HKSAR v. LAI SUK YIN

CACC 158/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 158 OF 2015

(ON APPEAL FROM HCCC NO. 506 OF 2014)

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J U D G M E N T

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Introduction

1.  On 28 November 2014, the applicant was committed to the High Court for sentence, following her plea of guilty at the Eastern Magistracy to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 4 May 2015, she appeared before Deputy Judge Tallentire in the High Court where she was sentenced to 5 years and 8 months’ imprisonment.  She now seeks leave to appeal against sentence.

The facts

2.  The applicant was the tenant of Room 1205, Kwai Tong House, Yau Tong Estate, Lei Yue Mun Road, Yau Tong, Kowloon (the unit).

3.  In the evening of 17 May 2014, when a team of police officers were conducting a house search at the unit, the applicant returned.  The officers continued the house search in the applicant’s presence.  In a bedroom inside the unit, the officers found:

(i) a plastic drawer which contained a re-sealable plastic bag containing what was later found to be 11.55 grammes of a powder containing 9.36 grammes of ketamine, five spoons with traces of ketamine, and 2 re-sealable plastic bags containing 60 empty re-sealable plastic bags;

(ii) a brown and blue paper box containing (a) 2 re-sealable plastic bags with 26 re-sealable plastic bags inside, which in turn contained 241.68 grammes of a powder containing 164.8 grammes of ketamine, (b) 2 re-sealable plastic bags containing 43.17 grammes of a powder[1] containing 36.83 grammes of ketamine, and (c) an electronic scale;

(iii) a Hello Kitty paper box containing 7 empty re-sealable plastic bags;

(iv) a pink paper box containing 8 re-sealable plastic bags inside a re-sealable plastic bag, the 8 re-sealable plastic bags themselves containing what was later analysed to be 107.65 grammes of a powder containing 76.91 grammes of ketamine; and

(v) a glass bottle containing some liquid containing traces of methamphetamine (commonly known as “Ice”).

4.  The applicant was arrested for trafficking in a dangerous drug and possession of equipment fit and intended for smoking dangerous drugs.  Under caution, the applicant replied: “The K Chai is for delivering to others.  The Ice bottles are for my own consumption of Ice.”  In a subsequent cautioned interview, the applicant said she was in need of money and that it was a friend by the name of To Fu who had persuaded her to deliver the drugs to others for a reward of $3,000.

5.  The total seizure amounted to 408.01 grammes of a powder (although my own calculation from the quantities in the Summary of Facts would suggest 404.05 grammes of powder[2]) containing 287.9 grammes of ketamine.  The street value of the ketamine was $49,778.

Mitigation

6.  The applicant was 36 years of age and had a clear record prior to her conviction for the present offence.  She was a married women with two daughters aged 12 and 16.  Her husband had run up gambling debts and subsequently disappeared in around 2012, since when she had lost touch with him.  However, in order to repay her husband’s debts, the applicant had had to borrow $620,000 from two banks.  Unemployed, she had been living on CSSA in the sum of $5,400 per month.  It was submitted to the judge that she had committed the offence because of the financial straits in which she had found herself.

Reasons for sentence

7.  In sentencing the applicant, the judge referred to the sentencing guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 suggesting a sentence after trial of 6 to 9 years’ imprisonment for between 50 and 300 grammes of ketamine.  The judge adopted a starting point of 8½ years’ imprisonment in respect of 287.9 grammes of ketamine.  He observed that the only real mitigation was the applicant’s plea of guilty, for which she was entitled to the full one-third discount.  Accordingly, he sentenced her to 5 years and 8 months’ imprisonment.

The subsequent conviction and sentence

8.  According to the applicant’s updated criminal record, she was subsequently sentenced on 6 May 2015 to 4 months’ imprisonment for an offence of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.  That sentence was ordered to be served consecutively to the sentence imposed on her in the present case.

Grounds of appeal against sentence

9.  In the applicant’s statement attached to the Notice of application for leave to appeal against sentence filed on 28 April 2015, she did not articulate any grounds of appeal against sentence, nor has she filed any written submissions in support of her application, beyond saying today that her sentence is manifestly excessive.  I should say that the applicant has today applied for an adjournment of this application.  However, I have refused the request given that the case is now 16 months old and there does not seem any prospect in the near future of the applicant obtaining legal representation.

Consideration

10.  Mr Lui, for the respondent, submits that on a strictly arithmetical basis of sentencing for a quantity of 287.9 grammes of ketamine, the starting point would have been 8.85 years’ imprisonment.  Yet, the starting point actually adopted was 8½ years’ imprisonment.  The one-third discount for plea was entirely appropriate and the resulting sentence of 5 years and 8 months’ imprisonment was, therefore, unimpeachable.

11.  I respectfully agree with Mr Lui’s submissions.  I can at this stage see no arguable ground for appeal in respect of either the starting point for sentence or the discount.  The resulting sentence appears to be entirely appropriate.  Furthermore, the subsequent imposition of 4 months’ imprisonment for the wholly different offence of fraud by a different court cannot affect the correctness of the present sentence.  The court dealing with the applicant in the subsequent sentence would almost certainly have been apprised of the present sentence and considered the question of totality before passing that sentence.  I say that because the applicant’s counsel told the judge about the other case, the loss that was involved and the sentence that might be anticipated, and further accepted that the other sentencing court “will have to deal with totality after today.  It’s not your concern…”.[3]  I am today informed that the magistrate who subsequently sentenced the applicant for fraud was well aware of her existing sentence.

12.  It is of course open to the applicant to appeal against her subsequent sentence for the fraud offence to the appropriate court which deals with appeals from the magistracy, on the grounds of totality or any other basis.  However, that is not the concern of this Court.

Conclusion

13.  In all the circumstances, I can at this stage see no arguable ground of appeal against the present sentence.  The application is therefore refused.  The applicant is duly advised of her 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.

[1] This was a typographical error in the Summary of facts and the figure should have been 47.13 grammes.  However, the quantities set out in the charge are correct.

[2] The discrepancy is explained at Footnote 1

[3] Appeal Bundle, page 10T-11G