HKSAR v. HOANG THI THU HUYEN

CACC 195/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 195 OF 2000

(ON APPEAL FROM DCCC 147 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 2 May 2000, the Applicant pleaded guilty before Judge Wilson to a charge of trafficking in a mixture containing 47.24 grammes of heroin hydrochloride. She was sentenced on 16 May 2000 to four years' imprisonment against which she now seeks leave to appeal.

2. The Applicant is Vietnamese by birth. She came to Hong Kong in 1989. Since that time she has acquired five convictions, although none of these are for drug-related offences. In her homemade grounds of appeal, she has complained that the sentence was too heavy and that leniency now ought to be shown to her because her mother is seriously ill in Vietnam. Those grounds she has repeated in court today and nothing we say will detract from the natural sympathy anyone would feel for a person in the Applicant's position knowing that her mother is very ill.

3. The Applicant was arrested on 24 December 1999 in Nathan Road. Her activities had given rise to suspicion that she was up to no good. On arrest she was found in possession of the drugs referred to in the charge which were packaged in a variety of plastic bags. The Applicant immediately admitted that she was a courier who worked on behalf of others.

4. A report from the Drug Addiction Treatment Centre stated that because the Applicant was "no longer a drug dependant", she was not suitable for admission. The judge, having taken into account the sad background of the Applicant, imposed a sentence for this offence which he expressed in the following way:

"... defence counsel also urges me to take into account the totality principle, insofar as the defendant has just commenced a sentence of imprisonment for (theft).

For the present offence I select from the guidelines a starting point of 7 years and discount that by one-third for the plea of guilty, leading to a result of 4 years and 8 months. I discount that by a further 8 months in accordance with the totality principle, and the result I impose 4 years' imprisonment, that sentence to be consecutive to the sentence at present being served."

5. It is quite apparent from the dates which have been supplied to us by Ms Louisa Lai, on behalf of the Respondent, that the present offence was committed whilst on bail for a theft offence which had been committed on 13 September 1999. We find it very difficult to see why totality played any part at all in the sentencing exercise undertaken by the judge. The present offence was entirely separate to the other matter and was, in any event, committed while the Applicant was on bail. In such circumstances, almost inevitably the sentence for this offence should have been ordered to run consecutively. If the overall effect produced a sentence which was considered to be too long then a part of the sentence could have been ordered to run concurrently. All that we need to say is that the Applicant is remarkably fortunate to have had the benefit of a somewhat unusual approach taken by the judge.

6. The application is dismissed.