HKSAR v. TAM LING YUEN

CACC 159/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 159 OF 2015

(ON APPEAL FROM HCCC NO. 548 OF 2013)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. The appellant appealed, with the leave of McWalters JA granted on 9 September 2015, against the sentence of 4 years and 10 months’ imprisonment imposed on her by Deputy High Court Judge Wilson Chan, following her plea on 6 May 2015 to one count of trafficking unlawfully in dangerous drugs on 13 July 2013, namely 18.49 grammes of methamphetamine hydrochloride (Ice), 11.87 grammes of cocaine, and 3.23 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The cocaine was found contained in 4 plastic bags, the Ice in 14 plastic bags and the ketamine in 2 plastic bags. At the conclusion of the hearing, we allowed the appeal, quashed the sentence imposed by the judge on the appellant and in its place imposed a sentence of 4 years and 6 months’ imprisonment. We said that we would give our reasons in due course. That, we do now.

2. The appellant was intercepted by police officers at 01:38 hours on 13 July 2013 while she was travelling in a taxi which was required to stop at a police roadblock outside 2-8 Dundas Street, Yau Ma Tei.  A search revealed the presence of the Ice, cocaine and ketamine, the subject of the count, in her handbag.  Having been arrested and cautioned she said that the Ice and cocaine were for her own consumption and asked to be given a chance.  She accepted that the retail value of the total quantity of dangerous drugs found in her possession was $25,000.

Reasons for sentence

3. The judge noted that the defendant was born in Hong Kong and was 22 years of age.  She worked in a nightclub and lived with her family in a public housing estate.  Having noted that she had a total of six previous criminal convictions, three of which were drug related, he said that one of those convictions was for the same offence, namely unlawfully trafficking in dangerous drugs on 28 June 2012, for which she was sentenced to 8 months’ imprisonment.  On 10 August 2011, the appellant had been made the subject of a probation order on her conviction for possession of a dangerous drug.  On 15 March 2012, for breach of a Probation order, the Probation order was discharged and she was ordered to be detained in a Drug Addiction Treatment Centre.  On 10 May 2012, on her conviction for three other offences, including possession of dangerous drugs, the appellant was ordered to be the subject of another Drug Addiction Treatment Centre order.

4. The judge said that in mitigation, the court had been informed that the appellant had been abusing dangerous drugs, to which she was addicted, since 2005.  Attached to written submissions of mitigation provided to the judge was a ‘Report of Urine Test’, provided by the medical officer of Lo Wu Correctional Institution, conducted on the appellant on 16 July 2013 at Lai King Correctional Institution. The report stated that she tested positive for “Amphetamine”.

5. The judge went on to note that it was also contended that an unspecified quantity of the dangerous drugs was for her own consumption, but that counsel, “was not able to state that precise quantity.” [1]  Further, that it had been submitted that she intended to share the majority of the dangerous drugs with friends without charge, who in turn shared their drugs with her.  It was submitted that she earned $10,000 a month working in a nightclub.  Although the judge did not advert to the concession in his reasons for sentence, counsel for the prosecution, in response to the judge’s question, conceded that “some”, but not a substantial amount of the dangerous drugs was for self-consumption.[2]

6. The judge noted [3] that it was submitted in mitigation that, “a discount should be given to recognise that part of the dangerous drugs was for the defendant’s self-use.” [4]

7. Of the contention that the appellant intended sharing the dangerous drugs with her friends on a non-commercial basis, the judge said:

“ Mr Chan realistically accepts that this kind of so-called “non-commercial” trafficking does not provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking.  This is not a case of an individual who purchases a small quantity of a dangerous drug for recreational use and gives part of it to her partner or close friends to consume at a social event [see: HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 at paragraphs 48 to 51].”

8. Having noted that the offence was committed by the appellant prior to the revised guidelines provided in the judgment of this Court in HKSAR v Tam Yi Chun [5], the judge said that the applicable tariff was that stipulated by this Court in the Attorney General v Ching Kwok Hung [6].  Having stated that he intended to adopt the ‘combined approach’ towards identifying the appropriate starting point to be taken for sentence, the judge said of the applicable methodology that it is: [7]

“ … first to calculate the applicable sentence for the most serious drug, which is the “Ice” drug in the present case, and then adjust the sentence upwards to take into account significant quantities of the other drugs.”

9. Applying and adopting that tariff and methodology, he stipulated a base starting point in respect of the Ice of 7 years and 5 months’ imprisonment, which he enhanced by four months to take into account the quantities of cocaine and ketamine.  Accordingly, he stipulated a starting point for sentence of 7 years and 9 months’ imprisonment.[8]

10. Then, he subjected that analysis to the three tests to check the validity of the results stipulated in the judgment of this Court in HKSAR v Chan Yuk Leong, namely the “absurdity test”; the “conversion test” and the “ratio test”. [9]  In applying the absurdity test, he said that it was assumed that all of the dangerous drugs were the most serious drug, namely 33.59 grammes of Ice.  That produced a starting point for sentence of “around eight years and two months”.  Application of the conversion test produced a starting point for sentence of “around seven years and eight months’ imprisonment.”  Finally, application of the ratio test produced a starting point for sentence of “around seven years and four months’ imprisonment”.[10]

11. In determining to adopt a starting point for sentence of 7 years and 9 months’ imprisonment, the judge said that he did so having taken into account: [11]

“ that trafficking in a variety of drugs should be considered an aggravating feature [see: Chan Yuk Leong (supra) at paragraphs 23 to 25].” [12]

12. Finally, the judge addressed the issue of the discount to be afforded to the appellant, having regard to the undisputed mitigation that part of the dangerous drugs was for self-consumption by the appellant: [13]

“ Given that it is not disputed she is a drug addict and in light of her criminal record, I have no difficulty in accepting this claim. That being so, the defendant is entitled to some discount [see: Wong Suet Hau (supra)].

But the Court of Appeal has emphasised in various cases that the discount should not be substantial as there is also the latent risk that the drugs intended for self-consumption may be trafficked.  In the present case, I believe it is clear that the defendant was a drug addict with an addiction problem.  I am of the view that an appropriate discount to reflect her claim in mitigation that a portion of the drugs were intended for her own consumption is 6 months.”

13. In the result, the judge discounted his initial starting point of 7 years and 9 months’ imprisonment by 6 months’ imprisonment, resulting in a final starting point for sentence of 7 years and 3 months’ imprisonment, for which he afforded the appellant a discount of one-third “for her guilty plea”.  Accordingly, he sentenced the appellant to 4 years and 10 months’ imprisonment.

Grounds of appeal against sentence

14. Mr Jeffrey Fenton, who appeared for the appellant in this Court but not in the lower court, took no issue with the starting point of 7 years and 9 months’ imprisonment adopted by the judge.  Rather, he submitted that the judge erred in affording the appellant a discount of 6 months’ imprisonment only to reflect her self-consumption of part of the dangerous drugs.  That was inadequate, amounting to a 6.45% discount only from the 7 years and 9 months’ imprisonment taken as the starting point for sentence.  He submitted that the judgment of this Court in HKSAR v Chow Chun Sang established that, [14] “…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 the appellant’s case, he suggested that the appropriate discount should have been 15% and, in any event, not less than 10%.[15]

15. In oral argument, Mr Fenton invited the Court to note that in Chow Chun Sang, in referring to self-consumption by the trafficker of the “whole or part” of the dangerous drugs, Yeung VP had not qualified in any way the word “part”. He suggested that was a departure from the judgment of this Court delivered by Stuart-Moore VP in HKSAR v Wong Suet Hau[16].  There, it was stated repeatedly that the element of self-consumption of dangerous drugs of a person guilty of unlawfully trafficking in those dangerous drugs was relevant to sentence in circumstances where the court accepted that, “a significant portion” of the dangerous drugs was for self-consumption.

The submissions of the respondent

16. For the respondent, Ms Parwani accepted that in the judgment of this Court in HKSAR v Chow Chun Sang the range of discount to be afforded to a defendant to acknowledge his self-consumption of some or all of the dangerous drugs in which he unlawfully trafficked had been stipulated to be between 10% and 25%.  However, she submitted that the discount afforded by the judge to the appellant and the sentence imposed nevertheless fell within the discretion of the judge.

A consideration of the submissions

17. In the judgment of this Court, delivered by Yeung VP, in HKSAR v Chow Chun Sang [17], the issue of the range of sentence to be afforded to a defendant, whose mitigation, that some or all of the dangerous drugs in which he unlawfully trafficked was for his own self-consumption, was accepted was addressed.  In that case, the judge accepted that more than half of the 7.22 grammes of Ice in which the appellant unlawfully trafficked was for his own consumption.  For that mitigating factor, the judge discounted the starting point taken for sentence on that charge, 5 years and 10 months’ imprisonment by 7 months, namely 10%.  In rejecting submissions on behalf of the appellant that the judge had erred in that regard and that the discount to be afforded to the appellant ought to be 15%, Yeung VP reviewed various judgments of this Court and of the Court of Appeal of England and Wales.  He pointed out that in three of those judgments in this jurisdiction, it had been accepted, either by the judge or by this Court, that all of the dangerous drugs in which the appellant trafficked unlawfully were for the consumption of the respective appellants.[18] [Italics added.]

18. In another case to which the judge referred, where the appellant claimed that two-thirds of 15.77 grammes of heroin, in which he trafficked unlawfully, was for self-consumption, this Court afforded him a discount of about 15% from the starting point.[19]

19. Yeung VP went on to say:[20]

“ 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 organized 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.”

20. In the result, whilst observing that the discount afforded by the judge was “on the conservative side”, nevertheless in dismissing the appeal Yeung VP said that the Court was satisfied that the judge had not erred in principle.

21. In HKSAR v Wong Suet Hau this Court dismissed the appeals of two appellants, who had pleaded guilty in two separate cases in the Court of First Instance, determining that there was an insufficient basis to enable a judge to say that a significant proportion of the drugs was intended to self-consumption.[21]  One appellant trafficked unlawfully in 68 grammes and the other 14 grammes of Ice.  At issue, inter alia, was whether or not, after a plea of guilty by a defendant to an offence of unlawfully trafficking in dangerous drugs, mitigation advanced on his behalf that part of the dangerous drugs was for self-consumption was to be taken into account in sentencing.  In addressing that issue, Stuart-Moore VP said, “the answer to the question…is that, where appropriate, this element should be taken into account when sentence is imposed because all sentencing must be based on a version of the facts that properly reflects the justice of the case.” [22]

22. Earlier, Stuart-Moore VP had said that in the instant appeal, “the factual situation was such that there was no readily discernible quantity, which A1 or A2, possess for the purposes of self-consumption.  However…there was…evidence which supported their assertions that some of the drugs were for personal consumption.” [23]

23. Then, he went on to address these circumstances in which such considerations would arise, namely:

“ (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.” [Italics added.]

24. Of the approach to be taken to a consideration of the evidence relevant to that issue, he said, “the normal rules for determining the factual basis for sentence apply.”  Then, he identified the relevant factors as including: [24]

“ (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.”

25. Of the judge’s resolution of the issue, he said: [25]

“ (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 …”  [Italics added.]

26. As noted earlier, it is clear that the ‘latent risk’ factor was subsumed in the range of discount of 10% to 25%, which Yeung VP said in Chow Chun Sang was the appropriate discount in the circumstances.[26]  The only reference that he made to the judgment of the Court in Wong Suet Hau was to cite with approval the observation made there that the gravity of unlawful trafficking in dangerous drugs, “…is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.” [27]  The repeated statements of this Court in Wong Suet Hau that the factor of self-consumption was relevant to mitigation of sentence in circumstances where, “it is accepted that a significant proportion of the drugs were for the defendant’s own consumption” were not even considered.

27. That is hardly surprising, given that in Chow Chun Sang itself and the authorities considered by Yeung VP it was accepted that a significant portion of the dangerous drugs in which the respective appellant’s had trafficked unlawfully was for self-consumption.  As noted earlier, in Chow Chun Sang, the judge had accepted that, “more than half of the ice involved was for the appellant’s own consumption” and this Court proceeded on the basis.[28] Furthermore, the other judgments to which Yeung VP adverted concerned cases in which it was accepted that all or two-thirds of the dangerous drugs were for self-consumption by the trafficker.  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.

28. In any event, as noted earlier, in stating that he was satisfied that part of the dangerous drugs was intended for consumption by the appellant and that, in consequence, she was entitled to some discount in sentence, the judge adverted specifically to the judgment of this Court in Wong Suet Hau.  Clearly, he is to be taken as being satisfied that a significant proportion of the drugs in which the appellant was trafficking unlawfully were intended for self-consumption.

29. By contrast, it is to be noted that the judge made no reference to Chow Chun Sang in his reasons for sentence.  It may be that came about because the judge was not afforded the assistance he was entitled to expect from counsel for the appellant.  Although counsel for the appellant referred in mitigation to, “a case called Chow Chun Sang” as calling for a discount of sentence of 10% to 25%, he did so first in the context of “social trafficking”.  Later, he contradicted that statement and said of Chow Chun Sang, that it “is only concerned with the own consumption, not for non-commercial trafficking”.  In face of the judge’s statement that he was not aware of the case and wished to be provided with a citation or a copy of the judgment, counsel said that he had no copy with him and acknowledged that the case was not cited in his list of authorities.  There is nothing in the transcript of the mitigation that suggests that counsel for the appellant complied with any of those various requests made by the judge for that assistance.

30. Clearly, the discount of 6.45% afforded to the appellant by the judge fell outside the broad range of 10% to 25% that was the appropriate discount.  There were no particular circumstances to justify that departure from the range of sentence, certainly none identified by the judge.  Accordingly, with respect to the judge, whilst acknowledging his candid, careful and thorough analysis in his reasons to sentence, he fell into error.  We were satisfied that the appellant was entitled to a discount of 12 months’ imprisonment from the starting point taken for sentence, a discount of 13%, to reflect the element of self-consumption of the dangerous drugs.

Conclusion

31. In the result, we allowed the appeal against sentence, quashed the sentence of 4 years and 10 months’ imprisonment imposed on the appellant by the judge and, in its place, imposed a sentence of 4 years and 6 months’ imprisonment.

[1] Appeal Bundle, page 11 M.

[2] Appeal Bundle, page 23 J.

[3] Appeal Bundle, page 11 S.

[4] Initially, relying on the judgment of this Court in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 at paragraph 19, counsel invited the judge to consider a discount from the starting point in the range of 10% to 25%. Finally, he asked for a discount of 6 months’ imprisonment, from a suggested starting point for sentence of 7 years’ imprisonment, to reflect that mitigating factor, before the application of a one-third discount.

[5] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[6] Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125.

[7] Appeal Bundle, page 12 K-L.

[8] Appeal Bundle, page 12 M-P.

[9] HKSAR v Chan Yuk Leong (CACC 318/2013; unreported, 8 April 2014).

[10] Appeal Bundle, pages 12 S-13 C.

[11] Appeal Bundle, page 13 D-E.

[12] HKSAR v Chan Yuk Leong.     

[13] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

[14] HKSAR v Chow Chun Sang; page 1126, paragraph 19.

[15] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121; HKSAR v Law Num Chun [2014] 5 HKLRD 500; and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

[16] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

[17] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

[18] Secretary for Justice v Chan Chun Fai 3 HKLRD 116; 12.85 grammes of ice-discount of 25%; R v Chung Kam Fai [1993] 1 HKCLR 178; 306.67 grammes of heroin-discount of 12%; HKSAR v Chow Kam Lung [2010] 4 HKLRD 253; 22.15 grammes of ketamine-discount of about 25%.

[19]  HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

[20]  HKSAR v Chow Chun Sang; page 1126, paragraphs 19-20.

[21] HKSAR v Wong Suet Hau, page 85 G-J, paragraphs 54-5.

[22] HKSAR v Wong Suet Hau, page 78 F-H, paragraph 33.

[23] HKSAR v Wong Suet Hau, page 78 D-E, paragraph 31.

[24] HKSAR v Wong Suet Hau, page 79 D-G, paragraph 34(3).

[25] HKSAR v Wong Suet Hau; page 79 H-J, paragraph 34(4).

[26] HKSAR v Chow Chun Sang; page1126, paragraph 20.

[27] HKSAR v Chow Chun Sang; page 1126, paragraph 21.

[28] HKSAR v Chow Chun Sang; page 1124, paragraphs 7 and 8.