HKSAR v. CHAN SZE MAN, IBY

CACC 33/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 33 OF 2016

(ON APPEAL FROM HCCC NO. 146 OF 2015)

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J U D G M E N T

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1.  By way of a Notice (Form XI) filed on 3 February 2016, the applicant seeks leave to appeal against a sentence of 5 years’ imprisonment imposed by Deputy Judge Wilson Chan (“the judge”) on 28 January 2016 following her plea of guilty in the High Court to a single count of trafficking in dangerous drugs, namely 13.1 grammes of methamphetamine hydrochloride narcotic and 10.4 grammes of heroin hydrochloride narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.  The applicant was intercepted by a police officer outside Block 1, Po Tin Estate, Tuen Mun at about 1:30 am on 23 December 2014 and, upon search of her left hand which was tucked into her left trouser pocket, the following items were found:

(a)   One piece of white tissue, wrapping two transparent plastic bags containing a crystalline solid (the “First Item”); and

(b)   One piece of white tissue with the number “14” written on it, wrapping a transparent plastic bag containing a mixture, and another packet (consisting of plastic cellophane wrappings with adhesive tape) containing a mixture (the “Second Item”).

3.  The First Item was found to contain 13.6 grammes of a crystalline solid containing 13.1 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’), while the Second Item was found to contain in total 13.9 grammes of a mixture containing 10.4 grammes of heroin hydrochloride.  Both items formed the subject matter of the count on the Indictment.

4.  On being questioned about the nature of the above two items at the scene, the applicant replied that the First Item was “Chu Yuk（豬肉[1]）”, which upon clarification by the applicant meant ‘Ice’; while the Second Item was “4 Chai（四仔）”, which she said meant “No. 4 heroin”. The police officer further asked the applicant to whom these items belonged, to which she responded “I got them for selling to other people”.

5.  The applicant was then arrested and cautioned.  In answer to the caution, the applicant said that she had committed the offence because she had to support her family, and asked the police officer to give her a chance.  The police subsequently found and seized a number of items from her home, including (i) a pair of pliers; (ii) a plastic box; (iii) a stack of white plastic cellophane sheets; and (iv) a stack of transparent re-sealable plastic bags.

6.  During a subsequent video recorded interview at about 6 pm on the same day, other than admitting that the items seized at the scene were ‘Ice’ and heroin respectively, the applicant also revealed, inter alia, that:

(a)   She had bought the dangerous drugs in the Mongkok area from someone (the particulars of whom she did not wish to reveal), at a price she had forgotten;

(b)   She had to take care of her 3-year-old son and to look after her father-in-law, hence she thought of selling dangerous drugs to support her family.  However, she was not successful and was arrested by the police;

(c)    As for the exhibits seized from her home: (i) the pair of pliers was for breaking up the heroin; (ii) the plastic box was for storing plastic bags; and (iii) the plastic bags and plastic cellophane sheets were for packing the ‘Ice’ and heroin;

(d)   She was unemployed; and the cash HK$1,050 found on her was part of her allowance from Comprehensive Social Security Allowance (CSSA); and

(e)    She had had the habit of taking dangerous drugs for the past 10 years and normally consumed a total of about 1 gramme of drugs (consisting ‘Ice’ and heroin) per day.

7.  As at December 2014, the retail value of the ‘Ice’ seized was HK$5,943; and that of the heroin seized was HK$11,203.

Mitigation and reasons for sentence

8.  The judge noted that the applicant had had 12 previous appearances before the courts, 9 of them being directly related to dangerous drugs, including one in 1998 for trafficking in dangerous drugs, for which the applicant was sentenced to 12 months’ imprisonment.

9.  Counsel for the applicant in mitigation confirmed that the applicant would not be relying on self-consumption as a mitigating factor in view of what she had told the police under caution.  Instead, he highlighted the applicant’s background, namely that she had to support her (by then) 4-year-old son and her 78-year-old father-in-law, since her boyfriend (the father of her son) was in custody; and that she committed the offence because she was in financial difficulties.  A mitigating letter written by the applicant (dated 12 January 2016) was handed to the judge to demonstrate her remorse.  The applicant explained in her letter that she had been suffering from depression and an ulcer on her leg and was unable to work.

10.  Defence counsel, relying on the authority of HKSAR v Wong Kin Kau[2], submitted that a “combined” approach to the two drugs in question should be adopted, with his suggested calculation as follows:

(a)   For the 13.1 grammes of ‘Ice’ narcotic, the tariff was 7 to 11 years’ imprisonment for 10-70 grammes of ‘Ice’ under the relevant guidelines for ‘Ice’;

(b)   The 10.4 grammes of heroin narcotic fell within the band of 10-50 grammes, suggesting a sentence of 5 to 8 years’ imprisonment under the relevant guidelines for heroin; if 5 years’ imprisonment were to be taken as the starting point for 10.4 grammes of heroin, and was notionally converted into ‘Ice’, then it would equate to about 5 grammes of ‘Ice’; and

(c)    Adding the notional quantity of ‘Ice’ in (b) to the quantity of ‘Ice’ in (a) would amount to 18.1 grammes of ‘Ice’, for which the starting point under the relevant guidelines for ‘Ice’ should be about 8 years’ imprisonment.

11.  In sentencing, the judge noted that the present offence was committed after the revised guidelines in HKSAR v Tam Yi Chun[3]had been set down.  In respect of the 13.1 grammes of ‘Ice’, the judge considered that the appropriate starting point should be 7 years and 2 months’ imprisonment.

12.  Making an upward adjustment for the 10.4 grammes of heroin, as well as the aggravating feature that there were two kinds of drugs involved thus catering for a wider market, the judge adopted an overall starting point for all of the drugs concerned of 7½ years’ imprisonment after trial.  He then tested his proposed starting point against the “absurdity test”[4], the “conversion test”[5] and the “ratio test”[6] as discussed in HKSAR v Chan Yuk Leong[7], and concluded that the said starting point was appropriate to the circumstances of the present case.

13.  The judge gave a full one-third discount for the applicant’s guilty plea, which resulted in a final sentence of 5 years’ imprisonment.

Grounds of appeal

14.  Apart from her Form X1 notice, the applicant has filed no written submissions in support of her application.  However, before me today, she argues that following her arrest on 23 December 2014, she was recalled to a Drug Addiction Treatment Centre (DATC) for breach of the terms of an earlier order made on 16 May 2013, for a period of just under 4 months.  She asks me to reflect the fact that she has lost the opportunity of setting that almost 4-month period in custody in DATC against her period on remand in respect of her sentence for the present offence.  She also asks for a reduction in sentence so that she may return to look after her son sooner.

Respondent’s submissions

15.  Ms Denise Chan ADPP (Ag), on behalf of the respondent, submits that the sentence imposed was far from manifestly excessive.

16.  She points out that trafficking in 10-70 grammes of ‘Ice’ would attract a starting point of 7-11 years’ imprisonment under the guidelines in HKSAR v Tam Yi Chun; whereas trafficking in 10-50 grammes of heroin would attract a starting point of 5-8 years’ imprisonment under the guidelines set out in R v Lau Tak Ming.[8]

17.  She argues that the judge has correctly applied the “combined approach”, which the Court of Appeal in HKSAR v Wong Kin Kau said was appropriate when dealing with more than one kind of dangerous drug, viz.:

“...I add that I believe, often, it is the combined approach which is more likely to lead to the correct overall sentence.”[9]

18.  Ms Chan submits that the methodology was correctly followed by first considering the more serious drug, namely ‘Ice’, in order to set the starting point of 7 years and 2 months’ imprisonment; before then adding 4 months to that starting point for the second drug, namely heroin.  She further contends that the judge had correctly adopted the overall starting point after considering the disparities between the three rival tests in HKSAR v Chan Yuk Leong (namely, the “absurdity test”, the “conversion test” and the “ratio test”); that the judge was aware that trafficking in two or more types of drugs should be considered an aggravating factor; and that the applicant had a poor criminal record, which were mostly drug-related, including one previous conviction for trafficking in a dangerous drug.

19.  Ms Chan also stresses that the applicant was not a mere courier, since packaging paraphernalia was found at her home; and that she committed the present offence not long after her release from DATC.  She contends that there was no room for any further reduction of sentence and that the application for leave should be refused.

20.  As for the point about her 4-month recall to DATC, Ms Chan submits that the judge has already considered that matter and decided that it was a wholly separate matter, which should not influence his determination of the appropriate length of sentence for the present offence.  In any event, the sentence was lower than it might have been, and lower than the applicant’s own counsel at trial was contending for.

Consideration

21.  The overall starting point for sentence fell within the range which even the applicant’s counsel in the court below was promoting before the court: indeed, it was less than the figure that he was inviting from the judge.  As he recognised, the starting point could well have been higher.

22.  I can see no error in the judge’s approach to sentence.  Indeed, he was careful to test the correctness of his proposed starting point against each of the tests I have described.  Given that two types of potent dangerous drug were involved, that the applicant already had a previous conviction for trafficking in a dangerous drug and had recently been released from DATC, I cannot see any arguable grounds of appeal that the sentence was manifestly excessive.

23.  I have considered the matter of the applicant’s recall to DATC for almost 4 months and whether that period should be computed as part of the period of remand for the present offence.  However, that recall was in respect of the breach of a condition of her earlier release from DATC for wholly unrelated offences.  It is a separate matter.  Although I would not go so far as to say that such a recall to DATC in such circumstances can never affect the sentence for a subsequent offence under the principal of totality, I do not think it is reasonably arguable that it could affect the sentence in this particular case, which was already generous, given the aggravating features involved.  I also note that the applicant did not plead guilty at the magistrate’s court when she was committed to the High Court for trial on 2 April 2015.

24.  The application is accordingly refused.  The applicant is further advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.