HKSAR v. LIU SHUK-HAN

CACC 352/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 352 OF 2000

(ON APPEAL FROM DCCC 686 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 24 August 2000, the Applicant was convicted in the District Court, following a trial before Judge Saunders, on one charge of trafficking in a crystalline solid containing 6.93 grammes of methamphetamine hydrochloride ("ice"). She was sentenced to imprisonment for a term of four years and ten months against which she now seeks leave, out of time, to renew her application for leave to appeal, the leave of the single judge having been refused on 30 March 2001.

2. At the trial, the Applicant was legally represented although at this stage she has been refused legal aid. It was not disputed that the Applicant was in possession of the drugs in question but it was claimed that this quantity of ice was for her own consumption. The ice was found in her handbag on arrest.

3. In order to prove that the drugs were being trafficked, the prosecution relied on the Applicant's confession which was made in a video-recorded interview. She admitted that after she had bought the ice on the previous day, she had split it into several small packets because she might give some of it to others. She further admitted that on the day of her arrest, she had sold one packet of ice to a person she called "Ah Chun" outside On Hing House for $150.

4. This evidence did not stand alone. The prosecution also produced evidence of the Applicant's activities shortly before her arrest. She had been seen taking something out of her handbag and giving it to a passenger inside a goods vehicle. The passenger then gave some money to the Applicant who put it into her handbag. This evidence, of course, was supported by the Applicant's confession.

5. The judge applied a guideline tariff taken from Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, which indicates that a range of sentence of between three and seven years' imprisonment is appropriate for trafficking in quantities of up to 12 grammes of ice. The judge adopted a starting point of five years' imprisonment which was neither wrong in principle nor manifestly excessive.

6. The Applicant had a clear record. The judge, although certainly not bound to do so, gave the Applicant a discount of two months on account of her clear record and personal circumstances.

7. We have been provided with a letter from the Applicant which sets out her personal and family circumstances. She has today enlarged on this by telling us of her general circumstances. These do not disclose a happy picture. However, while we can sympathise with the Applicant for having these anxieties on her mind while she serves her sentence, they are not matters which, on a charge as serious as this, could materially affect the sentence. The sentence of four years and ten months was not open to criticism of any kind.

8. The application in relation to sentence is therefore dismissed.

9. Bearing in mind that the application was devoid of all merit, we shall order that two months of the time which the Applicant has spent in custody shall not be counted towards the sentence she is serving.