HKSAR v. FU SU FONG

CACC157/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2009

(ON APPEAL FROM HCCC NO. 283 OF 2008)

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JUDGMENT

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Hon Saw J giving judgment of the Court :

1. The applicant then aged 36 pleaded guilty on 14 April 2009 to three counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  She was sentenced to terms of imprisonment which totalled 7 years and 4 months.  This is her application for leave to appeal those sentences.

2. The applicant was one of two defendants charged with a number of drug trafficking offences.  The particulars of the charges to which she pleaded guilty can be summarized as follows :

Count 2

On 5 January 2008 she together with her co-accused trafficked in 0.84 grammes of cocaine.

Count 5

On 8 January 2008 inside Room B, 5^th floor, 1 Greeson Street, Wanchai, she trafficked in :

a.   3.53 grammes of cocaine;

b.  26 tablets of methylenedioxymethamphetamine;

c.  3 tablets of nimetazepam;

d.  3 grammes of ketamine;

e.   5.95 grammes of methamphetamine hydrycloride (ICE);

f.    1.04 grammes of cannabis resin;

g.  18.74 grammes of herbal cannabis;

plus a small quantity of plant material containing traces of cannabis.

Count 6

On 8 January 2008 inside Room C3, 6^th floor, Island Building Hennessy Road, Wanchai, she trafficked in :

a.   825 tablets of methylenedioxymethamphetamine;

b.  49.09 grammes of ketamine;

c.  36.92 grammes of methamphetamine hydrochloride (ICE);

d.  8.46 grammes of cocaine.

3. The summary of facts revealed that the applicant and her co-accused were apprehended by police officers who had mounted an undercover operation to identify drug traffickers in the Wanchai area.

4. One of those police officers posing as a drug user on 4 January 2008 purchased from the applicant’s co-accused a quantity of cocaine for $3,600.  

5. On 5 January 2008, the undercover police officer negotiated the purchase of another quantity of cocaine.  On that occasion the applicant herself delivered the drugs to him and received $2,400 from him (count 2).

6. On 8 January 2008 a further purchase of cocaine was negotiated.  The summary of facts reveals that the applicant’s co-accused delivered to the undercover police officer an even larger quantity of cocaine than that involved in the 1^st two counts.  The officer paid $16,000 for the drugs on that occasion.

7. The undercover operation then became overt.  The applicant’s co-accused was arrested.

8. Shortly after this the applicant was also arrested.  Her premises at Room B 5^th floor, 1 Greeson Street, Wanchai were searched.  The drugs referred to in count 5 were found.

9. The applicant and her co-accused were interviewed and as a result of information provided by the co-accused, they were both taken to the Island Building at 439-445 Hennessy Road, Causeway Bay where in Flat C on 6^th floor, the drugs referred to in count 6 were found.

10. It was an admitted fact that both premises described in counts 5 and 6 were rented by the applicant.

11. From a reading of the summary of facts, it is apparent that the applicant was the prime mover as between herself and her co-accused.  She was by any account a drug trafficker operating on a medium scale.  The total value of the drugs seized was in excess of $140,000.

12. In the course of mitigation, counsel for the applicant confirmed that she was herself a drug user and submitted that some part of those drugs found in the premises referred to in counts 5 and 6 were for her own consumption.

13. The judge’s approach to sentencing was as follows. 

14. The judge took individual starting points for sentence for counts 2, 5 and 6.  These were :

Count 2 — 2 years;

Count 5 — 6 years;

Count 6 — 10 years.

The starting point adopted in count 2 is appropriate see R v Lau Tak Ming and others [1990] 2 HKLR 370 and R v Chang Chen Liu Sa [1994] 3 HKC 685.

15. For count 5 the judge adopted a starting point for sentence of 6 years’ imprisonment.  In so doing he noted that amongst the drugs found there were :

(i) 5.95 grammes of methamphetamine hydrochloride (ICE);

(ii) 3 grammes of ketamine; and

(iii) 3.53 grammes of cocaine.  

Having regard to the then relevant guidelines for sentencing for those drugs we consider that the starting point for sentence was appropriate.

16. For count 6 the judge adopted a starting point for sentence of 10 years.  In so doing he noted that amongst the drugs found in those premises were :

(i) 825 tablets containing 91.92 grammes of methylenedioxy methamphetamine;

(ii) 49 grammes of ketamine;

(iii) 36.92 grammes of methamphetamine hydrochloride (ICE);

(iv) 8.46 grammes of cocaine.  

Given that the appropriate starting point for sentence for the methamphetamine hydrochloride would have been in excess of 8 years’ imprisonment.  The cocaine almost 5 years’ imprisonment and the ketamine 2 years’ imprisonment.   This was if anything a generous starting point. 

17. The judge then discounted each of these starting points by the usual one-third to reflect the applicant’s plea of guilty.  Thus the resultant sentences were before he considered totality :

(i) count 2 — 1 year 4 months’ imprisonment;

(ii) count 5 — 4 years’ imprisonment;

(iii) count 6 — 6 years’ 8 months’ imprisonment.

18. The total sentence imposed 7 years 4 months’ imprisonment was arrived at by ordering that 4 months of the sentence on count 5 be consecutive to count 6 and that 4 months of the sentence on count 2 be consecutive to counts 5 and 6.

19. The judge observed that taking the counts and the drugs involved as a whole an overall starting point for sentence of 11 years would have been justified.

The application

20. The sentences imposed were in all of the circumstances individually correct and the end result likewise appropriate.  The applicant today affirms what she had said in a letter to this court in 2009 namely that she is remorseful for her conduct and that she will not re-offend.  Be that as it may, there is nothing in the material before us or in the matters raised by the applicant to give us any cause for concern as to those sentences.  They are neither manifestly excessive or wrong in principle.

21. The application for leave to appeal is dismissed.