HKSAR v. CHENG LI LI

CACC 257/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 257 OF 2002

(ON APPEAL FROM HCCC NO. 95 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 This applicant seeks to revive an application for leave to appeal against sentence. She pleaded guilty in the Magistracy Court to two charges of trafficking in dangerous drugs and was committed to the High Court for sentence and appeared for that purpose on 23 May 2002 before Deputy High Court Judge McMahon.

2 On 9 November 2001 she was intercepted by police at a staircase in a building in Fa Yuen Street and in her handbag they found two plastic bags which contained 21.3 grammes of heroin. Charge 1 was that she was trafficking in that quantity. For this amount the judge sentenced her to a term of four years' imprisonment.

3 She was taken to her room in the same building and there the police found a newspaper containing fourteen bags with 149 grammes of heroin. This was charge 2, another charge of trafficking. When the applicant was interviewed later she said that she was in debt and sold drugs to make a living. On the second charge the judge sentenced her to six years and eight months' imprisonment, having taken a ten-year starting point for that offence and giving her credit in relation to both offences for her early plea of guilty.

4 As for totality, the judge ordered that the sentences should run concurrently save that four months of the sentence imposed on the first charge was ordered to run consecutively to the term imposed on the second, a total therefore of seven years' imprisonment. This represents, assuming a full one-third discount, a starting point on both offences of ten and a half years' imprisonment; which is a starting point one would expect for that quantity.

5 The applicant is not a person of previous good character. She has been convicted on two previous occasions of possession of dangerous drugs but not previously convicted for an offence of trafficking. The applicant filed a notice of application for leave to appeal against sentence on 6 June 2002 but abandoned her application by notice dated 6 November 2002 as a result of which her application stands dismissed.

6 By notice dated 4 March 2003 she seeks to resurrect her application. She says that she abandoned her application because legal aid having been refused she could not afford to employ counsel and that she was nervous and not prepared to attend court herself. Now, however, after careful consideration she has decided to appeal.

7 The circumstances she relates do not warrant treating her abandonment as a nullity, and her application to do so is refused. We would in any event add that there is no merit in her complaints about the sentence imposed. In so far as she feels aggrieved that one sentence was made to run partly concurrently to the other, that, as we have today explained to her, was merely the particular manner in which this judge dealt with two separate offences and then gave proper effect to the total quantity of drugs represented by the two charges.