HKSAR v. ZHANG JING

CACC 37/2018

[2018] HKCA 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 37 OF 2018

(ON APPEAL FROM HCCC NO 424 OF 2016)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against the sentence of 6 years’ imprisonment, imposed on her by Yau J on 4 January 2018, following her conviction on her own plea to trafficking in dangerous drugs, namely 22.52 grammes of a crystalline solid containing 22.20 grammes of methamphetamine hydrochloride, 5.18 grammes of a solid containing 4.80 grammes of cocaine and 6.03 grammes of a powder containing 2.99 grammes of ketamine.

2.  The brief facts giving rise to the offence were that on 24 May 2016, police officers as part of an anti-narcotics operation entered the flat rented by the applicant and found the drugs in question as well as items and equipment for the packaging and distribution of them.  The police officers had followed into the flat a male who was a friend of the applicant.  The applicant admitted to purchasing the drugs for her own consumption and for treating others.  She also stated that her male friend had no knowledge of the drugs.  The estimated street value of the drugs seized was $13,087.  When the applicant was taken into custody in relation to this offence she tested positive to amphetamine.

3.  In the appeal papers filed by the applicant she complains that the judge only discounted her sentence for her guilty plea by 20% when she should have received a discount of 25%.

4.  The applicant appears in person, having had legal aid refused, and applies for an adjournment to commission the services of a private lawyer.  She had been previously informed that if her adjournment application was refused she should be ready to proceed with the leave application.  By notice dated 17 July 2018, the applicant was informed that legal aid had been refused.  This was followed by a letter dated 7 August 2018 from the court, setting out directions in respect of her application for leave to appeal and informing her of what steps she should take if she was to retain a private lawyer to represent her or proceed with the application on her own.  By notice dated 13 September 2018, the applicant was informed that her leave application would be heard today.  On 7 October 2018, the applicant wrote a letter to the court stating that she had a problem engaging a lawyer and hoped to adjourn the hearing.  The applicant was directed to make any application for an adjournment at the hearing but she was also informed that should the application be refused she should be ready to proceed with the leave application.  After hearing from the applicant, I refused her application for an adjournment, because it was apparent that she made no effort to retain a private lawyer or arrange other forms of legal representation since she was informed that legal aid had been refused.

5.  In mitigation, counsel for the applicant, set out her background and circumstances, noting that she abused drugs because of her unhappy marriage.  She urged the judge to adopt a starting point of over 8 years’ imprisonment for the batch of drugs she was trafficking and that she should receive a discount to her sentence for the fact that some of the drugs were for her own consumption. 

6.  The judge in sentencing the applicant carefully considered the fact that he was dealing with a batch of drugs.  He used as the base for sentencing the sentencing guidelines for Ice and factored in the relatively small amounts of cocaine and ketamine.  He arrived at a final starting point, using the conversion method, of 7 years and 10 months’ imprisonment. It should be noted that had he adopted a starting point for the quantity of Ice narcotic alone, it would have been 7 years and 9 months’ imprisonment.  So he only enhanced the sentence by 1 month for the quantities of other drugs which were relatively small.  He then went on to deal with the applicant’s claim that some of the drugs were for her own consumption.  Upon a consideration of the relevant authorities, he decided that in the circumstances of the case there was no justification to discount the sentence for this factor.  He finally addressed the issue of the level of discount for the applicant’s guilty plea.

7.  The judge applied the revised practice in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 for discounts to a defendant’s sentence for a plea of guilty.  He noted that the applicant’s case was set down in the running list of the High Court for March 2017, but on the day of the pre-trial review in February 2017, the applicant indicated her desire to engage a private lawyer and discharge legal aid.  The case was then put back on the fixture list and a trial date was fixed.  Eventually, the applicant indicated that she would plead guilty before the pre-trial review fixed for 6 November 2017.  The judge took the view that under such circumstances the discount to the applicant’s sentence for her guilty plea should be 20%.  He then sentenced the applicant to 6 years’ imprisonment.  As is apparent, the judge adopted a starting point of 7 years and 10 months’ imprisonment which when reduced by 20% should result in a sentence of 6 years and 3 months’ imprisonment.

8.  Mr Prakash Daryanani, counsel for the respondent, submitted in his written and oral submissions that because the offence occurred on 24 May 2016 the judge wrongly applied Ngo Van Nam which was handed down on 2 September 2016.  He referred to HKSAR v Tsoi Shu & Ors [2005] 1 HKC 51, at paragraph 39, where it was said by the Court of Appeal that an offender is to be sentenced upon the existing or prevailing guideline or tariff of the sentence which existed at the time of the commission of the offence, referring to article 12(1) of the Hong Kong Bill of Rights, Cap 383 and R v Chan Ka Wai, CACC 530/1988, unreported.  He submitted therefore that the old practice applied which would have entitled the applicant to a full one third discount on a plea of guilty.

9.  The entitlement to a one third discount for a guilty plea under the old practice was reviewed by Lunn VP (as he then was) in Ngo Van Nam, who went on to set out the revised practice and in doing so said at paragraph 236:

“The revised practice of affording discounts of sentence for pleas of guilty is to be applied only to those who, in future, reach the stages in criminal proceedings identified in this judgment at which revised discounts of sentence for pleas of guilty are identified. So, for example, the revised practice applies to a defendant currently in the magistracy who, in the future, is committed to the Court of First Instance for trial. On the other hand, for example, a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one-third from that taken as a starting point for sentence.”

10.  It was noted by Lunn VP at paragraph 237 that a draft of the judgment had been circulated to all other members of the Court of Appeal who indicated their support for the revised practice set out in paragraphs 193 to 236.

11.  Mr Daryanani informed the Court that the applicant committed the offence on 24 May 2016 and was brought before the Magistrate’s Court the next day.  On 7 October 2016, she was committed for trial to the Court of First Instance, having indicated a plea of not guilty to the offence of trafficking in dangerous drugs.  The applicant was therefore in the magistracy at the time the decision of Ngo Van Nam was handed down.  Mr Daryanani, on a consideration of paragraph 236 of Ngo Van Nam, withdrew his submission.

12.  The applicant’s sole complaint is that she should have received a discount of 25% for her late plea of guilty instead of the 20% that was imposed by the judge.  There is no basis for her complaint as the judge had followed the sentencing guidelines for the discount afforded to a defendant upon a plea of guilty at the stage when it was entered.  It was within the judge’s overriding discretion to give the applicant a discount of 20% in accordance with Ngo Van Nam, as set out at paragraphs 212 and 213.  In any event, he imposed a sentence of 6 years’ imprisonment when it could have been 6 years and 3 months’ imprisonment, as has already been indicated.  The application for leave to appeal against sentence is therefore refused.

13.  The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.