HKSAR v. CHIU HOI YAN

CACC 295/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 295 OF 2014

(ON APPEAL FROM DCCC NO. 602 OF 2014)

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J U D G M E N T

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Introduction

1. The applicant seeks leave to appeal against the total sentence of 3 years and 11 months’ imprisonment imposed on her on 21 August 2014 by His Honour Judge Dufton in the District Court following her pleas of guilty to one charge of trafficking in a dangerous drug, namely 26.70 grammes of a mixture containing 19.43 grammes of heroin hydrochloride (Charge 1); one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug (Charge 2); and one charge of possession of dangerous drugs, namely 0.23 gramme of a crystalline solid containing 0.22 gramme of methamphetamine hydrochloride (“Ice”) and 0.58 gramme of a powder containing 0.38 gramme of ketamine (Charge 3).  The offences were committed on 17 May 2014.

The facts

2. On the afternoon of 17 May 2014, two police officers intercepted and searched the applicant outside the ground floor of 52 Fuk Wing Street, Sham Shui Po, Kowloon.  The officers found in the applicant’s possession two transparent re-sealable plastic bags containing a total of 60 pellets of what was later confirmed to be 7.74 grammes of heroin hydrochloride.  Under caution, the applicant admitted trafficking in those dangerous drugs for a reward of $1,000 per day (Charge 1).

3. A house search was then conducted at the applicant’s place of residence at Mei Yin House, Shek Kip Mei Estate, Sham Shui Po.  Inside a wooden cabinet were found, among other things: (i) three other transparent plastic bags containing a total of 90 pellets containing 11.69 grammes of heroin hydrochloride narcotic (also comprised in Charge 1), (ii) one packet containing 0.22 gramme of “Ice” and one packet containing 0.38 gramme of ketamine (Charge 3), and (iii) one glass bottle suitable for the inhalation of “Ice” (Charge 2).  Under caution, the applicant said the heroin found in the three plastic bags was for trafficking but that the “Ice” and ketamine were for her own use.

4. The narcotic element of heroin hydrochloride seized weighed a total of 19.43 grammes (Charge 1) and was estimated to be worth $27,400[1].

Reasons for sentence

5. The applicant was 40 years of age.  She had three previous convictions involving six offences, two of which were drug-related.  In sentencing the applicant, the judge noted that she had become involved in trafficking dangerous drugs for financial reasons following the imprisonment of her boyfriend.

6. The judge referred to R v Lau Tak Ming[2], noting that the sentencing bracket for trafficking in 10 to 50 grammes of heroin after trial was between 5 and 8 years’ imprisonment.  The judge adopted a starting point of 5 years and 6 months’ imprisonment for Charge 1, involving as it did 19.43 grammes of heroin hydrochloride narcotic, and reduced the sentence by one-third for the applicant’s plea of guilty to 3 years and 8 months’ imprisonment.

7. In respect of Charge 2, the judge adopted a starting point of 3 months, and reduced it, likewise, by one-third to 2 months’ imprisonment.

8. Having referred to the case of HKSAR v Mo Cho Tik[3], the judge observed that Charge 3 concerned the simple possession of two different dangerous drugs, both of admittedly small quantities.  He adopted a starting point of 9 months in respect of that charge, and reduced it to one of 6 months’ imprisonment for the applicant’s plea.

9. Applying the totality principle, the judge considered that a wholly concurrent sentence was appropriate in respect of Charges 2 and 3.  He considered, however, that the trafficking offence in Charge 1, which concerned heroin, was separate and distinct from Charges 2 and 3, which involved “Ice” and ketamine. Accordingly, he ordered 3 months of the sentence for Charge 3 to be served consecutively to the sentence on Charge 1, resulting in a total sentence of 3 years and 11 months’ imprisonment; whilst ordering the sentence for Charge 2 to be served concurrently with the sentence on Charges 1 and 3.

10. The overall sentence was, therefore, 3 years and 11 months’ imprisonment.

Grounds of Appeal

11. In her Notice of application for leave to appeal filed on 5 September 2014, the applicant did not advance any substantive grounds of appeal other than that the overall sentence was manifestly excessive.

Consideration

12. Part of the heroin hydrochloride narcotic component in Charge 1 derived from what was found in the applicant’s flat at the Shek Kip Mei Estate in Sham Shui Po.  The starting point he adopted, therefore, in respect of Charge 1 involved two separate quantities of the same drug found respectively in her possession on the street and at her home.

13. However, the other two small quantities of “Ice” and ketamine, which were accepted to be for the applicant’s own consumption (Charge 3) were also found in the applicant’s flat.  Yet they were found to merit a further 3 months’ imprisonment on top of the sentence in respective of trafficking because they were different drugs and “separate and distinct from the trafficking charge”[4].

14. I consider there is an argument that had the applicant been trafficking in all of the dangerous drugs found in her possession, both on the street and at her home, including the small amounts of albeit different drugs, namely “Ice” and ketamine, the overall starting point would have been no different from the one adopted in respect of Charge 1, which was properly within the applicable guidelines in R v Lau Tak Ming.  Therefore, it is arguable that the 3 months’ imprisonment passed on Charge 3 consecutive to the sentence on Charge 1 produced a sentence that was both manifestly excessive and wrong in principle.

15. For this reason, I am prepared to grant the applicant leave to appeal against her sentence.

[1] para. 9 of the Summary of Facts (Plea Day) at p. 8 of the Appeal Bundle

[2] [1990] 2 HKLR 370

[3] [2001] 1 HKC 261

[4] p. 13B-C of the Appeal Bundle