HKSAR v. LEE LAI MING

CACC 290/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 290 OF 2000

(ON APPEAL FROM HCCC 405 OF 1999)

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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. On 4 September 1999 police officers saw the applicant and a man named Leung walking out from a room in Lung On House, Lower Wong Tai Sin Estate, Kowloon, premises of which the applicant was the tenant. They stopped and searched Leung and the applicant and from him they seized a quantity of methamphetamine hydrochloride. He was arrested and has subsequently been indicted separately for trafficking in that quantity of drugs. The applicant told the police that she lived in Room 1906 in that building and she took them there and they conducted a search. There she took a paper box from the upper bunk bed and gave it to the police. There were found six plastic bags containing 23.15 grammes of crystalline solid with 22.75 grammes of methamphetamine hydrochloride.

2. She was arrested and cautioned and she said that the drug that had then been found was for her own consumption. Later, inside the same bedroom, the police found a plastic bag containing a much larger quantity of the drug ice, namely, 465.18 grammes of a crystalline solid containing 455.83 grammes of methamphetamine hydrochloride.

3. The applicant admitted at trial, upon her plea of guilty, to being an occupier of the premises and permitting it to be used by Leung for storing the paper bag with the larger quantity of "ice". She is aged 25, and has a clear record.

4. There was laid in the High Court an indictment containing three counts against the applicant: the first of trafficking is the larger quantity of "ice"; the second charging her with possession of 22.75 grammes of the drug; and the third charging her with being an occupier of the premises permitting them to be used for the storage of the larger quantity. She pleaded guilty to the second and third counts. The maximum term of imprisonment permitted by law for the offence under the third count is 15 years' imprisonment. The trial judge took a starting point of nine years and, taking into account the plea of guilty as well as the fact of her clear record and the submissions made on her behalf, he sentenced her upon that count to a term of six years' imprisonment. Then for the possession offence, he took a starting point of three years' imprisonment, reduced that to one of two years and ordered it to run concurrently with the term of six years making a total of six years.

5. The applicant today points out that she has co-operated with the police, gave details to them, has been willing to be a prosecution witness in the case against Leung and provided statements for that purpose. She also prays in aid current family circumstances, including the fact that her father is unwell.

6. As for co-operation with the prosecution, this was a matter which was drawn to the attention of the sentencing judge, and he referred to it, and he accepted it. But it is clear that he did not reduce the sentence on account of her co-operation, since a one-third reduction and no more was given. That one-third was in any event due on account of the plea alone.

7. As for the promise to give evidence, about which the trial judge was informed, he appeared to have given no credit for that, which is not surprising because he no doubt had in mind that only a promise had been made, but had not yet been fulfilled.

8. In the event the man Leung was not prosecuted upon that indictment. He was only prosecuted for the drugs which had been found upon his person when he was arrested, and not for the drugs in the flat.

9. Having listened to the applicant and having had the advantage of considerable assistance, as usual, from Mr Zervos, for the respondent, about the statements which the applicant gave and the co-operation she gave to the police, we think that some, albeit a small amount of, further credit should be given to this applicant. She can pray little in aid in terms of her offer to give evidence because not only did she not do so, but a view was taken that because of conflicting statements given by her, her evidence would be worth little in a jury's eyes at trial. She has given us some reason for the conflicts thus found, and it may well be that what she tells us is correct; but those are the facts nonetheless. We have also been told by Mr Zervos that she did give some information to the police, and we have made some assessment of its worth.

10. In all the circumstances, this was an applicant who was very co-operative. The judge purported to give her credit for that co-operation but in fact none was given. We think that a three-month deduction from the sentence on the third count was warranted and accordingly, we give leave to the applicant to appeal against sentence. We treat this as the hearing of the appeal and we reduce the sentence in relation to count 3 from a total of six years' imprisonment to one of five years and nine months.

11. We turn to the second count. The judge took a starting point of three years. We do not know why he did so. He ought, in our judgment, to have taken a starting point of 18 months' imprisonment, and then addressed the question whether there was a latent risk factor which warranted enhancement. If he did engage upon such an exercise, that is not obvious from his sentencing remarks. With this quantity of drugs and the circumstances of the case as a whole, we think that there was a latent risk factor which merited a starting point of two and a half years' imprisonment which with the mitigating factors, should have resulted in a term of one year eight months' imprisonment.

12. Accordingly we allow the application for leave to appeal against sentence, and treat this as the hearing of the appeal. In relation to the third count we substitute a term of five years and nine months' imprisonment. In relation to the second count we substitute to a term of one year and eight months' imprisonment. We order that term to run concurrently with the term of five years and nine months on the third count; making a total of five years and nine months' imprisonment.