HKSAR v. CHAN MAN TING

CACC 333/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 333 OF 2014

(ON APPEAL FROM HCCC NO. 265 OF 2014)

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J U D G M E N T

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1. The applicant pleaded guilty before Deputy Judge Tallentire in the Court of First Instance to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and was sentenced to 4½ years’ imprisonment. She now applies for leave to appeal against her sentence.

The facts

2. The applicant had been stopped and searched on a street in Shatin in the early hours of 23 January 2014 as a result of which dangerous drugs, the subject-matter of Count 1, namely 10.69 grammes of a crystalline solid containing 10.57 grammes of methamphetamine hydrochloride, were found in her handbag.  She was arrested and cautioned whereupon she acknowledged that she knew she was carrying a dangerous drug and explained that she was delivering it for someone else in order to make a quick $500.

3. She was taken back to her residence on Tsing Yi Island, where further dangerous drugs were found, namely 4.43 grammes of a crystalline solid containing 4.41 grammes of methamphetamine hydrochloride.  These formed the subject-matter of Count 2.  She was again arrested and under caution, the applicant explained that she intended to sell the drugs to other persons.

4. The total quantity of methamphetamine hydrochloride narcotic for sentencing purposes was 14.98 grammes, valued on the retail market at $6,456.

Mitigation

5. Apart from referring to her plea of guilty and certain personal matters of mitigation, counsel on the applicant’s behalf submitted that “about a quarter” of the dangerous drugs found in her premises (Count 2) were for her own consumption and that a urine test obtained from her during the remand period was consistent with her recent consumption of amphetamine.

The sentence

6. The appropriate starting point for the combined quantity of methamphetamine hydrochloride in the two counts would have warranted a starting point at the lower end of the range between 7 and 10 years’ imprisonment after trial, in accordance with the guidelines in respect of this particular dangerous drug, namely Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, as explained in HKSAR v Capitania Edwin F, also known as Capitania Edwin (Unrep) CACC 28/2004.

7. Accordingly, the Deputy Judge adopted an overall starting point of 7 years and 3 months’ imprisonment in respect of the total quantity of narcotic, which he discounted by 6 months, having accepted that the applicant would have used a small proportion of the dangerous drug in Count 2 for her own consumption.  He thus arrived at a sentence after trial of 6 years and 9 months’ imprisonment on Count 1, which he reduced by one third to reflect her guilty plea, resulting in a sentence of 4 years and 6 months’ imprisonment.  In respect of Count 2, he adopted a starting point of 3 years’ imprisonment, which he again reduced by one third for plea, making 2 years’ imprisonment.  The Deputy Judge then ordered both sentences to run concurrently.

The present application

8. The applicant today argues that the overall sentence was manifestly excessive and effectively repeats the mitigation which was advanced in the court below.

Consideration

9. The sentences passed on the individual counts and the overall sentence were entirely appropriate and within the relevant guidelines.  Furthermore, the Deputy Judge gave the applicant a deduction of 6 months from the overall starting point for the fact that she may have consumed some of the dangerous drugs found in her premises.  Although perhaps merciful given the small amount attributable to the applicant’s own consumption, which did not make any appreciable difference to the total quantity of methamphetamine hydrochloride narcotic for sentencing purposes, such reduction was within the sentencer’s discretion.

10. I appreciate, as Mr Daryanani has fairly pointed out, that the Deputy Judge appears to have had in mind the later adjustment of the tariff guideline for 10 to 70 grammes of methamphetamine hydrochloride, namely 7 to 11 years’ imprisonment, set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which was not yet decided at the time these offences took place.  As at 23 January 2014, the appropriate tariff guideline for the quantity with which I am concerned was that stated in Attorney General v Ching Kwok-hung, namely 7 to 10 years’ imprisonment.  However, I do not consider that this error affects the sentence in this case.  Given that the sentence was within the guidelines appropriate to such a case and within the Deputy Judge’s discretion, leave to appeal against sentence must be refused.

11. The applicant is duly advised of her right to renew her application to the Court of Appeal, and the consequences of so doing, which may include a direction for the loss of time spent in custody, if the Court comes to the conclusion that there was no justification for the renewal of her application.