HKSAR v Choi Chun Wo
Court of Appeal
Criminal Appeal No 273 of 2017
McWalters and Zervos JJA
6 July, 30 October 2018

Criminal sentencing — dangerous drugs — trafficking — 5.26 g Ice — international element — appropriate enhancement of sentence — appropriate discount for self-consumption

Criminal sentencing — dangerous drugs — trafficking — part of drugs for self-consumption — reduction in sentence — meaning of “significant proportion” of drugs intended for own consumption — whether meant “50% or more”

D was convicted of trafficking in a dangerous drug. Customs officers intercepted D as he was entering Hong Kong at Lo Wu Control Point and found in his jeans pocket six resealable plastic bags, including one opened (the Opened Bag), containing a total of 5.26 g of methamphetamine hydrochloride (the Ice). Under caution, D claimed he had bought the Ice for his own consumption and in a subsequent video-recorded interview, added that he had already consumed 0.2 g to 0.3 g of the Ice from the Opened Bag. D tested positive for Ice. However, he declined to give or adduce evidence to support his mitigation that all the Ice was for his own consumption. The Deputy Judge only accepted that the Ice in the Opened Bag was for D’s consumption; adopted a starting point of 5½ years, reduced it by 6 months (amounting to 9.1% discount) for self-consumption and then by one third for plea to 3 years and 4 months’ imprisonment. D appealed against sentence. The six bags containing the Ice weighed 7.2 g, while the Opened Bag and the Ice inside together weighed 1.9 g.

Held, allowing the appeal by substituting a sentence of 3 years and 1 month’s imprisonment, that:

  • It was accepted that the correct starting point for 5.26 g of Ice was 5 years and 1 month’s imprisonment. An enhancement of sentence of less than 6 months’ imprisonment for the international element in trafficking of up to 250 g of drugs was “generally” not appropriate, subject to it being just and proportionate in the circumstances. Here, as only 5.26 g was brought to Hong Kong, a 3-month enhancement was appropriate and increased the starting point to 5 years and 4 months’ imprisonment (HKSAR v Abdallah [2009] 2 HKLRD 437, HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 applied; HKSAR v Chung Ping Kun [2014] 5 HKC 106, HKSAR v Zhou Sailin (CACC 72/2014, [2014] HKEC 2092) considered). (See paras.11, 19–20, 26–27.)
  • The threshold test for self-consumption was whether “all or a significant proportion” of the drugs was intended by the defendant for his own consumption. Where there was a credible claim that a “significant proportion” of the drugs was for self-consumption but the amount was not readily quantifiable, a discount of 10–25% was appropriate. Where the threshold of “significant proportion” was not met, the sentencing court had a discretion as to award a discount to reflect this fact (HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR v Liu Ming Sze [2017] 1 HKLRD 69 applied). (See paras.28–29, 37.)
  • The respondent’s submission that a “significant proportion” was 50% or more was rejected. It was for the court to determine what was a “significant proportion”, given the quantities of the drugs allegedly for self-consumption and the total quantity of drugs involved, and the credibility of the claim on a proper factual and evidential basis. Further, just because the threshold was met did not necessarily entitle a defendant to a 10–25% discount. Possession of drugs for self-consumption itself carried a prison term with possible enhancement for the latent risk factor which might offset much of the practical value of the mitigation based on self-consumption (HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 applied; HKSAR v Kong Tat Lung [2017] 6 HKC 448). (See paras.30–37.)
  • Where the drugs for trafficking and self-consumption were each quantifiable, the defendant should be sentenced for the offences separately. Here, had the narcotic content of the Opened Bag been calculated, it would have been appropriate to sentence D for trafficking in an amount less that narcotic content and for possession of the narcotic content of the Opened Bag (HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Gurung Laxman [2017] 3 HKLRD 483 considered). (See para.39.)
  • The Judge found that the contents of the Opened Bag were for D’s own consumption and this constituted about 28.5% of the total 5.26 g of Ice. This represented a “significant proportion” of the Ice for D’s own consumption. As there was no evidence of a latent risk factor, a 12% discount for self-consumption was appropriate. (See para.40.)
  • Accordingly, the starting point of 5 years and 1 month was enhanced by 3 months for the international element and reduced first, by 12% for self-consumption and, second, by one third for plea to a final sentence of 3 years and 1 month’s imprisonment. (See paras.41–42.)

Appeal against sentence

This was an appeal against sentence for trafficking in a dangerous drug imposed by Deputy Judge M Chow in the District Court (see [2017] HKEC 1969). The facts are set out in the judgment.

Jurisdictions: 

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