HKSAR v. LEE CHI CHING

CACC 205/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 205 OF 2016

(ON APPEAL FROM DCCC NO 890 OF 2015)

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J U D G M E N T

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1.  The applicant faced the following charges: Wilfully obstructing police officers in the due execution of their duties, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212 (Charge 1); Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2); and Possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap 228 (Charge 3).

2.  She pleaded guilty in the District Court before HH Judge C P Pang (“the judge”) and, on 30 June 2016, was sentenced to a total of 3 years and 10 months’ imprisonment.  On 13 July 2016, the applicant filed a Notice of application for leave to appeal against her sentence (Form XI).

The facts

3.  At about 12:05 am on 6 April 2015, two police officers were outside Room 1601, Ching Yuet House, Tin Ching Estate, Tin Shui Wai, New Territories (“the Premises”) when they saw the applicant walk towards the Premises and take out some keys in order to open its metal gate.  The police officers immediately approached the applicant and revealed their identities.  The applicant fled to the lobby on the same floor where she threw the keys out of a window before being restrained.

4.  At about 12:46 am on the same day, police officers successfully retrieved the keys from the podium of the above building, with which they gained entry into the Premises where they conducted a search. Inside the Premises, on top of a blue plastic box, they found:

(a) a purple metal box containing 2 re-sealable plastic bags each containing suspected methamphetamine hydrochloride (commonly known as "Ice"), later confirmed to be a total of 6.99 grammes of a crystalline solid containing 6.90 grammes of "Ice", the subject matter of Charge 2;

(b) An extendable baton[1], the subject matter of Charge 3;

(c) 205 empty re-sealable plastic bags;

(d) 2 electronic scales;

(e) HK$300 in cash; and

(f) A town gas bill and an electricity bill, both in the name of the applicant.

5.  Upon arrest and caution, the applicant said that she possessed the dangerous drugs in Charge 2 for her own consumption, and the extendable baton in Charge 3 for self-defence.

6.  The estimated street value of the dangerous drugs in question was HK$2,984.73.

7.  The registered tenant of the Premises said he had no knowledge of the existence of dangerous drugs in the Premises, of which the applicant was the sole occupier.

Whether the “Ice” was for the applicant’s own consumption

8.  As noted earlier, the applicant claimed that the “Ice” was for her own consumption. This allegation was repeated in mitigation but was not accepted by the prosecution.  Accordingly, the judge conducted a Newton hearing on the issue.

9.  At the Newton hearing, the applicant herself testified but called no other witness.  She said that she had started taking “Ice” in 2012.  At the time of the offences, she was taking “Ice” five times per week, at a rate of about 0.5 to 0.6 grammes each time.  She said she had purchased the “Ice” in question from a person called “Ah Kin” in an amusement games centre for HK$1,500 about one to two days before her arrest.  She also possessed a pipe, which she used for the taking of “Ice”.  Nevertheless, the applicant alleged that it had been thrown into a plastic bucket by police officers after her arrest and never seized as evidence.  In relation to this matter, she said that apart from making an enquiry with PC 9338 as to the whereabouts of the pipe, she had not made any complaint to anyone about its non-production.

10.  The prosecution called PC 9338 and the exhibits officer PC 9407 to give evidence in rebuttal.  Suffice it to say, the police denied the applicant’s allegation.

11.  In his ruling, the judge disbelieved the applicant’s evidence, which he said defied logic and common sense.  In particular, he accepted that, while there were electronic scales and 205 re-sealable plastic bags found at the applicant’s home, no equipment for consuming “Ice” had been found.

Mitigation

12.  The applicant was 25 years of age at the time of sentence and a part-time manicurist.  She was married but had been separated from her husband since 2015.  She had a 5 year-old daughter, for whose care she was responsible.

13.  It was submitted by counsel on her behalf that “a significant part” of the dangerous drugs in question were for her own consumption.  Further, since the three charges were bound up with the applicant’s drug trafficking activity, it was argued that the sentences in respect of all charges should run concurrently with each other.

Reasons for sentence

14.  In respect of Charge 1, the judge noted that it was a minor obstruction against police officers acting in the execution of their duties and therefore considered a starting point of 6 weeks’ imprisonment appropriate.

15.  Regarding Charge 2, by reference to the sentencing guidelines set out in AG v Ching Kwok Hung [1991] 2 HKLR 125 as revised in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256, the judge adopted a starting point of 66 months’ imprisonment.

16.  As for Charge 3, the judge considered a starting point of 6 months’ imprisonment appropriate.

17.  Giving the applicant a full one‑third discount for her pleas of guilty in respect of Charges 1 and 3, the judge passed a sentence of 4 weeks’ imprisonment on Charge 1 and 4 months’ imprisonment on Charge 3.  Having rejected the applicant’s evidence in the Newton hearing concerning her claim of self-consumption of the dangerous drugs, the judge gave her a reduced discount of 20 months in respect of Charge 2, resulting in a sentence of 46 months’ (or 3 years and 10 months’) imprisonment on Charge 2.

18.  The judge then ordered all three sentences to run concurrently with each other, making an overall sentence of 3 years and 10 months’ imprisonment.

Grounds of appeal

19.  In submissions attached to her Form XI, the applicant stated that she was applying for leave to appeal against the sentence on Charge 2 only.  She did not, however, articulate any grounds of appeal.  Before me this morning, the application applied for an adjournment of this hearing, which I refused.  Although she said her family members were looking for a lawyer, after legal aid had been refused on 12 September 2016, no steps had been taken to instruct any lawyers in the course of the past 3½ months, nor were any of her family members in court, notwithstanding that they were aware of this hearing this morning.

20.  In oral submissions before me, the applicant has repeated that her sentence was excessive given that the dangerous drugs were for her own use.  She is also concerned about her young daughter who is being looked after by her mother.  Although her complaint is in relation to the sentence on Charge 2, I shall nevertheless examine the sentences on all charges, given the terms of section 83I(2) of the Criminal Procedure Ordinance, Cap 221.

The respondent’s submissions

21.  Mr Nicholas Wong, on behalf of the respondent, submitted that the sentence passed by the judge in respect of each offence was appropriate.  Mr Wong also argued that, although the judge rejected the applicant’s evidence at the Newton hearing, he afforded her considerable leniency by reducing the discount she was otherwise entitled to for pleading guilty by only 3% to 30.3%, when she might have only received a 25% reduction from the starting point.

Consideration

22.  The quantity of “Ice” narcotic for sentencing purposes was 6.9 grammes.  Given that the applicable range following a trial for up to 10 grammes of “Ice” was between 3 and 7 years’ imprisonment, I can see no reasonably arguable ground of appeal that the judge’s adoption of a starting point of 66 months’ (or 5½ years’) imprisonment was either manifestly excessive or wrong in principle.

23.  As for the judge’s rejection of the applicant’s evidence that part of the dangerous drugs concerned were for her own consumption, I see no basis for challenging this finding of fact, the judge having seen and heard the relevant witnesses and evidence.

24.  Of more significance, as the judge noted, was the presence in the flat of two sets of electronic scales and no less than 205 re-sealable plastic bags.  Yet no equipment for consuming “Ice” was found anywhere in the premises.  Apart from her assertion, which the judge did not accept, there was no evidence of her addiction to “Ice”.  It is true that the applicant had a previous conviction for possession of dangerous drugs, but she also had a previous conviction for trafficking.  In any event, both convictions were entered about 7 years before the commission of the present offences and, according to the applicant, involved Ketamine, not “Ice”.

25.  I do not see a reasonably arguable ground of appeal that the dangerous drugs in question may have been in whole or in significant part for the applicant’s own consumption.  Having rejected the applicant’s evidence in this respect, and the applicant having thereby failed to persuade the judge on this matter at a Newton hearing, I cannot see any valid complaint about the reduction of the applicant’s discount for plea. Indeed, I agree with Mr Wong that the reduction in discount for plea, after the applicant had failed to persuade the judge at a Newton hearing, could have been greater.

26.  As for the sentences for the other two offences, neither of them is in itself objectionable.  In any event, both sentences were ordered to run concurrently with the sentence for the principal offence of trafficking, bearing in mind the totality of sentence imposed.

27.  In all the circumstances, I can see no reasonably arguable grounds for appeal against sentence.  The application must be refused.  The applicant is advised that she has the right to renew her application to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.