HKSAR v. SO MING YAN, KELLY

CACC 196/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 196 OF 2013

(ON APPEAL FROM HCCC NO. 365 OF 2012)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the reasons for judgment of the Court):

Introduction

1.  This was an application by the applicant for leave to appeal against sentence.  On 14 March 2014, we dismissed the application and said we would give our reasons in due course.  This we now do.

2.  The applicant had pleaded guilty before Deputy High Court Judge Lugar-Mawson to the following charges:

a. Two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Counts 1-2);

b. One count of possession of an unlawfully obtained Home Visit Permit, contrary to section 42(2)(c) of the Immigration Ordinance, Cap 115 (Count 3);

c. Two counts of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (Counts 4-5); and

d. One count of handling stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap 210 (Count 6).

3.  The applicant was sentenced to a total of 9 years’ imprisonment, the particulars of which are as follows:

a. Count 1 - 1 year and 8 months’ imprisonment;

b. Count 2 - 8 years and 8 months’ imprisonment, to run concurrently with Count 1;

c. Counts 3 to 5 - each 2 months’ imprisonment, all to run concurrently with each other and with Counts 1-2;

d. Count 6 - 2 years’ imprisonment, 4 months of which to run consecutively with Count 2.

Summary of facts

4.  On the day in question, the applicant was intercepted by the police when she was about to board a private car outside a village house at Sai Kung, from which she had earlier emerged.  The police found a plastic bag containing what was later confirmed to be 2.86 grammes of a solid containing 2.44 grammes of cocaine concealed inside the right sleeve of her jacket, near her wrist (Count 1).  Apart from the dangerous drug, cash in the sum of $14,230 was also found on her person.  Another sum of $74,887.90 in cash was also found inside her handbag.  Further, a Citibank Visa card in the name of SHEK Siu-fong was found inside a wallet inside the handbag (Count 6).  The said card had been reported lost by the owner.

5.  The applicant was then escorted back to the village house.  A man surnamed Chan was also found inside the house.  Upon search of the premises, the police found the following dangerous drugs (Count 2):

a. 9.81 grammes of a solid containing 7.90 grammes of cocaine (valued at $14,493);

b. 89.33 grammes of a crystalline solid containing 87.26 grammes of methamphetamine hydrochloride (Ice) and 0.50 grammes of ketamine (valued at $70,392);

c. 6.15 grammes of herbal cannabis (valued at $719);

d. 75 tablets containing 506 milligrammes of nimetazepam (valued at $4,875); and

e. 5.36 grammes of a powder containing 3.43 grammes of ketamine (valued at $621).

6.  The police also found a Home Visit Permit in the name of CHU Fung-man (Count 3) and two Hong Kong identity cards in the name of WONG Fung-ming and SHEK Chak-ping (Counts 4 and 5).

Background of and mitigation for the applicant

7.  The applicant is 32 years old and had three previous convictions, one being for possession of dangerous drugs, for which she was put on probation for 12 months.  She was operating a shop selling dried seafood and jewellery made from shells at the Sai Kung Waterfront.  She was cohabiting with Chan in the said village house belonging to her mother.

8.  In mitigation, the court was told that the applicant had been a drug addict for 5 to 6 years, consuming both Ice and cocaine.  The applicant claimed that she and Chan jointly operated a drug trafficking business from the said village house, with Chan being the key operator.  Though Chan was jointly charged with the applicant on Count 2, Chan had been acquitted after trial.  His acquittal was described by the applicant’s counsel as a “bitter pill” for her to swallow.

9.  The applicant claimed that she held the Home Visit Permit, Hong Kong identity cards and the Citibank Visa card belonging to others as some kind of security against payment for the dangerous drugs sold to customers.  The applicant also claimed that the larger sum of money found inside her handbag had nothing to do with the drug trade, but represented profits she made from dealing with shares, which she intended to use to re-pay her mother.

Reasons for Sentence

10.  The judge accepted the applicant was infatuated with her cohabitee Chan and was under his influence to some extent.

11.  He adopted a starting point of 2½ years for Count 1.  Regarding Count 2, the judge adopted a starting point of 13 years for what he described as “a cocktail of dangerous drugs”.

12.  After giving the applicant the usual one-third discount for plea, the sentence for Count 1 was 1 year and 8 months’ imprisonment, and for Count 2, 8 years and 8 months’ imprisonment.

13.  The judge accepted that he should treat both the dangerous drugs trafficking counts as one course of conduct and ordered both sentences to run concurrently.

14.  After referring to the authorities brought to his attention by defence counsel, the judge adopted a 3-month starting point each for Counts 3 to 5, reducing the sentences to 2 months’ imprisonment each after taking into account her plea.  These three sentences were ordered to run concurrently with each other, and also concurrently with Counts 1-2.

15.  As to Count 6, the judge adopted a starting point of 3 years and reduced the sentence to 2 years’ imprisonment after the discount for plea.  Four months of this sentence was ordered to run consecutively with the sentence of 8 years and 8 months’ imposed on Count 2.

Grounds of appeal

16.  The applicant, who is unrepresented, did not advance any substantive grounds of appeal against the sentence.  At the hearing on 20 February, she claimed that she assisted her blind boyfriend to run the drug trafficking business, believing that in doing so they would love each other more.  Her boyfriend provided dangerous drug for her consumption and took care of the household expenses.  He led her to believe that once they had saved up to $150,000, they would quit trafficking in dangerous drugs.  However, when they were both arrested, her boyfriend put all the blame on her and completely ignored her.  In the end, he was acquitted by the jury after trial.  The applicant said she was very remorseful and asked this Court to consider a lenient sentence.  She promised to be law-abiding and never to take drugs again.

17.  The applicant also asked us to take into consideration certain matters which the respondent has needed to clarify.  The case was accordingly adjourned for that to be done.  We have since learnt that the matter alluded to by the applicant did not result in anything which could advance her appeal.

Discussion

18.  No complaint can be laid on the 2½ year starting point adopted by the judge regarding the 2.44 grammes of cocaine in Count 1 (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69; and R v Lau Tak Ming [1990] 2 HKLR 370).

19.  However, in the circumstances of the present case, where both offences were committed on the same day and the facts were closely linked, as the judge found them to be, in that the dangerous drugs in Count 1 were obviously connected with the dangerous drugs in Count 2, we are of the view that the proper approach was to have regard to the total amounts of dangerous drugs in Counts 1 and 2 so to arrive at an overall starting point (see HKSAR v Chow Yu Chi CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542, and HKSAR v Wong To [2001] 4 HKC 499).

20.  We consider that the combined approach, which involves calculating the applicable sentence for the more serious drug and then adjusting the sentence upwards to take into account significant quantities of the other less serious drugs, was appropriate here (see HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367).

21.  While both Ice and cocaine are dangerous drugs of a very serious nature, in view of the much larger quantity of Ice, the 87.26 grammes of Ice should be used to calculate the appropriate starting point, with the narcotic values of the other dangerous drugs, namely the total of 10.34 grammes of cocaine, 3.93 grammes of ketamine and 6.15 grammes of herbal cannabis, being taken into consideration to make the upward adjustment.  We can disregard the small amount of nimetazepan for present purposes.

22.  Adopting this combined approach, the applicable starting point for trafficking in Ice would have been one of 10½ years’ imprisonment (see Attorney General v Ching Kwok Hung [1991] 2 HKLR 125), which would have been upwardly adjusted to an overall sentence of 13 years after taking into account the other dangerous drugs, in particular the quantity of more than 10 grammes of cocaine.  After giving the applicant the usual one-third discount for plea, the sentence would have been one of 8 years and 8 months’ imprisonment.

23.  The sentences imposed on the applicant on Counts 3-5 would appear, on the face of it, to be somewhat lenient.  However, bearing in mind that the applicant is a Hong Kong Permanent Resident and the documents of identity would not have assisted her in enhancing her own status, there might well be some truth in the explanation she had given for their possession, namely as a security against payment for the dangerous drugs bought from her business.  We are not minded to interfere with the sentences imposed.  For the same reason, we do not find the judge’s order for these sentences to run concurrently with the dangerous drug trafficking offences wrong in principle.

24.  In relation to Count 6, whilst the applicant claimed that her possession of the Visa card was for the same purpose as the other documents of identity, one must not forget the potential loss which may result from unauthorised use of another’s credit card.  Accordingly, a higher sentence was warranted.  Whilst it is arguable that the starting point of 3 years imposed is on the high side (see HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, where the Court of Appeal adopted a starting point of 3 years for the handling of seven credit cards), the judge only ordered 4 months of this sentence to run consecutively with the sentences imposed for the trafficking offences.  Inaccordancewith the principle of totality, we do not find it necessary to interfere with this sentence.

Conclusion

25.  In approaching sentence by a slightly different route from that adopted by the judge, one nevertheless comes to the same total sentence of 9 years’ imprisonment for all six offences after plea.

26.  The overall sentence imposed by the judge was neither wrong in principle nor manifestly excessive.  For these reasons, we dismissed the application for leave to appeal against sentence.