[2018] 1 HKLRD 1022
HKSAR
and
Wan Wai Lun
( )
————
[2018] HKCA 30
(Court of Appeal)
(Criminal Appeal No 90 of 2017)
————
Macrae and Pang JJA
16 January 2018
Criminal sentencing — dangerous drugs — trafficking — 22.72 g heroin
— previous convictions for simple possession — whether enhancement of
sentence appropriate
Criminal sentencing — aggravating factors — previous convictions — when,
and when not, appropriate to enhance sentence
— — — 22.72 — —
— — —
In March 2017, D pleaded guilty in the District Court to trafficking
in dangerous drugs, namely 22.72 g of heroin hydrochloride narcotic
in September 2016. He had two previous convictions, one in 2003
and the other in 2009, for simple possession of dangerous drugs.
Adopting a starting point of 80 months and giving a one-third
discount for his guilty plea, the Judge sentenced D to 53 months’
imprisonment. D appealed against his sentence.
Held, allowing the appeal to reduce the sentence to 48 months’
imprisonment, that:
(1) The parties were agreed that a strict application of guidelines
to quantity would have produced a starting point of just under
72 months. Yet the Judge did not, as he should have done,
explain why he had adopted a significantly higher starting
point. He did not say that he found any aggravating features
justifying the increase. (See para.17.)
(2) That absence of explanation would not necessarily be
determinative if there were in fact such features. A sentence
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[2018] 1 HKLRD 1022 HKSAR v Wan Wai Lun 1023
might be enhanced for previous convictions of the same or a
similar kind. But there were difficulties in treating previous
convictions for simple possession of dangerous drugs as
aggravating a sentence for trafficking in dangerous drugs
(HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 explained;
HKSAR v Smit Hector Edward [2017] 1 HKLRD 287
considered). (See paras.18–19, 21–22.)
(3) Whilst it was to be doubted that in the normal course previous
convictions for simple possession could aggravate a sentence
for trafficking, it was unnecessary to express a concluded view
on the matter. This was because not only did the Judge not
appear to consider that there were any aggravating features
in the case, but D’s two previous simple possession convictions
in 2003 and 2009, for which he was sent to a Drug Addiction
Treatment Centre, did not justify an enhancement of his
sentence for trafficking. (See para.24.)
(4) There was no reason to depart from a starting point arrived
at arithmetically. That starting point should have been 72
months’ imprisonment. Applying the one-third discount
adopted by the Judge, the sentence should be 48 months’ (or
4 years’) imprisonment (R v Lau Tak Ming [1990] 2 HKLR
370 applied). (See para.25.)
Appeal against sentence
This was an appeal against sentence for trafficking in a dangerous
drug imposed by Judge Sham Siu Man in the District Court on 21
March 2017. The facts are set out in the judgment.
[Editor's note: This is another case shedding light on the matter of
when it would, and when it would not, be appropriate to enhance
a sentence for previous convictions.]
Ms Priscilia TY Lam, instructed by the Director of Legal Aid, for
the appellant.
Mr Eddie Sean, Senior Assistant Director of Public Prosecutions,
for the respondent.
Legislation mentioned in the judgment
Dangerous Drugs Ordinance (Cap.134) s.4(1)(a), (3)
Cases cited in the judgment
HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, [1999] 3 HKC 848
HKSAR v Lau Tsz Ho [2015] 1 HKC 491
HKSAR v Smit Hector Edward [2017] 1 HKLRD 287
R v Lau Tak Ming [1990] 2 HKLR 370, [1991] 2 LRC (Crim) 313
R v Tam (Simon) (HCMA 489/1996, [1996] HKLY 608)
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1024 HONG KONG LAW REPORTS & DIGEST [2018] 1 HKLRD 1022
JUDGMENT
Macrae JA (giving the judgment of the Court)
1. The appellant appeals with leave of the Single Judge1 against
a sentence of 53 months’ imprisonment passed by HH Judge Sham
(the Judge) in the District Court on 21 March 2017, following his
plea of guilty to a single charge of trafficking in a dangerous drug,
namely 22.72 grammes of heroin hydrochloride narcotic, contrary
to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap.134).
The facts
2. On 12 September 2016, at about 3:25 pm, police officers
patrolling in Sham Shui Po, Kowloon noticed the appellant riding
a bicycle and acting furtively. They intercepted him at what was
termed a “sitting-out area” in Nam Cheong Street, near Fuk Wing
Street in Sham Shui Po and, upon a body search, found inside his
underwear two transparent re-sealable plastic bags containing a
number of green packets of suspected dangerous drugs; and two
transparent re-sealable plastic bags containing a number of blue
packets of suspected dangerous drugs. A mobile telephone and
HK$1,123 in cash were also found on the appellant.
3. Upon arrest and caution, the appellant said he was only
working and asked for a chance. In a subsequent video-recorded
interview, the appellant said, inter alia, that he had no home of his
own and had been unemployed for half a year; a man called “Ah
Wing” had asked him to deliver dangerous drugs for a reward of
HK$800 per day and would contact him to make payment after 7
days; he had only been working for 3 days before he was arrested;
he was to meet another man named “Ah Man” every day at 3 pm
in Shek Kip Mei MTR station to collect “white powder” and then
drop the drugs off at the Nam Cheong Street “sitting-out area”; he
knew that what was found on him was “white powder”, but he did
not know why it was packaged in different coloured wrapping; and
both the cash found on him and the mobile telephone were unrelated
to drug trafficking.
4. A Government Chemist later found that there were a total
of 112 small packets found on the appellant, which upon
examination were found to contain 29.80 grammes of a mixture
containing 22.72 grammes of heroin hydrochloride. The market
value of the dangerous drugs seized was about HK$23,780.
1
Macrae JA on 1 September 2017.
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HKSAR v Wan Wai Lun
[2018] 1 HKLRD 1022 Macrae JA 1025
Mitigation
5. In mitigation, counsel then acting for the appellant submitted
that he was 39 years old and did not have a fixed place of abode,
although he was permitted to return to live with his family in Yuen
Long, where he occasionally went to spend the night. He had not
worked since the year 2000 and relied on Comprehensive Social
Security Assistance. He had a daughter from a previous marriage in
the Mainland, who was then nearly 16 years of age. It was submitted
that the appellant’s family was willing to give him moral support,
and a number of mitigation letters from them were submitted at
the hearing.
6. Upon enquiry by the Judge as to the relevant sentencing
guidelines for the quantity in question, defence counsel confirmed
that for amounts of heroin narcotic between 10 and 50 grammes,
the sentencing range was between 5 and 8 years’ imprisonment after
trial.
Reasons for sentence
7. In his reasons for sentence, the Judge noted that the appellant
had 10 previous convictions spread over 7 court appearances during
the past 14 years, two of which were for possession of dangerous
drugs, in respect of which he had been sent to a Drug Addiction
Treatment Centre. However, he accepted that this was the
appellant’s first offence of trafficking in dangerous drugs.
8. The Judge did not appear to find any aggravating features.
Indeed, he said he saw “no reason to depart from the guidelines as
set down by the higher court”. For the quantity of dangerous drugs
concerned, he adopted a starting point of 80 months’ (or 6 years
and 8 months’) imprisonment. Giving the appellant a one-third
discount for his plea of guilty, he reduced the sentence to 53 months’
imprisonment.
Grounds of appeal
9. Ms Priscilia Lam, on behalf of the appellant at this appeal,
argues the single ground of appeal that the Judge was wrong to take
a starting point of 80 months’ imprisonment, when the appropriate
sentence after trial for the quantity concerned, on an arithmetical
basis under the guidelines in R v Lau Tak Ming,2absent any
aggravating features, should have been no more than 72 months’
imprisonment.3
10. She relies on the decision in HKSAR v Smit Hector
Edward,4 where this Court said, at [26]:
2
[1990] 2 HKLR 370.
3
Strictly 71.4 months’ imprisonment.
4
[2017] 1 HKLRD 287.
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1026 HONG KONG LAW REPORTS & DIGEST [2018] 1 HKLRD 1022
…A departure from a strict arithmetical starting point is not, by
itself, objectionable, but where it is significant it should be
explained.
Here, the increase in the starting point was about 8 months higher
than it should have been on an arithmetical basis, which was clearly
a significant increase, and a proportionally more significant increase
than that under consideration in Smit Hector Edward. Yet, no reason
was given for the enhancement, in circumstances where the Judge
did not purport to rely on any aggravating features.
11. In respect of the respondent’s argument that the appellant
had two prior convictions for simple possession of dangerous drugs,
Ms Lam pointed out that they were in 2003 and 2009 and were of
a different quality from an offence of trafficking in dangerous drugs.
Not only were such convictions for simple possession not capable
of enhancing a sentence for drug trafficking, but they did not justify
an increase of the starting point by 8 months from what an
arithmetical application of guideline to quantity would have
produced.
The respondent’s submissions
12. Mr Eddie Sean, on behalf of the respondent, submitted that
the Judge was entitled to adopt a higher starting point if there were
convictions “of the same or a similar kind” of offence. A “similar
kind” of offence to trafficking in dangerous drugs would include
previous convictions for simple possession of dangerous drugs.
13. For this proposition, he relied on HKSAR v Chan Pui Chi,5
where, in a case involving offences of trafficking in dangerous drugs
by an applicant with 22 previous convictions, at least two of which
were for trafficking in dangerous drugs while others were for
“drug-related offences”, Stuart-Moore V-P said:6
We should add that there is nothing original about the notion that
a defendant, with previous convictions of the same or a similar
kind as the offence for which he is due to be sentenced, may receive
a longer sentence than a defendant with none.
14. Mr Sean also referred to the case of R v Tam Simon,7 a
Magistracy Appeal, where Patrick Chan J (as he was then) said:8
There are clear authorities to the effect that in a case where a person
had a history of multiple offences of a similar nature in the past,
the court is entitled to take a higher starting point.
5
[1999] 2 HKLRD 830.
6
Ibid at 833E.
7
(HCMA 489/1996, [1996] HKLY 608, 12 August 1996).
8
Ibid at p.5, [2].
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HKSAR v Wan Wai Lun
[2018] 1 HKLRD 1022 Macrae JA 1027
Tam Simon was not, however, a case involving dangerous drugs.
15. The respondent further relied upon the decision of the
Court of Appeal in HKSAR v Lau Tsz Ho,9 where the Court said:10
Given the applicant has 8 previous convictions, 2 of them for the
same offence and 5 of them for possession of dangerous drugs, it
is clear that some enhancement of the starting point is warranted.
In that case, Mr Sean contended that the Court had appeared to
regard possession and trafficking as similar conduct for the purpose
of considering an enhancement of sentence for trafficking. However,
he accepted that any enhancement for this reason must still be
reasonable and conform with other sentencing principles, for
example, totality.
16. He acknowledged that, from a reading of his reasons for
sentence, the Judge in the present appeal did not appear to regard
the two previous convictions for possession of dangerous drugs as
an aggravating factor in respect of the offence of trafficking.
Nevertheless, it was a matter for this Court as to whether the
sentence was manifestly excessive and/or wrong in principle in the
light of those convictions which, he submitted, were capable of
enhancing the starting point for trafficking. He invited this Court
to consider issuing guidelines on this matter.
Discussion
17. The parties are agreed that a strict application of guidelines
to quantity would have produced a starting point of just under 72
months’ imprisonment. Yet the Judge adopted a starting point of
80 months’ imprisonment without explaining why he had adopted
a much higher starting point. In our view, that is a significant
increase of what would have been a strict arithmetical application
of the relevant guidelines to the quantity concerned: indeed, it
represents an 11.97% increase. As this Court said in Smit Hector
Edward, a departure from a strict arithmetical starting point, whilst
not by itself objectionable, should be explained where it is
significant. Here it was significant, yet the Judge did not say that
he found any aggravating features to justify such a departure.
18. That, of course, would not necessarily be determinative, if
there was in fact an aggravating feature (or features) justifying the
increase. Whilst we do not doubt the general principle that a
sentence may be enhanced for previous convictions of the same or
a similar kind, the principle is best exemplified where offences of
dishonesty, sexual offences or offences of violence are concerned.
Thus, it might be relevant when sentencing a man charged with
9
[2015] 1 HKC 491.
10
Ibid at [19].
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1028 HONG KONG LAW REPORTS & DIGEST [2018] 1 HKLRD 1022
fraud that he has previous convictions for theft, handling stolen
goods or obtaining property by deception; or where a man charged
with rape has previous convictions for indecent assault; or where a
man charged with inflicting grievous bodily harm has previous
convictions for wounding, assault occasioning actual bodily harm
or common assault. We use these examples merely to illustrate the
point, not to suggest that this is an exhaustive list of offences which
might properly be thought to be of a similar kind to the one with
which a defendant is charged.
19. It seems to us, however, that there are difficulties in treating
previous convictions for simple possession of dangerous drugs as
aggravating a sentence for trafficking. Whilst we accept that many
defendants sell drugs to feed their own addictions, and the possession
of some quantities pose a significant latent risk of being shared with,
or falling into the hands of, others, the legislature and the courts
have nevertheless recognised that the offences of simple possession
and trafficking are qualitatively very different offences calling for
very different levels of punishment and/or types of sentence. For
both of the appellant’s two previous convictions for simple
possession, for example, he was sentenced to a Drug Addiction
Treatment Centre, not a term of imprisonment.
20. We also recognise that it could be argued that the defendant
who has been cured of his drug addiction but who then turns to
trafficking in dangerous drugs, well knowing the perniciousness and
misery that drugs bring to the lives of those afflicted by them is a
cynical example of an offender for whom the courts should have
no hesitation in passing a severe and enhanced deterrent sentence.
On the other hand, one does not necessarily need to be a former
drug addict to know of the perniciousness and misery associated
with the taking of dangerous drugs: everyone in the community is
well aware of this acute societal problem.
21. With respect to the argument of Mr Sean, we do not think
that the Court in Chan Pui Chi was meaning to say that previous
convictions for possession of dangerous drugs were an aggravating
feature in respect of an offence of trafficking. We note that what
the Court actually said was:11
The applicant had 22 previous convictions and had previously, in
1988 and 1992, been sentenced respectively to five years’ and 6½
years’ imprisonment for trafficking in dangerous drugs. His criminal
record showed several other drug-related offences including others
for trafficking. (Emphasis supplied.)
A little later, the Court went on:12
11
HKSAR v Chan Pui Chi at 833A–B.
12
Ibid at 833C–E.
1022 2018/4/4—17:36
HKSAR v Wan Wai Lun
[2018] 1 HKLRD 1022 Macrae JA 1029
Whilst it is always important for the sentencer to bear in mind the
general principle that a defendant is being sentenced for the offence
which has brought him before the court and not for previous
offences for which he has already served the penalty, the constant
repetition of this applicant’s trafficking in dangerous drugs had itself increased
the gravity of these offences, at least so far as sentence is concerned.
The sentences he had received in the past had proved to be no
deterrent at all, and prevention of further repetition was
demonstrably in the public interest. (Emphasis supplied.)
22. Thus, apart from the two relatively recent convictions for
trafficking in 1988 and 1992 specifically cited by the Court, there
were in fact yet other offences of trafficking on his criminal record.
It seems to us that the Court was focusing in these passages on the
previous trafficking convictions when considering the question of
enhancement.
23. Further, we do not read the Court in Lau Tsz Ho as saying
that an enhancement was warranted for the previous convictions of
simple possession: it may have been simply making the point that
the applicant in that case had numerous previous convictions, two
of which in particular were for trafficking for which some
enhancement was thereby warranted.
24. In any event, whilst we doubt that in the normal course
previous convictions for simple possession can aggravate a sentence
for trafficking, it is not strictly necessary for us to express a
concluded view on the matter. That is because not only did the
Judge in the present case not appear to consider that there were
any aggravating features in the case before him, but the appellant’s
two previous convictions in 2003 and 2009, for which the appellant
was sent to a Drug Addiction Treatment Centre, did not in our
view justify an enhancement of his sentence for trafficking.
25. In our judgment, there was no reason to depart from the
starting point arrived at arithmetically under the Lau Tak Ming
guidelines when applied to the quantity of heroin narcotic concerned.
The starting point should have been 72 months’ imprisonment.
From the starting point he adopted, the Judge accorded the appellant
a one-third discount for his plea. Applying the same discount to the
starting point we think was appropriate, the appellant’s sentence
becomes 48 months’ (or 4 years’) imprisonment.
26. In the circumstances, we allow the appeal, quash the
sentence of 53 months’ imprisonment, and pass in substitution a
sentence of 48 months’ (or 4 years’) imprisonment.
Reported by Kemal Bokhary
1022 2018/4/4—17:36
