HKSAR v. LAM WAN MAN, JANET

CACC 354/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 354 OF 2004

(ON APPEAL FROM HCCC NO. 98 OF 2004)

______________________

______________________

_______________

J U D G M E N T

_______________

Hon Woo VP (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence. 

2. The applicant was convicted on her own plea before Bokhary J on 30 July 2004 on a single count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The judge sentenced her to 5 years and 8 months of imprisonment.

3. The facts are relatively simple.  On 4 December 2003, while three police officers were laying an ambush in the vicinity of an Internet game centre in Mongkok, Kowloon, they found the applicant acting in a suspicious and nervous manner.  As a result, they conducted a body search on her and found a plastic bag at the waistband of her underpants at the back.  The bag was later found to contain two packets each containing a certain quantity of methamphetamine hydrochloride (commonly known as “Ice”) mixed with N,N-dimethylamphetamine.  The total quantity of the drugs came to 35.57 grammes of Ice and 27.67 grammes of the other substance.

4. The judge sentenced the applicant by paying regard only to the quantity of the Ice and was prepared not to make any upward revision for the other substance.  She gave the applicant a full discount of one-third for her guilty plea from the starting point of 8½ years’ imprisonment, which resulted in the sentence of 5 years and 8 months.

5. The applicant raises two grounds of appeal, namely,

(1)         The prosecution suddenly pointed out to the judge that the drug involved contained a new dangerous drug, so that the judge did not pass the sentence in accordance with the sentencing guidelines for the drug “Ice”; and

(2)         A full reduction was not given by the judge for the guilty plea, which has caused unfairness.

6. The two grounds are absolutely without substance, because they are contrary to the facts.  The judge only took the quantity of Ice, ie, 35.57 grammes of Ice, in adopting the starting point of 8½ years.  In the sentencing guideline laid down by AG v Ching Kwok-hung [1991] 2 HKLR 125, the tariff for a quantity of Ice between 10 and 70 grammes is 7 to 10 years’ imprisonment.  We do not see anything wrong with the 8½ years’ imprisonment taken as the starting point for the quantity of Ice involved in the present case. 

7. There was no enhancement of sentence because of what is now alleged by the applicant to be a new dangerous drug.  Indeed, the judge did not increase the sentence for the N,N-dimethylamphetamine although the quantity of that substance amounted to 27.67 grammes.  Apparently, the judge accepted what was disclosed in the summary of facts prepared by the prosecution, which the applicant admitted.  The summary described that substance as a central nervous stimulant with no known medical use.  The substance is produced in clandestine laboratories and sold on street as fake Ice in some parts of the world.  It is also known as an adulterant in methamphetamine or ecstasy.  However, the substance is much less dangerous than Ice : three times less potent in neurotoxic and lethal effects, 5 to 10 fold weaker in behavioural effects, and it has also less toxic effect on the brain and addictive dependence.

8. The judge was therefore fully entitled not to take into account the quantity of the other substance to make any upward adjustment of the starting point adopted by her.

9. 8½ years are equal to 102 months.  A reduction of one-third from 102 months will give a figure of 68 months, which is equivalent to 5 years and 8 months.  This is the sentence that was passed by the judge on the applicant.  A full discount of one-third was given.  The second ground of appeal is therefore wrong.

10. The application must be dismissed.