NG SIU LAN v. R.

IN THE COURT OF APPEAL

1994, No.136
(Criminal)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. The applicant Ng Siu-lan was convicted on 11th March 1994 after trial before Deputy Judge Muttrie in the District Court on one charge of trafficking in dangerous drugs. She was sentenced to five years' imprisonment.

3. The applicant, a female, was aged 34 at the time of her conviction.

4. The particulars of offence were that on 17th May 1993 at Hang On Street, Sau Mau Ping, Kowloon, she trafficked in a mixture weighing 137.43 grammes which contained 45.25 grammes of salts of esters of morphine.

5. The prosecution evidence at trial was that the applicant was stopped in the street by the police and when searched there was found tucked into the waist of her trousers a package. When this was unwrapped, it was found to contain five plastic bags of heroin. These constituted the subject matter of the charge. When confronted by the police the applicant said that the bags contained white powder, that she was sick and consumed it herself and she also sold it to others. When her home was searched the police found a bag containing 19 drinking straws, three further straws, a set of scales and packaging material, all consistent with trafficking in dangerous drugs.

6. The applicant has a long history of convictions for criminal offences, many of them drug-related, going back to 1978. She could not therefore claim any credit for her character or for any guilty plea.

7. The judge rightly approached the question of sentence on the basis of the guidelines laid down by this court in the case of Lau Tak-ming [1992] HKLR 360 and correctly concluded that the applicant's case fell within the range of five to eight years. There were no mitigating circumstances which might have brought the case within the lower end of the range, but the judge was inclined to take a merciful view of the facts and entertained the possibility that part of the drugs might have been for her own consumption. He therefore selected a sentence which fell at the lowest end of the range. In our judgment the sentence was in the circumstances of this case a merciful one. There are no grounds for interfering with the sentence, the application for leave to appeal is therefore refused.