HKSAR v. WAN SHEUNG SUM

CACC 438/1999

HEADNOTE

Criminal law - possession of dangerous drugs - sentence - based upon three-step approach - (1) normal starting point (2) enhancement for latent risk of redistribution (3) adjustment of total sentence to take account of mitigation.

CACC 438/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 1999

(ON APPEAL FROM DCCC 429 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. The Applicant was charged with trafficking in heroin hydrochloride (charge 1) and possession of heroin hydrochloride (charge 2). He pleaded not guilty to charge 1 and guilty to charge 2. A trial then took place before Deputy Judge Tong Man in the District Court, as a result of which the Applicant was found not guilty of trafficking but guilty of possession. On 30 July 1999, the Applicant was sentenced to thirty-two months' imprisonment on charge 1 and to twelve months' imprisonment on charge 2, both sentences to be served concurrently. The Applicant now seeks leave to appeal against sentence.

2. At the outset, we can say we are greatly indebted to both counsel in this matter. It is apparent that the judge did err in the approach that he took to sentence and it is therefore necessary to look at the facts and the law briefly in giving our reasons for that conclusion. Counsel in the case are in agreement that the result must inevitably be that leave should be given and that the appeal should be allowed.

3. On 1 June 1998, during a police surveillance operation at the building where the Applicant lived in Shanghai Street, Kowloon, the Applicant was stopped as he made his way home. Concealed in the Applicant's underpants were found two packets of dangerous drugs. On analysis, these were found to be mixtures which contained 34.33 grammes of heroin hydrochloride (charge 1). Later, the Applicant's room was searched where a mixture containing 3.79 grammes of heroin hydrochloride (charge 2) was found.

4. The police questioned the Applicant. He said that the two packets which they had found on him had just been purchased by him and were for his "gradual consumption". He said that the smaller packet found in his room was left over from a previous purchase for self-consumption. He went on to say that while it was true he consumed white powder at his flat, the other occupants at his address had no knowledge of his possession of heroin.

5. The grounds of appeal which have been put before the court are firstly that the judge erred in adopting a starting point of four years' imprisonment on charge 1 and, secondly, when considering the latent risk factor, the judge did not give sufficient weight to the fact that the Applicant, although a drug addict, had no previous convictions for trafficking and was employed prior to his arrest.

6. In determining an appropriate sentence for an offender who is a bona fide user and is convicted of simple possession of heroin or methamphetamine hydrochloride (ice), the authorities indicate that the judges should adopt a three-step approach. (See: HKSAR v Chan Yat-sing, CACC 777/1997; HKSAR v Lau Chi-chiu, CACC 395/1998; HKSAR v Lai Kam-sang, CACC 578/1998). In all of these cases, the three-step approach was emphasised and the accepted range of sentence for simple possession was taken as being between twelve to eighteen months' imprisonment. It appears likely, from the limited transcript available to us, that the judge's attention was unfortunately never drawn to these previous judgments.

7. We are particularly indebted to Mr. Blanchflower, on behalf of the Respondent, for having summarised what those steps are, but they are very simple and they come to this:

8. The judge in passing sentence in the present case said only this:

9. It should be said that the Applicant, when tried on charge 1, did not contest possession of the drugs. The issue merely went to trafficking.

10. It is plain, in view of what we have already said as to the steps to be taken in cases of this kind, that the judge erred by firstly calculating the total sentence. He omitted the first step altogether and there is no indication in the Reasons for Sentence, as counsel pointed out, that the judge considered what the appropriate starting point should be before taking into account the latent risk factor. The judge appears to have immediately gone to step 2 and calculated the latent risk factor. However, as counsel also pointed out, the judge erred in his approach when doing so because, instead of considering the circumstances of the present Applicant, for example, that he was an addict, was in full employment and had kept the drugs at his home, the judge looked instead at the sentences imposed by the Court of Appeal in other cases where two years' imprisonment had been imposed for relatively small quantities of drugs. The judge found that the amount of dangerous drugs in the present case was almost double and appears, therefore, to have routinely or mathematically doubled the starting point, including the latent risk factor, in arriving at a starting point of four years. In the result, we now clearly have to consider the appropriate sentence, taking into account the steps that should have been taken by the judge in the court below.

11. As to step 1, the amount of dangerous drugs in count 1 involved a narcotic content of 34.33 grammes. Plainly, this is a large amount and we accept that this should come into a higher bracket in the range of between one year to eighteen months. Mr Leung, on behalf of the Applicant, did not precisely put his finger on what that sentence should be, but he appeared in general terms to accept that sixteen months, as suggested by Mr Blanchflower, was appropriate. We also consider this to be an appropriate starting point.

12. The second step involves the latent risk factor. It is apparent from all the circumstances that the risk was not a great one. The Applicant was a heroin addict. He had no record for any offence of drug trafficking. He was employed and, on the evidence, it appears that he kept the drugs in his premises without other people knowing that he was doing so. We consider that the latent risk factor should not have attracted an additional sentence of more than six months. In so saying, we have in mind what was said by Power VP in HKSAR v Chew Sik-pok, CACC 502/98, at p. 6:

13. In the present case, the Applicant was undoubtedly an addict and had previously been convicted on four occasions of possession of dangerous drugs. He had other convictions which are not relevant.

14. Clearly, the Applicant at all times had been prepared to plead guilty to simple possession and was entitled to the full one-third discount from the total sentence for his guilty pleas. It is apparent that the circumstances are very similar indeed to those in Chew Sik-pok (above). It goes almost without saying that if there had been a high latent risk factor in the present case, a considerable enhancement of sentence would have been justified for a quantity of heroin of these proportions.

15. In the circumstances, therefore, and adopting a starting point of sixteen months, enhanced by six months for the slight latent risk involved, we grant leave and, treating the hearing as the appeal, we reduce the sentence on charge 1 to fourteen months in order to take into account the discount for plea. This will run concurrently with the sentence of twelve months imposed by the judge on charge 2. To this extent, therefore, the appeal succeeds.