HKSAR v. MA SIN YEE

CACC 379 /2018

[2019] HKCA 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 379 OF 2018

(ON APPEAL FROM HCCC NO 179 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  On 19 December 2018, the applicant (D1) appeared together with Wong Chi-cheong (D2) before Deputy Judge Woodcock (“the judge”) in the High Court, where she pleaded guilty to one count of Trafficking in a dangerous drug, namely 46.67 grammes of solid containing 40.81 grammes of cocaine, 166 grammes of solid containing 148 grammes of cocaine hydrochloride and 2.04 grammes of crystalline solid containing 1.99 grammes of methamphetamine hydrochloride (commonly known as “ICE”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  She was sentenced by the judge to a total term of 7 years and 8 months’ imprisonment and now applies for leave to appeal against her sentence. 

The Summary of Facts

3.  In the small hours of 23 December 2016, police officers, acting on information and with a search warrant, raided Room 1302 of Casa Hotel in Yaumatei (“Room 1302”).  The applicant and D2 were found to be sleeping inside.

4.  Upon search, police officers found and seized from Room 1302 the following items:

i.   A total of 46.67 grammes of solid containing 40.81 grammes of cocaine;

ii.   17 packets with a combined total of 166 grammes of solid containing 148 grammes of cocaine hydrochloride;

iii.   A total of 2.04 grammes of crystalline solid containing 1.99 grammes of ICE;

iv.   Apparatus containing traces of cocaine, such as a glass beaker, metal spoons, lighters, wooden chopsticks, a pair of scissors, electronic scales, metal sieves, air filters, a metal pot with glass lid and a plastic knife;

v.   A plastic bottle containing a liquid with traces of cocaine; and

vi.   A glass bottle containing 570 millilitres of a liquid containing ammonia, and another glass bottle also containing 570 millilitres of a liquid but containing acetone.

5.  The estimated retail value of the cocaine seized was HK$307,141.25; and of the ICE, HK$125.70.  

6.  In a subsequent video record of interview under caution, the applicant claimed, inter alia, that she had been given the dangerous drugs by a foreigner named “Andy”, which she would sell to her friends at HK$300 per ½ gramme; she was a cocaine user herself; and she had been unemployed for between 6 and 12 months. 

The mitigation

7.  The applicant was 28 years of age with a clear record.  It was asserted on her behalf that she was given the dangerous drugs by “Andy” to sell and distribute to customers on the rear staircase of the hotel.  In return, the applicant would get a free supply of dangerous drugs for herself.

8.  The applicant had been a cocaine user since about 2014, and, indeed, a urine sample obtained from her in custody tested “positive” for cocaine.  Furthermore, a plastic bottle at the scene of arrest was found to contain traces of cocaine, lending support to the assertion that the applicant had been using part of the cocaine seized herself.  Nevertheless, the applicant indicated through her counsel that she would not adduce further evidence in support of her claim that some of the drugs were for her own consumption.

The judge’s Reasons for Sentence

9.  In assessing whether a further discount should be given to reflect the fact that some of the drugs were for the applicant’s own consumption, the judge directed herself in accordance with the Court of Appeal’s judgments in HKSAR v Liu Ming Sze^[1] and HKSAR v Tsoi Man Chun^[2].  In the absence of any evidence from the applicant herself, the judge was not prepared to accept the mitigation advanced that a “significant proportion” of the drugs seized were for her own consumption.

10.  In accordance with the sentencing guidelines in R v Lau Tak Ming & Another^[3] in respect of the trafficking in 50 to 200 grammes of cocaine narcotic, the judge considered that the sentencing range should be between 8 and 12 years’ imprisonment after trial.  Applying the guidelines to the total quantity of 188.81 grammes of cocaine narcotic seized, she adopted an initial starting point of 11 years and 8 months’ imprisonment.

11.  In accordance with the guidelines in HKSAR v Tam Yi Chun^[4]in respect of up to 10 grammes of ICE, the judge considered that the sentence should be in the range of 3 to 7 years’ imprisonment after trial.  Applying this guideline to the amount of ICE seized, she adopted an initial starting point of 3 years and 10 months’ imprisonment.

12.  Since the amount of ICE concerned was modest and represented a small percentage of the total amount of drugs seized, the judge treated cocaine as the base drug for sentencing under the “combined approach”.  She found it appropriate to add 2 months’ imprisonment for the amount of ICE involved, which yielded an initial overall starting point of 11 years and 10 months’ imprisonment.

13.  The judge then gave the applicant a discount of 4 months’ imprisonment, in particular because of her previous clear criminal record and arrived at a lower starting point of 11 years and 6 months’ imprisonment.  Giving the applicant the customary one-third discount for plea, the judge imposed a sentence of 7 years and 8 months’ imprisonment.

The applicant’s grounds of appeal

14.  In her Form XI Notice, the applicant merely stated that she was dissatisfied with the sentence and intended to appeal against it.  She did not file any written submissions in support of her application.  This morning, at the commencement of proceedings, the applicant said she wishes to abandon her application for leave.  I refused to allow her to abandon her application at this late stage and indicated that I would in any event give judgment on the merits of her application.  The applicant made no further submissions.

Consideration

15.  During mitigation, the judge made it clear to defence counsel that she was not prepared to receive a bare assertion from the Bar table that a “significant part” of the dangerous drugs was for the applicant’s own consumption, and that if the applicant wished to make good the submission, she would have to give evidence.  Notwithstanding that the applicant was well aware of her right to give evidence, her counsel indicated that the applicant did not wish to testify.

16.  The Court has recently re-affirmed in HKSAR v Cheung Wai Man^[5] that when addressing a claim that some of the dangerous drugs seized were for a defendant’s own consumption, the sentencing court must first be satisfied that a “significant proportion” of the drugs were to be consumed by the defendant.  If the defendant does not meet this threshold, then that is normally the end of the matter. 

17.  Given the substantial quantity of cocaine seized, the facts admitted by the applicant, and the mitigation advanced by her counsel that she was selling the cocaine in question on behalf of “Andy”, the judge was entitled to reject the assertion made that a “significant proportion” of the cocaine was intended for the applicant’s own consumption.  The Court of Appeal does not, save in exceptional circumstances, hear evidence.  The time to make a claim that a “significant proportion” of the dangerous drugs in question were for a defendant’s own consumption, where the claim may then be supported by the defendant’s evidence and tested by cross‑examination, is at the court of trial.

18.  In respect of the starting points for the cocaine and ICE in question, the judge correctly applied the respective sentencing guidelines under both Lau Tak Ming and Tam Yi Chun.  Further, I can detect no error in the judge adopting the “combined approach” when sentencing, nor was the resulting starting point excessive.  Indeed, the applicant may consider herself fortunate that no enhancement was made for her trafficking in two different types of dangerous drugs, which is a recognised aggravating factor, for the trafficker is then able to cater for a wider market than the trafficker in only one kind of drug: see HKSAR v Yim Hung Lui Ricky^[6].

19.  Similarly, the applicant could have no possible complaint about the 4-month deduction from the starting point for her clear record, a discount which may be said to have been generous given the repeated statements of the Court of Appeal that a clear record for offences of this nature is a factor which is subsumed into the one-third discount: see HKSAR v Pau King Kong^[7].

20.  For these reasons, it is not in my view reasonably arguable that the sentence of 7 years and 8 months’ imprisonment passed upon the applicant for this offence was either manifestly excessive or wrong in principle.  The application for leave to appeal against sentence is accordingly refused.

Loss of time warning

21.  The applicant is duly advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending her appeal, if the Court of Appeal were to come to the view that that was no justification for the renewal of the application.