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CACC406/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO.406 OF 2014
(ON APPEAL FROM HCCC 47 OF 2014)
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BETWEEN
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HKSAR |
Respondent |
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and |
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CHEUNG KA YAN (張嘉欣) |
Defendant
(Applicant) |
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| Before: Hon Chu JA in Chambers |
| Date of Hearing: 14 January 2014 |
| Date of Decision: 14 January 2014 |
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DECISION
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1. This is the applicant’s application for bail pending appeal.
2. The applicant was charged with one count of trafficking in a dangerous drug, namely, 26.92 grammes of ICE, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. On 30 October 2014, the applicant pleaded guilty before Toh J (“the Judge”) to the offence of possession of a dangerous drug. The plea was accepted by the prosecution and the applicant was convicted accordingly. On 20 November 2014, she was sentenced to 2 year and 4 months’ imprisonment.
3. On 24 November 2014, the applicant lodged an application for leave to appeal against sentence. The application has not yet been listed for hearing.
4. On 4 December 2014, the applicant applied for bail pending appeal. She has also applied for legal aid and the result is pending.
5. The applicant has been in custody since her arrest. Her expected date of discharge from prison is 23 April 2015.
6. The legal principles relevant to bail pending appeal are well settled. Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard: HKSAR v. Lau Man Kin [2010] 1 HKLRD 336. Where the “time” basis is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.
7. The respondent does not oppose the application. Ms Lai who appears for the respondent submits that prima facie the applicant’s appeal is likely to succeed and there is a risk that the sentence or a substantial part of it would have been served by the time the appeal is heard.
8. The facts as admitted by the applicant show that in the early hours of 3 October 2013, police officers carried out an anti-dangerous drug operation at the applicant’s residence. The applicant was seen sitting on a sofa holding a handbag. There was another person on the premises. Inside the applicant’s handbag was a transparent resealable bag, containing the drug in question. On a coffee table opposite the sofa, police officer found a total of 45 smaller resealable plastic bags and a calculator. The market value of the drug in question was about HK$18,908.
9. The applicant is aged 26, married, and has a young daughter aged six. She and her husband have since 2011 been living apart and the daughter is being looked after by her parent-in-law. She worked as a manicurist at her residence with a monthly income of $12,000 to $15,000. The applicant has a clear record. Before passing sentence, the Judge had called for probation officer’s report and DATC report, which reveals that the applicant is no longer drug dependent.
10. Having considered the authorities (HKSAR v. Wan Sheung Sum [2000] 1 HKLRD 405, HKSAR v. Mok Cho Tik [2001] 1 HKC 261 and HKSAR v. Cheng Kong Sang CACC 371/2008[1]), the Judge adopted a starting point of 2 years 6 months and enhanced it by one year to take into account the latent risk factor. Allowing a one-third discount for the guilty plea, the Judge sentenced the applicant to 2 years and 4 months’ imprisonment.
11. The applicant’s application for leave to appeal is on the basis that the sentence is manifestly excessive.
12. I have considered the authorities cited by counsel on fiat at the trial below, in particular, HKSAR v. Mok Cho Tik [2001] 1 HKC 261 and the cases cited in the judgment of Stock JA and also HKSAR v. Minney (2013) 16 HKCFAR 26. I have also considered the submissions and the further authorities advanced by Ms Lai (HKSAR v. Lai Kam Sang CACC 578/1998; HKSAR v. Chew Sik Pok CACC 502/1998; and HKSAR v. Wong Kam Kai CACC 214/2010).
13. The starting point for simple possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession is 12 to 18 months. Although the quantity of the drug in question is substantial, the applicant has a clear record and there is no aggravating feature in the case. Further the Judge had separately made an enhancement on account of the latent risk factor. Ms Lai indicates that the respondent does not seek to uphold the 2½ years starting point adopted by the Judge. She submits that 18 months will be an appropriate starting point and the enhancement for the latent risk factor should be no more than 12 months. In my view, Ms Lai’s concession is both proper and fair.
14. Given her expected date of discharge is in April 2015, it is very probable that the applicant would have completed her sentence by the time her application for leave to appeal is heard. In the circumstances, it is just that the applicant be admitted to bail pending her appeal. The application is therefore granted.
15. The applicant is granted bail pending appeal on the following conditions:
(1) Cash bail of HK$ 20,000;
(2) Not to leave Hong Kong; and
(3) Surrender all travel documents within 48 hours of being released from custody.
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(Carlye Chu) |
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Justice of Appeal |
Ms Anna YK Lai SADPP,of the Department of Justice, for the respondent.
The applicant, unrepresented, appeared in person.
[1] Erroneously reported as HKSAR v. Chong Heung Sang in [2010] HKCU 2450
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