HKSAR v. NG LIN MEI

CACC 36/2017

[2018] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 36 OF 2017

(ON APPEAL FROM HCCC 54 OF 2016)

------------------------

------------------------

__________________________

REASONS FOR JUDGMENT

__________________________

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 the count alleged that on 26 June 2015 on the 35^th floor of Wang Sum House, Cheung Wang Estate, Tsing Yi the applicant unlawfully trafficked in 28.7 grammes of crystalline solid containing 28.3 grammes of methamphetamine hydrochloride (“Ice”).

2.  On 3 February 2017 the applicant appeared before Campbell-Moffat J (“the judge”) and pleaded guilty to this offence.  On the same day she was sentenced to 5 years and 6 months’ imprisonment. 

3.  The applicant subsequently filed a Notice of Application for Leave to Appeal against her sentence (Form XI) and at the hearing of her application I refused it and said I would hand down my reasons for doing so in due course.  These are my reasons.

The background to the offence

4.  On 26 June 2015 at around 4 am the police officers on patrol near Wang Sum House, Cheung Wang Estate, Tsing Yi observed the applicant acting suspiciously.  After observing her enter the building, the team of officers followed her and located her on the 35^th floor where she was detained and searched.

5.  The applicant was carrying a bag in which there was a metal container which contained 4 plastic bags.  The applicant was arrested for trafficking in a dangerous drug and cautioned.  In response to the caution she denied trafficking in the drugs and claimed that they were for her own consumption.

6.  In the Summary of Facts which was used for her sentencing the applicant specifically admitted that she was in possession of the dangerous drugs for the purpose of trafficking in them. 

7.  Analysis by the Government Chemist revealed that the dangerous drug was a mixture weighing 28.7 grammes containing 28.3 grammes of Ice.  The estimated retail street value of the Ice was HK$11,193.

The mitigation

8.  The applicant was represented at trial by Mr Leung Chun Keung who informed the court the applicant was aged 40, single, and before the offence had been living with her boyfriend, her mother and her brother.  She has a son aged 9 and her son is now being taken care of by her sister. 

9.  Mr Leung informed the court that he was instructed that half of the quantity of Ice possessed by the applicant was for her own consumption.  The prosecution, represented by Mr Andrew Raffell, accepted that part of the drugs may have been for the applicant’s own consumption but could not agree to a specific amount and could not accept that as much as half of the drugs were for self-consumption.  He indicated that if the applicant wished to pursue this claim it would be necessary for her to testify to this effect.

10.  The judge then indicated to Mr Leung that she was unwilling to accept a bare assertion that this quantity of drugs was for the applicant’s own consumption.  The judge pressed Mr Leung to make a decision as to whether or not he wished a Newton hearing to determine whether a significant proportion of the drugs were for the applicant’s own consumption.  After taking instructions Mr Leung informed the judge that he would not be asking for a Newton hearing. 

The judge’s Reasons for Sentence

11.  After setting out the facts of the case and the mitigation that had been advanced on behalf of the applicant the judge said[1]:

“By reason of your plea, you accept that the story about self-consumption was not the truth. I do not accept that you were going to an address on the 35th Floor of Wang Sum House to smoke any part of those dangerous drugs. I take the view, in accordance with your plea, that you were on your way to deliver the one packet you had with the 28.3 grammes of ‘Ice’ within it.

I do, however, accept that you have a record of possession of dangerous drugs, and indeed trafficking, and that you were found to have dangerous drugs in your system by the authorities after arrest. But that does not automatically mean that the court is going to accept that some part of what you had on you that night was for your personal consumption. Especially as you were nowhere near your own address and you did not provide the identification of the person with whom you say you were going to consume those dangerous drugs so that it could be verified.

The prosecution have taken an entirely proper stance in accepting that you were a drug addict but not being in a position to say whether you were going to consume any part of the dangerous drugs you had on you that morning. Your assertion that half of the drugs were for your own consumption is a bare assertion. You were provided with an opportunity to take part in a Newton hearing and you declined. The only evidence the court has before it is that you were in a place which is not your home address, with four plastic bags, some of which had traces of dangerous drugs and one of which had 28.3 grammes of ‘Ice’ within it.”

12.  The judge then directed herself in accordance with the trafficking guidelines for Ice as set out by the Court of Appeal in HKSAR v Tam Yi Chun[2]. She referred to the relevant sentencing range laid down in this case as being between 10 grammes and 70 grammes for which a starting point after trial would be 7 to 11 years.  For trafficking in 28.3 grammes the judge said she would adopt a starting point of 8 years and 3 months.  She then said[3]:

“I have taken into account what Mr Leung has urged on your behalf, as well as your letter indicating your remorse and the position that you have put your mother and son in. I have also taken into account that which has been said by your sister and brother-in-law. Consumption of dangerous drugs is an evil which affects many others, not just yourself. Your family, and in particular your son, will suffer as a result of your selfish act.

Despite what has been said and written, there is no mitigation which can affect the sentence I must pass upon you and you will go to prison for 5 years and 6 months.”

The applicant’s grounds of appeal

13.  The applicantwas not legally represented and so has not filed any Perfected Grounds of Appeal.  In a document attached to her Form XI she complained that the judge had not allowed her any discount in sentence for the claim that part of the drugs was for her own consumption.  She went on to explain why she had not testified in support of her claim at her sentencing hearing.  She said:

“… On the 2^nd of March, the Judge did ask me to make (deletion) a further statement, but at that time I was not clear about (its) meaning.

Eventually following the sentence, the Judge ordered that the drug evidence be confiscated and the mobile phone be returned to me myself.  It was at that time that I realized on the day of the incident my friend, ‘that is the friend who (insertion) was given half of the drug(s) trafficked’, had sent a message to me, which was his address and the message was information from the telecommunications company.  When I was arrested that day, I also told the police the address while that police officer said (it) did not have to be mentioned.”

14.  At the hearing of her application the applicant said she had nothing further to add. 

Discussion

15.  The applicant was represented by counsel at trial.  In the course of the sentencing hearing the judge gave a very clear indication to her counsel as to the attitude that she, the judge, was adopting in the face of the Admitted Facts.  The judge acted very fairly and properly in the course of the applicant’s sentencing hearing in both revealing her state of mind and providing the applicant with an opportunity to obtain legal advice and give instructions on whether she would testify in support of her claim that 50% of the Ice was for her own consumption.  It was a matter between the applicant and her counsel and the applicant’s final decision was that she would not testify in support of her claim.

16.  Although the judge accepted that the applicant was a user of Ice it did not necessarily follow that she would have to accept the applicant’s claim.  In the absence of any testimony from the applicant the judge was perfectly entitled to conclude that on the evidence before her the bare assertion of the applicant’s counsel was not credible and was not substantiated. 

17.  The matters raised by the applicant in the document attached to her Form XI could have been advanced by her had she chosen to testify at trial.  Her decision not to testify was a decision made after consulting her legal representative and no complaint was made about the competence of the advice that she received.  The appeal process is not an opportunity for the applicant to revisit her decision not to testify simply because, having made that decision, she is dissatisfied with the sentencing outcome.  I see no basis for the Court of Appeal to receive from the applicant now any explanation as to the circumstances of her possession of these drugs which she could have placed before the trial judge.

Conclusion

18.  For these reasons I was not persuaded that there was any reasonably arguable ground of appeal arising from any of the complaints or submissions of the applicant and I, therefore, refused the applicant leave to appeal against her sentence.