SALANTE Christina A v. R.

IN THE SUPREME COURT OF HONG KONG

1994, No. 198
(Criminal)

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J U D G M E N T

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Barnett J. (giving the Judgment of the Court):

1. On 12th April 1994, the Applicant pleaded guilty to two charges. The first charge was one of possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance. The second charge was possession of apparatus fit and intended for smoking of a dangerous drug, contrary to section 36 of the same Ordinance.

2. The Applicant pleaded guilty to each charge. She was sentenced to 21 months' imprisonment in respect of the first charge and three months' imprisonment in respect of the second charge, the sentences to run concurrently. It is against the longer sentence that the Applicant now seeks leave to appeal.

3. In sentencing the Applicant, the judge took a starting point of 2 1/2 years' imprisonment. The principal ground of the appeal is that the judge erroneously allowed himself to be influenced by the established tariff for trafficking in a dangerous drug. It is fair to say, I think, that that ground is not really being pursued. Mr. Egan, for the Applicant, put forward a number of other propositions for our consideration.

4. The background of this case is of some significance. The Applicant was arrested on 18th January 1994 together with her boyfriend, one Jason Lee, in the room which they shared. There, the dangerous drugs and the apparatus were found. The dangerous drug was something of a cocktail. It included amongst other things, cannabis, but the principal ingredient of the cocktail was almost 12 grammes of dimethylamphetamine hydrochloride, commonly known as ice.

5. The boyfriend was also charged. The Applicant and the boyfriend appeared first in court on 25th March. The boyfriend pleaded not guilty. The Applicant indicated she would plead guilty. At a further appearance on 12th April, the Crown apparently accepted the Applicant's pleas and she was convicted of the two offences.

6. The judge properly obtained a report from the Drug Addiction Treatment Centre. The report advised the judge that the Applicant was not addicted to drugs and was not in need of treatment. The judge then passed the sentences which he did.

7. Earlier in time, namely on 14th December last year, the boyfriend had appeared in the magistrates court where he was fined $2,500 for possession of ice. We should mention that that information is given to us by Mr. Egan. We have no reason to doubt it but the Crown are unable to confirm.

8. While on bail for that offence, the boyfriend had been arrested on 26th November and charged with trafficking in some 23 grammes of ice. For that offence, the boyfriend was tried in the High Court in June this year. He was convicted by a jury of simple possession contrary to section 8 of Dangerous Drugs Ordinance. He was sentenced to 2 years' imprisonment having apparently offered earlier to plead guilty to simple possession.

9. The first ground which Mr. Egan puts before us now is that the judge set too high a starting point in this case on the particular facts. In this connection, he drew our attention to a decision of this court in June last year. See Criminal Appeals Nos. 39 & 40 of 1993, 9th June 1993 (unreported). This court was dealing with two separate applicants who had been convicted of possession of dangerous drugs, in those cases heroin, and who had been sentenced to two years' imprisonment. That decision was made in the light of the then recent amendments to section 8 of the Ordinance which had increased the penalty from 3 years' to 7 years' imprisonment. There are, we think, two matters to be noted about that decision. First, because of the particular facts, the court could not ignore what it called the "latent risk factor". That simply means that where there is a significant quantity of drugs involved, the person possessing those drugs might easily be tempted to dispose of some of that stock to other persons.

10. The second point is that both applicants had appalling records. Both had a long string of convictions for drug offences including possession for the purpose of unlawful trafficking. In contrast, the Applicant in the case before us has no previous conviction in relation to drug offences. She is in fact a Filipina and has two convictions for immigration offences. Otherwise she is apparently of good character.

11. Also it is urged upon us the latent risk factor does not apply in this case. It is said that the Applicant and her boyfriend shared the ice which was found in their room. That is to say they would share it to the extent of 6 grammes each. Further, they had there the apparatus necessary for smoking which is strongly suggestive that they would consume it themselves. We were further told by Mr. Egan that the Applicant has resorted to prostitution, and that prostitutes commonly take ice because it eases their lot.

12. The other substantive ground which Mr. Egan urged before us is that the judge did not give a sufficient reduction from the starting point for the particular mitigating factors. As a Filipina, Mr. Egan said the Applicant will spend her period of imprisonment in a foreign jail. Mr. Egan said, and it is not disputed, that the Applicant will be deported when she completes her sentence. She will therefore be separated from her boyfriend who has the right to remain in Hong Kong. The Applicant also pleaded guilty at the first opportunity. As we have already remarked the Applicant's record is a relatively good one.

13. Taking all these matters into account, we are satisfied which that the sentence which was imposed upon the Applicant was excessive in all the circumstances.

14. Accordingly, we allow the application. We treat the hearing of the application as the hearing of the appeal. We allow the appeal. The sentence of 21 months in respect of the first charge is set aside. We substitute therefor a sentence of 15 months' imprisonment. That sentence, of course, to run concurrently with the sentence of 3 months on the other charge.