HKSAR v. YIP YUK CHUN

CACC 143/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 143 OF 2015

(ON APPEAL FROM HCCC 289 OF 2014)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The Particulars of Offence alleged that on 3 March 2014 at a flat in Tak Wah Street, Tsuen Wan, the applicant unlawfully trafficked in 18.94 grammes of a crystalline solid containing 18.58 gramme of methamphetamine hydrochloride.

2.  On 22 April 2015 the applicant appeared before Deputy High Court Judge Campbell-Moffat (“the judge”) and pleaded guilty to this charge.  She was convicted upon admitting a Summary of Facts which had been prepared for the purpose of her plea and was sentenced to 3 years and 10 months’ imprisonment.

3.  By a Form XI dated 30 April 2015 the applicant gave Notice of her application for leave to appeal against both conviction and sentence.  At the hearing of her application I dismissed it and said I would hand down my reasons for doing so at a later date.  This I now do.

The background to the offence

4.  The Summary of Facts which the applicant admitted for the purposes of her plea revealed that at the material time the applicant was a sex worker living and working from a one-woman brothel at the premises particularised in the charge.  At 7.45 pm on 3 March 2014 police officers entered the premises in order to search it. 

5.  On entry into the premises the police found a green nylon bag on the left side of the applicant’s bed.  Inside the bag were a transparent plastic box containing three bags of suspected “Ice”, an electronic scale and a plastic bag containing a large quantity of empty resealable plastic bags.  

6.  The applicant was cautioned by the police officers and in response she admitted that the substance found beside her bed was “Ice” which she said she would take when she could not sleep.  She said she bought the “Ice” in early February 2014, from a person whom she identified by name, for $4,000.  In respect of the electronic scale she said that its purpose was to weigh the “Ice” but she claimed she did not know how to use it.  When asked about the empty resealable plastic bags she said sometimes when her friends came and asked for “Ice”, she would sell one or two drops to them for $300 to make some money.

7.  Upon being arrested for trafficking the applicant said she knew it was illegal to do so.  The bags were checked for fingerprints but none of any value were lifted from them.  The police seized a mobile phone and found $3220.10 on the applicant.  

8.  The suspected dangerous drugs were examined by the Government Chemist who found them to be:

(i) one plastic bag containing 0.14 gramme of a crystalline solid containing 0.13 gramme of methamphetamine hydrochloride;

(ii) one plastic bag containing 4.48 grammes of a crystalline solid containing 4.40 grammes of methamphetamine hydrochloride; and

(iii) one plastic bag containing 14.32 grammes of a crystalline solid containing 14.05 grammes of methamphetamine hydrochloride.

9.  The total weight of narcotic of methamphetamine hydrochloride was found to be 18.58 grammes.  The estimated retail value of this quantity of drug was $9,900 at the time of seizure.  It was also admitted in the Summary of Facts that the police checked the applicant’s mobile phone and could find in it no call record of the name of the person from whom that the applicant said she bought the “Ice”.

The mitigation

10.  The applicant was represented by Mr Albert Luk who informed the court that the applicant was a 50 year old divorcee who had received only primary education and had been addicted to “Ice” since 2013.  He said that she had no person to whom she could turn for help and no one she could rely upon and so she had become a prostitute in order to earn a living.

11.  Her counsel repeated a claim made by the applicant to the police that she had been taking the “Ice” for the purpose of helping her to sleep but when he was queried by the judge that “Ice” in fact had the opposite effect he said that was also his understanding and he did not press the point.

12.  He then went on to say that the applicant had some psychiatric problem.  This was a claim which concerned the judge and she required Mr Luk to investigate this matter further. 

13.  Mr Luk then went on to claim that half of the quantity of drugs the applicant possessed would have been used by her for her own consumption.  He informed the court that it was a claim which was not disputed by the prosecutor and that was confirmed by Mr Whitehouse who appeared for the respondent at trial. The judge queried this concession because nothing consistent with the consumption of “Ice” was found in the flat.  But there were resealable bags found which would be consistent with trafficking.  Mr Whitehouse agreed that there was an absence of equipment that could be used for consuming the “Ice” and recognized that in those circumstances no one could really know what proportion of the drugs the applicant would have consumed and what proportion of the drugs she would have trafficked.  Nevertheless, he said that the prosecution accepted her claim that 50% of the drugs were for her own consumption.

14.  The mitigation was then adjourned to enable Mr Luk to obtain more information on the applicant’s mental health and to determine whether she was currently receiving any psychiatric treatment.  When the court later resumed Mr Luk informed the judge that the applicant was on the medical observation list because of some mental health problem.  She was being regularly seen by a psychiatrist, had been prescribed medication and that her condition was currently under control.  He said in view of the information he had been given he did not think it was necessary for the judge to call for any medical report and invited her to pass sentence without doing so.      

The Reasons for Sentence

15.  After referring to the applicant’s personal circumstances the judge noted the claim that 50% of the “Ice” was for the applicant’s own consumption. Despite finding this claim hard to believe the judge said that in view of Mr Whitehouse’s concession on the matter she would sentence the applicant on that basis.

16.  The judge then referred to the criminal record of the applicant and noted that the prior offences related essentially to her current mode of employment and all dated back to 1986.  The judge said she would therefore not consider them when passing sentence on the applicant.

17.  The judge said she would adopt a starting point of 7 years and 5 months’ imprisonment after trial for the 18.58 grammes of “Ice”.  She then said:

“Given the acceptance by the prosecution of your 50 per cent consumption of that quantity, taking into account that there is an offence of possession of that amount and the latent risk that within that amount you may have supplied it to others, I discount that starting point by 18 months and then I give you a further one-third discount for your plea of guilty.”

18.  The judge went on to impose upon the applicant a sentence of 4 years and 6 months’ imprisonment.  However, she amended her calculation and informed the applicant that the starting point of 7 years and 5 months (89 months) would remain unchanged but that she would discount that starting point by 20 months to allow for the claim of self‑consumption.  This brought the sentence to 69 months’ which when discounted further by one third to allow for the plea of guilty became 46 months or 3 years and 10 months, which revised sentence the judge then imposed.

The grounds of appeal

19.  The applicant is legally unrepresented and has not filed any grounds of appeal.  Attached to her Form XI is the following statement:

“ In 2013, (I) did call the Complaints Against Police Office, (saying) that there was a large quantity of dangerous drugs at the material unit.

 In 2015, the Police came to Lo Wu Correctional (Institution), saying that (it was) a triad case (involving) dangerous drugs and monetary transaction.  Why didn’t the lawyer raise this to provide (me) with a fair defence.  (He/She) also failed to assist me in bargaining for (a lesser charge of) possession (of a dangerous drug).  I am mentally-ill but no psychiatric reports were called for, resulting in an unfair judgment against me.”

20.  Since filing this document the applicant has not forwarded any other submission or grounds of appeal to the court.

21.  However, at the hearing of the application the applicant said in respect of her application for leave to appeal against conviction that the dangerous drugs were not hers but belonged to triad members who sold drugs from the other units in her flat.  She admitted consuming the drugs and in response to a query from the court she confirmed that at her plea she admitted that she had told the police she occasionally sold “Ice” to friends.  In respect of her statement to the police she complained that the police misled her and told her to admit everything.  She revealed all this to her lawyer but nevertheless elected to plead guilty.  She said she still wished to plead guilty but only to an offence of simple possession. 

22.  In respect of her application for leave to appeal against sentence she simply prayed in aid her mental illness as a reason for a lesser sentence.

Discussion

23.  The complaint that her counsel should have tried to negotiate a plea bargain to plead guilty to only simple possession has no merit.  The applicant had confessed to the police that she occasionally trafficked in the “Ice” in order to raise money.  With such an admission there was no basis for Mr Luk to put forward such a plea bargain and no reason for the prosecution to entertain it.  Nor does the fact that a proportion of the drugs, even a large proportion, was for the applicant’s own consumption provide a reason for the court not to convict her of trafficking.[1]

24.  Nor has the applicant provided any legal basis for this court to quash her conviction for trafficking and substitute for it a conviction for simple possession of dangerous drugs.  She has not said anything to throw doubt either on the voluntariness of her plea or that she made a considered and informed decision to plead guilty after receipt of proper legal advice.  The principles relating to treating an unequivocal plea of guilty as a nullity are set out in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 and nothing the applicant has said would bring her within the operation of the principles set out in that case.

25.  The applicant’s complaint that the judge did not obtain a psychiatric report on her is unfounded.  Her counsel, on prompting from the judge, enquired into the state of the applicant’s mental health and made the tactical decision, in an exercise of professional judgment, that no benefit would be derived by the applicant from obtaining a psychiatric report on her.  It was her own counsel who invited the judge to proceed with sentencing without such a report.  There is no merit in this complaint. 

26.  Nor is the applicant entitled to any further discount of her sentence by virtue of her mental illness.  She is receiving treatment for it and will no doubt continue to have access to appropriate health care services as and when she needs it.

27.  The applicant fell within the guideline of 7-10 years’ imprisonment for trafficking in a quantity of narcotic of between 10 and 70 grammes.[2] 7 years and 5 months’ imprisonment is an appropriate starting point for this quantity of 18.58 grammes of “Ice”.

28.  The judge discounted this starting pointby 20 months to allow for self‑consumption.  The Court of Appeal has said that the discount for self-consumption should be in the range of 10-25%.[3]  The judge has given the applicant a discount of around 22% which, in the circumstances of this applicant, can only be described as generous.

29.  In reaching her final sentence the judge then awarded the applicant the usual one-third discount for her plea of guilty.

30.  There is no error by the judge in any of the sentencing steps she has taken and nor is there any excessiveness in the final sentence. Indeed quite the opposite.  The applicant benefited from an extraordinary concession from the prosecution in respect of the percentage of the drugs that would have been consumed by her and this resulted in a sentence which, if anything, was lenient.  There is no merit in the application for leave to appeal sentence.

Conclusion

31.  For these reasons I refused this application for leave to appeal against both conviction and sentence. 

32.  At the conclusion of the hearing I informed the applicant of her right to renew her application but also informed her of the existence of the power contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221 and of the possibility that should she renew her application and should the Court of Appeal find no merit in it, the court might exercise the section 83W(1) power adversely to her.   

[1] See HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69.

[2] As this offence pre-dated HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 the appropriate guideline is to be found in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

[3] See HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.