HKSAR v. AKTHAR MST POPY

HCMA 194/2018

[2018] HKCFI 1487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 194 OF 2018

(ON APPEAL FROM KCCC 110 OF 2018)

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JUDGMENT

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1.  The Appellant, an asylum-seeker in her late twenties and of previous good character, appeals against the sentence of 26 months’ imprisonment passed on her by a Magistrate on a charge, of which she was convicted after trial, of trafficking in dangerous drugs consisting of 4.36 grammes of ‘ecstasy’ which were found in a bag which she was carrying.

2.  Addressing the Magistrate in mitigation, the Appellant’s counsel at the trial: (i) submitted that the starting point for trafficking in over one gramme and up to 10 grammes of ecstasy was in the range of 2 to 4 years’ imprisonment; and (ii) accepted that the fact that a person who committed a serious crime was an asylum-seeker is an aggravating factor.

3.  By reference to the sentencing guidelines in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, the Magistrate adopted a starting point of 24 months’ imprisonment.  Having regard to what was said in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, she enhanced the sentence to 26 months’ imprisonment because the Appellant was an asylum- seeker. She found no mitigation by which to reduce the sentence.

4.  Is the sentence too severe?  In my judgment, it is not.  There is no proper basis on which to interfere with it.

5.  Accordingly, the appeal is dismissed.