him with a ready means to transport drugs.

26. However, also relevant, is the fact that the appellant did not have any previous conviction for trafficking and was in steady employment from which he received a regular income.  Furthermore, once it is accepted that all of the drugs were acquired for the appellant’s own consumption the evidence of the street value of the drugs is of little weight as it is well known that addicts are sold drugs at a discounted price when bulk purchases are made.

27. Taking all these factors into account we agree with Mr Ross that the degree of risk in this case should be assessed in the range of medium to high and that in this case the appropriate enhancement is 12 months.

28. Adopting the same starting point as the judge, namely 18 months’ imprisonment, of which no complaint is made, and then enhancing it by 12 months to allow for latent risk, the sentence after trial should have been 30 months’ imprisonment.  Discounted by one third to allow for the appellant’s plea of guilty the final sentence becomes 20 months’ imprisonment.

Conclusion

29. For these reasons we allowed the appeal, quashed the sentence of the judge and in substitution for it imposed on the appellant a sentence of 20 months’ imprisonment.

[1] HKSAR v Mok Cho Tik [2001] 1 HKC 261 at 267D-E.