HKSAR v. SUETRAKOON PHINYAPORN

CACC 83/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2006

(ON APPEAL FROM DCCC NO. 860 OF 2005)

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J U D G M E N T

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1. The applicant, being D2 at trial, was convicted of a single charge, ie Charge 3, of trafficking in dangerous drugs after trial before Deputy Judge Jenkins in the District Court.  The other defendant at trial, D1, having pleaded guilty to Charge 1, being possession of a dangerous drug, and Charge 2 being an offence of breach of condition of stay, was also convicted after trial on Charge 3.  On Charge 3, the judge imposed a sentence of 5 years' imprisonment on both the applicant and D1.

2. The applicant now seeks leave to appeal against both conviction and sentence.  The grounds that she mentioned in her notice of application were simply that

“I was not the seller.  I did not commit any crime.” 

3. The facts of this case are very simple, mainly borne out by the facts admitted by the applicant and D1 and the evidence of the officers who conducted a search of the premises described in Charge 3 in which the drugs were found.  The admitted facts, where relevant, were as follows.  On 13 June 2005, at about 5 pm, being the time as stated under Charge 3, inside Flat R, 1/F, Cheung Wong Mansion, No. 17 Cheung Wong Road, Mongkok, Kowloon (“the flat”), a search conducted by police officers found on top of a folding table in the living room, a glass bottle containing 0.06 grammes of “ice”, two self-made bottles fit for consumption of “ice”, two pieces of tinfoil and a lighter.  Also found in the living room were one electronic scale, one resealable plastic bag containing a large quantity of resealable plastic bags, one roll of tinfoil, one packet of straws, one roll of adhesive tape and one piece of plastic strap.

4. The police also found in the flat a blue tin box containing:

(i) 1 resealable plastic bag containing 3 pink packets, bound by adhesive tapes, of methamphetamine hydrochloride, commonly known as “ice”,

(ii) 1 resealable plastic bag containing 2 brown packets, bound by adhesive tapes, of “ice”,

(iii) 1 resealable plastic bag containing 2 resealable plastic bags of “ice”,

(iv) 1 resealable plastic bag containing 3 yellow tablets and 1 grey tablet which contained 0.55 grammes of 3, 4-methylenedioxy methamphetamine (“MDMA” or “ecstasy”), and

(v) a tenancy agreement with the applicant's name as the tenant in respect of the flat.

5. The applicant also admitted that she had rented the flat two months before and only she had the keys to the flat.  She also admitted that the fingerprints of her right forefinger were found in two places on the adhesive tapes of the pink and brown packets in items (i) and (ii) above. 

6. According to the evidence of a police officer who had searched the flat, at the time of the search, the applicant was found to be sleeping with two young children in the only bedroom in the flat.  The tenancy agreement was found in the top drawer of a blue cabinet inside the bedroom where the applicant had been sleeping.  Inside that drawer, next to the tenancy agreement, the tin box containing the aforesaid 7 packets of “ice” was found. 

7. The applicant elected not to give evidence or call any witness.  Based on the prosecution's evidence and the admitted facts, the judge found and concluded beyond reasonable doubt that the applicant was in possession of the “ice” and the “MDMA” and that her possession of the drugs was for the purpose of unlawful trafficking. 

8. In my judgment, the judge's findings and conclusions cannot be faulted.  There was ample evidence upon which he convicted the applicant.  None of the grounds or matters raised by the applicant is able to show that the conviction is either unsafe or unsatisfactory.

9. In the circumstances, the application against conviction must be dismissed.

10. Regarding sentence, the total quantity of “ice” involved was 7.29 grammes.  The judge followed the guidelines in AG v Ching Kwok Hung, CAAR 15/1990 (the relevant band being 3 to 7 years' imprisonment for trafficking in up to 10 grammes of “ice”), to adopt a starting point of 5 years' imprisonment, which he imposed on the applicant.  

11. I have been sent a letter from a medical centre stating that the applicant is suffering from some diseases.  The physical condition of the applicant does not help to have her sentence reduced.

12. In my judgment, it is unarguable that the sentence was either wrong in principle or manifestly excessive.  The application for leave to appeal against sentence must be dismissed.

13. I remind the applicant that she is entitled to have her application determined by the Court of Appeal by way of a fresh application which must be made within 14 days of today.  I warn her, however, that if the Court of Appeal, when dealing with the fresh application, is of the view that it has no merit, it can order a loss of time that she has spent in custody to be taken away from the counting of the service of the term of her imprisonment, and that the Court can also increase sentence.