HKSAR v. YAN MEI YEE

CACC 403/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 403 OF 2015

(ON APPEAL FROM HCCC NO. 364 OF 2015)

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J U D G M E N T

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1. The applicant pleaded guilty to one count of unlawfully trafficking in dangerous drugs, namely 14.59 grammes of a crystalline solid containing 14.18 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 9.76 grammes of a mixture containing 6.64 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the High Court for sentence on 23 November 2015 where she was sentenced by Deputy Judge McMahon to 5 years’ imprisonment.

2. On 30 November 2015, the applicant filed a Notice of application for leave to appeal (“Form XI”) against her sentence, although she did not identify any specific grounds of appeal.

The facts

3. On 2 March 2015, a team of police officers were carrying out an anti-narcotic operation in Sham Shui Po, when they saw the applicant opening the main door of a building at No 11, Shek Kip Mei Street (“the Building”).  She was intercepted, whereupon she told the officers that she lived at Room C, 4/F of the Building.  The shoulder bag she was carrying was searched and a wallet found, which in turn contained: a transparent plastic bag containing 0.19 gramme of a crystalline solid containing 0.18 gramme of “Ice”; two transparent plastic bags containing a total of 14.4 grammes of a crystalline solid containing 14 grammes of “Ice”; a transparent plastic bag containing 15 pellets each wrapped in a coloured plastic sheet with 6.24 grammes of a mixture containing 4.26 grammes of heroin hydrochloride; and a transparent plastic bag containing 3.52 grammes of a mixture containing 2.38 grammes of heroin hydrochloride.

4. Under caution, the applicant claimed that the drugs were for her own consumption. Two mobile telephones and cash of HK$9,290.70 were also seized from her.

5. After a house search of Room C, 4/F of the Building, two electronic scales, a box containing 22 empty re-sealable plastic bags and some coloured plastic sheets were found.  The coloured plastic sheets were identical to those used to wrap the pellets of heroin found in the applicant’s wallet.  The applicant had been a tenant of the flat since April 2014 paying a monthly rental of $4,700.

6. In a subsequent video-recorded interview, the applicant claimed that she purchased the “Ice” and heroin for HK$7,000 from a friend, but refused to answer whether the scales, plastic bags and coloured plastic sheets belonged to her.  However, she was the sole occupant of the premises, and she worked as a cleaner earning HK$8,500 a month.

7. The estimated street value of the “Ice” was around HK$5,700, and that of the heroin was around HK$7,000.

8. On pleading guilty, the applicant admitted and accepted that all of the items found in the flat belonged to her.

Mitigation

9. In mitigation, it was submitted that the applicant was a drug addict, and had admitted to possession after arrest.  It was also suggested that the total value of the drugs was low in this case.  A starting point of 7 years was suggested for the “Ice”[1], and 4 years for the heroin[2].

Reasons for Sentence

10. In sentencing, the judge indicated that he would use a ‘combined approach’ with regard to the two types of dangerous drugs involved.  A starting point of 7 years’ imprisonment was adopted in respect of the “Ice”.  This was increased by 6 months to reflect the quantity of heroin involved in the case, and the fact that the applicant was trafficking in two different types of dangerous drugs.  After allowing a full one-third discount for her guilty plea, the judge imposed an overall sentence of 5 years’ imprisonment.

Grounds of appeal against sentence

11. Although the applicant has not put forward any written grounds of appeal, she has before me this morning said that, following her arrest, she told the police that the drugs were for her own consumption, an assertion which was recited in the Summary of Facts.  Yet, she was given no consideration for the fact that some of the drugs were for her own use.

The respondent’s submissions

12. Mr Jonathan Man, for the respondent, submits that the judge correctly adopted the ‘combined approach’ as stipulated in HKSAR v Yip Wai Yin & anor [2004] 3 HKC 367 and HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.  He further says that the judge adopted the correct approach in selecting the more potent drug, namely “Ice”, as his basis for assessing the appropriate sentence.  In respect of 14.18 grammes of narcotic, a starting point of 7 years’ imprisonment is unimpeachable: see the guidelines set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

13. Mr Man further says that the enhancement of the starting point by 6 months in respect of the heroin hydrochloride component was also appropriate, given the aggravating feature that the applicant was trafficking in two serious and different dangerous drugs.  Although cross-checking the sentence by reference to the ‘absurdity test’, by which all 20.82 grammes of narcotic are deemed to be “Ice”, would suggest that the starting point would have been correct for such a quantity of “Ice” alone, the fact is that the applicant was trafficking in two types of dangerous drugs, including a significant quantity of heroin. Accordingly, the starting point and resulting sentence after discount cannot be said to be manifestly excessive.

14. In respect of the assertion that the drugs were for the applicant’s own consumption, Mr Man says there was no basis for the judge to give any discount for this factor, since she had pleaded unequivocally to the charge and her own counsel at trial never mentioned the issue of self-consumption.

Consideration

15. I can see no arguable ground of appeal against sentence in this case.  The starting point for the “Ice” component in the charge was entirely in accordance with the guidelines set out in HKSAR v Tam Yi Chun(supra).  Further, the enhancement of 6 months’ imprisonment in respect of the heroin hydrochloride component was appropriate given the fact that heroin is itself a very serious drug, the quantity was not insignificant and the applicant was “able to cater to a far wider market than the trafficker in only one kind of drug”[3].  Both the starting point and the discount, resulting in a sentence of 5 years’ imprisonment, were therefore appropriate.

Conclusion

16. The application for leave to appeal against sentence is refused.  The applicant is duly advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal and 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.

[1] Transcript of Mitigation, Appeal Bundle, p 10K

[2] ibid, pp 9O, 10F.  Counsel appears to have shifted his stance during mitigation

[3] HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011), at para 11