HKSAR v. CHIU YUK YIN JACKIE

CACC 607/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 607 OF 1999

(ON APPEAL FROM DCCC 654/1999)

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J U D G M E N T

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

1. The applicant pleaded guilty before Judge Hawkes in the District Court to one count of trafficking in a dangerous drug and one count of being in possession of a dangerous drug. The charges read as follows:

"1st Charge

Statement of Offence

Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Particulars of Offence

CHIU Yuk-yin, Jackie and POON Siu-keung, on the 1st day of May, 1999 at the Customs Arrival Hall, Hong Kong International Airport, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 7,007 tablets containing a total of 512.16 grammes of 3, 4-methylenedioxymethamphetamine.

2nd Charge

Statement of Offence

Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

Particulars of Offence

CHIU Yuk-yin, Jackie and POON Siu-keung, on the 1st day of May, 1999 at Block A, 11/F., Yun Han Building, No. 182, Pratas Street, Shamshuipo, Kowloon, in Hong Kong, had in their possession a dangerous drug, namely 8.20 grammes of cannabis."

2. She was sentenced to 2 years 8 months on the first count and 2 months on the second and it was ordered that the sentences be served concurrently.

3. The applicant seeks leave to appeal out of time against these sentences.

4. The reason she gives for not having lodged the appeal timeously is that an immigration officer recently visited her in prison and informed her that as the sentence imposed upon her exceeded 2 years it was possible that an application would be made for her deportation at the expiration of her sentences. As a plea for mercy she sought leave to seek a reduction in her sentence so that she might avoid deportation.

5. This is not a valid reason to grant leave to proceed out of time.

6. A further factor which has to be weighed in the balance is the merit of the application.

7. On the agreed facts the applicant and her husband were searched at the airport after their arrival from Amsterdam. The ecstasy referred to in the first count was found in a concealed position on the applicant's person. A further search was conducted at her residence when the cannabis referred to in the second count was found.

8. The quantity of ecstasy brings it within the 4 - 8 years band referred to in HKSAR v LEE Tak-kwan [1998] 2 HKC 371. Notwithstanding the fact that the applicant was on the agreed facts importing the dangerous drugs for profit the Judge adopted his starting point at the bottom end of the range. He apparently did so on account of compelling personal considerations. He also made the sentence on the second count concurrent with the sentence on the first. It has to be said that these sentences were very merciful and there is no way that they could be described as being either manifestly excessive or wrong in principle. Even had we been disposed to grant leave to proceed out of time there is no chance at all that the application would be successful.

9. Leave is accordingly refused.