HKSAR v. WONG HAU LING

CACC 142/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 142 OF 2017

(ON APPEAL FROM HCCC NO 70 OF 2017)

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J U D G M E N T

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1.  The applicant was charged with unlawfully trafficking in a dangerous drug, namely 28.2 grammes of a crystalline solid containing 26.5 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having pleaded guilty to the charge in the magistrate’s court on 27 February 2017, she was duly committed for sentence to the High Court where, on 4 May 2017, she confirmed her plea of guilty before Madam Justice Toh (“the judge”) and was sentenced to 5 years’ imprisonment.

2.  By way of a Notice of application for leave to appeal (“Form XI”) filed on 18 May 2017, the applicant seeks leave to appeal against her sentence.

Facts admitted by the applicant

3.  On 30 May 2016, at 11:30 pm, the applicant was intercepted by police officers outside Mei Fung House, Mei Lam Estate, Shatin. She was carrying a bag, which was searched and found to contain a cigarette box containing what was subsequently confirmed to be a dangerous drug, the subject matter of the charge.

4.  The applicant was duly arrested and cautioned, whereupon she responded: “I’m strapped for cash so that I help someone to deliver the Ice drug to make some extra income.”

5.  Later, in a video-recorded interview, the applicant said inter alia that:

(a)  At about 10 pm that evening, on Tai Po Road, she had met an unknown male called “Ah Fei”, who offered her a delivery job for a promised reward of HK$200;

(b)  Ah Fei then gave her the Ice and asked her to deliver it to a taxi stand in Mei Lam Estate, Shatin.  He told her that someone would contact her by telephone to collect the dangerous drug; and

(c)  It was the first time she had trafficked in a dangerous drug.  She had not yet received the promised reward.

6.  The estimated retail value of the Ice at the time of seizure was HK$8,516.

Mitigation

7.  The applicant was 47 years of age at the time of her arrest, a drug addict and living on Comprehensive Social Security Assistance.  She was divorced in 2000 and suffered a mental illness in 2008, since when she had been unemployed.

8.  It was submitted on her behalf that the applicant was co‑operative upon, and after, her arrest.  Furthermore, she had worked hard to rehabilitate herself whilst in custody; in particular, she was learning English and attending religious classes.  She had also registered to be an organ donor.

Reasons for sentence

9.  The judge bore in mind the matters raised in mitigation on the applicant’s behalf but noted that the strongest factor in her favour was her plea of guilty.

10.  The judge referred to the sentencing guidelines set out by the Court of Appeal in HKSAR v Tam Yi Chun[1] and noted that trafficking in between 10 and 70 grammes of Ice would warrant a starting point of between 7 and 11 years’ imprisonment.  The judge considered that the appropriate starting point for trafficking in 26.5 grammes of Ice in the applicant’s case would be between 7½ and 8 years’ imprisonment.

11.  In the result, the judge adopted a starting point of 7½ years’ imprisonment, which she discounted by one‑third to reflect the applicant’s guilty plea, resulting in a sentence of 5 years’ imprisonment.

Grounds of appeal

12.  The applicant has not articulated any grounds of appeal in her Form XI Notice.  Nor has she filed any written submissions. Before me today, she has asked for an adjournment in order for her family (none of whom were present in court) to raise funds to instruct a private lawyer, her application for Legal Aid having been rejected.  I refused the application, in respect of which there had been no prior notice to the court.

Respondent’s submissions

13.  Ms Peggy Leung, on behalf of the respondent, submits that the applicant’s sentence was consistent with the relevant guidelines set out in Tam Yi Chun.  Accordingly, the sentence was unimpeachable.

14.  Ms Leung also refers me to the judgments in two Single Judge leave applications, namely HKSAR v Lau Yeuk-wa[2]and HKSAR v Puji Astutik[3]. These cases involved very similar quantities of Ice being trafficked locally. The amount of Ice involved in Lau Yeuk-wa was 26 grammes, while in Puji Astutik it was 20.4 grammes.  The respective sentencing courts had stipulated starting points of 8 years’ and 7½ years’ imprisonment.  In both cases, leave to appeal was refused by a Single Judge.

15.  Ms Leung submits that the sentence of 5 years’ imprisonment after plea of guilty could not be said to be manifestly excessive or wrong in principle.  The applicant could not in fact have complained if her sentence, when approached strictly arithmetically, had been 4 months longer.

Consideration

16.  As the judge correctly noted, the applicable guidelines set out in Tam Yi Chun would indicate a starting point of between 7 and 11 years’ imprisonment for trafficking in 10 to 70 grammes of Ice. Within that range, a starting point of precisely 8 years’ imprisonment would be appropriate where 25 grammes of Ice were being trafficked.  The quantity here was 26.5 grammes.  If one were to approach sentence in this case on a strictly arithmetical basis, the starting point would have been slightly more than 8 years’ imprisonment[4]. The range of between 7½ and 8 years’ imprisonment identified by the judge in fact fell below the arithmetical starting point, but was nevertheless within the judge’s discretion given the circumstances of the offence and the offender.

17.  Accordingly, I can see no reasonably arguable grounds of appeal that the starting point for sentence was either manifestly excessive or wrong in principle.

18.  The only mitigating factor of any weight was the applicant’s timely plea of guilty.  For that, she was entitled to a full one‑third discount from the starting point.  Her resulting sentence of 5 years’ imprisonment, therefore, properly reflected the mitigation advanced on her behalf.  Even though the resulting sentence was slightly below what it might have been when viewed strictly arithmetically, it was within the judge’s discretion.  I can see no reasonably arguable ground of appeal that the sentence of 5 years’ imprisonment after plea was either manifestly excessive or wrong in principle.

Conclusion

19.  The application must be refused.  The applicant is duly advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of her application.

[1] [2014] 3 HKLRD 691.

[2] (Unrep., CACC 416/2015).

[3] (Unrep., CACC 60/2017).

[4] 26.5 grammes of Ice should, on a strictly arithmetical approach, have attracted a starting point of 8 years and 1.2 months’ imprisonment (7 years + 16.5 x 48/60 months).