HKSAR v. FUNG HO WAI, SUKI

CACC 131/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 131 OF 2015

(ON APPEAL FROM HCCC NO. 200 OF 2014)

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JUDGMENT
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1.  On 14 April 2015, before Deputy High Court Judge D’Almada Remedios, the applicant pleaded guilty in the High Court to one count of trafficking in a dangerous drug, namely 19.04 grammes of a crystalline solid containing 18.69 grammes of methamphetamine hydrochloride (commonly known as “Ice”), and 0.12 grammes of a powder containing 0.09 grammes of ketamine (commonly known as “K chai”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, the applicant was sentenced to 3 years and 6 months’ imprisonment.

2.  The applicant now seeks leave to appeal against her sentence.

The facts

3.  On 7 December 2013 at 11.40 pm, the applicant was stopped when passing through the Green Channel of the Customs Arrival Hall of the border control point at Lo Wu, on her return to Hong Kong from the mainland.  Upon search, the dangerous drugs particularised in the Indictment were found inside her bra and underpants. Also found on her person was a drinking straw.

4.  Under caution upon her arrest, the applicant said that the “Ice” and “K chai” found on her were for her own consumption, while the green drinking straw was for consuming “K chai”.  She claimed she had bought all the drugs at a discotheque in Shenzhen for RMB1000.

5.  The street value of the dangerous drugs was HK$8,220.64.

6.  The prosecution accepted at trial that all of the dangerous drugs in the applicant’s possession were for her own consumption.  The applicant was trafficking, within the meaning of section 2 of the Dangerous Drugs Ordinance, by virtue of importing the drugs over the border into Hong Kong.

Reasons for Sentence

7.  For the purpose of sentencing, the judge ignored the minute quantity of ketamine in the applicant’s possession and based her sentence only on the amount of methamphetamine hydrochloride.  Having considered the sentencing guidelines set out in Attorney General v Ching Kwok-hung[1991] 2 HKLR 125, which suggested a sentence of between 7 and 10 years’ imprisonment after trial for trafficking in amounts between 10 and 70 grammes of methamphetamine hydrochloride, the judge took a starting point of 7 years’ imprisonment for 18.69 grammes of narcotic.

8.  In view of the fact that the trafficking involved importing the drugs into Hong Kong in circumstances where it was accepted that all of the drugs were for her own consumption, the judge considered the authority of Secretary for Justice v Chan Chun Fai [2011] 3 HKLRD 116.  In that case, the defendant had been charged with exporting 12.85 grammes of methamphetamine hydrochloride from Hong Kong in circumstances where it was also accepted that the drugs were for the defendant’s own consumption.  The Court in Chan Chun Fai held that the starting point should have been 7 years’ imprisonment, reduced by 25% for the fact that the drugs were all intended for the defendant’s own consumption and then discounted by the customary one-third for plea.  The resultant sentence, as in the present case, was 42 months’ imprisonment.

Grounds of Appeal

9.  Neither in her Notice of application for leave to appeal against sentence dated 17 April 2015, nor in her application before me this morning, has the applicant articulated any particular ground of appeal, save to say that the sentence was too high.

Consideration

10.  The facts of this case would appear, as the judge indicated, to be very similar to the facts in Chan Chun Fai, although she was dealing with a case of importing dangerous drugs, while the Court in Chan Chun Fai was concerned with an offence of exporting dangerous drugs.  However, I see no meaningful distinction between the two cases, even though the quantity of methamphetamine hydrochloride in the present case is in fact greater than the quantity in Chan Chun Fai and arguably might have warranted a slightly higher starting point.

11.  Accordingly, I can see no reasonably arguable ground of appeal and the application must be refused.

12.  The applicant is duly advised of her right to renew her application to the Court of Appeal and the consequences of so doing, which may include a direction for loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the conclusion that there was no justification for the renewal of the application.