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CACC 133/2020
[2021] HKCA 1124
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 133 OF 2020
(ON APPEAL FROM HCCC NO 64 OF 2020)
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HKSAR |
Respondent |
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v |
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SIT YAN YI (薛欣怡) |
Applicant |
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| Before: |
Hon Zervos JA in Court |
| Date of Hearing: |
3 August 2021 |
| Date of Judgment: |
3 August 2021 |
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J U D G M E N T
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Introduction
1. On 12 August 2020, the applicant was one of two defendants who appeared before Campbell-Moffat J (“the judge”) for sentence on an indictment that contained three counts.
2. The applicant, whose trial designation was D1, pleaded guilty to one count of trafficking in a dangerous drug, namely 24.50 grammes of a crystalline solid containing 24.20 grammes of methamphetamine hydrochloride (commonly known as “Ice”) (Count 1), and one count of possession of dangerous drugs, namely 0.28 gramme of cannabis in herbal form and 0.05 gramme of nimetazepam (Count 2). The other defendant, D2, pleaded guilty to a separate count of possession of dangerous drugs, namely 0.52 gramme of a solid containing 0.41 gramme of cocaine and 0.08 gramme of a crystalline solid containing methamphetamine hydrochloride (Count 3). The judge sentenced the applicant to a total term of 5 years and 8 months’ imprisonment.
3. The applicant applies for leave to appeal against her sentence. The basis of the application is set out in the perfected grounds of appeal filed on her behalf by counsel. There are three grounds of appeal which make the following complaints. In the first ground, it is complained that the starting point adopted by the judge for Count 1 of 8 years’ imprisonment was excessive and not in accordance with the applicable sentencing guidelines. The same complaint is made about the starting points adopted by the judge of 3 months’ imprisonment in respect of the two drugs particularised in Count 2. In the second ground, it is complained that the judge failed to consider passing concurrent sentences for Counts 1 and 2 as they arose from the same incident. In the third ground, it is complained that the judge failed to take into account the totality principle, given that the quantity of drugs in Count 2 were minimal and did not materially add to the criminality involved in Count 1.
The admitted facts
4. At 5:25 pm on 2 December 2018, the applicant checked into a hotel room which had been pre-paid and booked under her name. She was provided with the room key and together with D2 went to the room. In the afternoon on the next day, as the applicant had not checked out after the required check-out time, the hotel staff entered the room with a master key. They found inside the room cigarette buds and aluminium foil. The safe in the room was unlocked and found inside was a quantity of suspected dangerous drugs. The hotel staff then locked the safe with a new password and reported the matter to the police.
5. At 4:10 pm on the same day, the applicant and D2 approached hotel staff on the floor of the room and asked them to open the door to the room. Hotel staff activated the applicant’s room key and alerted the police who were nearby. The applicant and D2 returned to the room where they were arrested by the police.
6. A search of the applicant’s rucksack found one foil pack, containing nine tablets of nimetazepam. On being cautioned for the offence of simple possession, the applicant said she came up to look for a person called “Roy”, who had given the nimetazepam tablets to her. Upon unlocking the safe the police found (i) a bag of Ice, as particularised in Count 1; (ii) a plastic packet containing cannabis in herbal form, which together with the foil pack of nimetazepam tablets, as particularised in Count 2; (iii) two glass devices for consuming dangerous drugs; (iv) a plastic bag containing traces of cocaine; (v) eight empty plastic bags; (vi) a digital scale; and (vii) five plastic straws.
7. After discovery of the additional drugs and related items the applicant was further cautioned, and in response she said it was “Roy” who asked her to come to the room to consume Ice.
8. The CCTV footage of the hotel showed that apart from the applicant and D2 entering and leaving the room at various times, two unknown men separately visited the room on 2 and 3 December 2018, staying in the room for a duration of between 2 minutes and 21 minutes respectively. The applicant’s DNA was found on the plastic bag containing the Ice inside the safe.
9. It was an agreed fact that the estimated value of the Ice found was $11,000.
The applicant’s mitigation
10. The applicant was 31 years of age at the time of sentence. The judge was informed that the applicant got married when she was 21 years of age but had since divorced. She had a 10-year-old son, whom she cared for as well as her mother. After leaving school, the applicant had steady employment but after she got divorced she worked as a manageress of a nightclub where she mixed with bad company and started taking drugs. It was noted that upon her arrest she had tested positive for amphetamine.[1]
11. It was submitted on her behalf that in respect of the offence she was merely helping “Roy” to traffic the drugs as he would supply her with drugs. It was also submitted that the applicant was remorseful and while in custody had taken up courses in marketing and economic accounting. Letters in support of the applicant were submitted to the judge for her consideration.[2]
12. The applicant had two previous convictions for gambling in 2018 for which she was fined.[3]
The reasons for sentence
13. In her sentencing remarks, the judge recited the facts and extensively reviewed the applicant’s background and mitigation. Applying the sentencing guidelines laid out in HKSAR ν Tam Yi Chun,[4] the judge adopted a starting point of 8 years’ imprisonment for the 24.20 grammes of Ice narcotic in Count 1, which she reduced by one third for the applicant’s guilty plea to 5 years and 4 months’ imprisonment.[5]
14. In respect of Count 2, the judge noted that she was concerned with possession of dangerous drugs.[6] She said the quantities of the two drugs were insignificant and accepted that they were for the applicant’s own consumption. She also indicated that she would not enhance the sentence for any latent risk factor. She adopted a starting point of 3 months’ imprisonment for each drug, which she added together and then reduced by one-third for the applicant’s guilty plea to 4 months’ imprisonment.[7]
15. The judge treated the sentences on each count consecutively, which resulted in a total sentence of 5 years and 8 months’ imprisonment.[8]
Ground 1: The starting points adopted by the judge
16. Applying the sentencing guidelines in HKSAR ν Tam Yi Chun,[9] the judge adopted a starting point of 8 years’ imprisonment for the quantity of Ice narcotic in Count 1. According to the guideline band, trafficking in between 10 and 70 grammes of Ice would be between 7 and 11 years’ imprisonment. On a strict arithmetic calculation, trafficking in 24.20 grammes of Ice narcotic would result in a starting point of 7 years and 11.36 months’ imprisonment.
17. The respondent submits that given the starting point is only slightly above the arithmetic calculation it does not warrant interference by the Court of Appeal. See HKSAR v Zaripov Eduard.[10] This is reinforced in that the role of the applicant was not a mere courier or storekeeper, and hence her culpability was not at the lowest level of the trafficking hierarchy. See HKSAR v Herry Jane Yusuph.[11]
18. The applicant checked into a hotel room where the Ice was found and as submitted on her behalf she helped “Roy” traffic the drugs because he supplied drugs to her.[12] Given the applicant’s role, the respondent submits that the judge was entitled to enhance the starting point to reflect the applicant’s greater culpability. It appears that the judge also took the view that the applicant played a greater role in the case as noted in her sentencing remarks.[13]
19. As for Count 2, the respondent submits that there is no sentencing guidelines for simple possession of herbal cannabis and nimetazepam. In HKSAR v Mok Cho Tik[14] the Court of Appeal held:
“... We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrate from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie …”[15]
20. The respondent accepts that the sentence of three months’ imprisonment for each drug in Count 2 may be manifestly excessive when referring to the relevant sentencing guidelines: HKSAR v Castano Arango Jose Reinel[16] (possession of herbal cannabis); and HKSAR v So Kin Fai[17] (possession of minute quantity of nimetazepam).
Grounds 2 and 3: the totality of the sentence
21. It is convenient to deal with these two grounds together as they are essentially concerned with the totality of the sentence.
22. There is an issue as to the appropriateness of the total sentence for the possession count and the combination of the two sentences for the trafficking count and the possession count. See HKSAR v Castano Arango Jose Reinel;[18] HKSAR v Or Wai Tong;[19] and HKSAR v Ip Yuet Ho.[20]
23. The respondent argues that the ultimate sentence, however it was arrived at, was relevant to the question whether the sentence was manifestly excessive or wrong in principle for the applicant’s overall culpability. See HKSAR v Cheng Pak Kit.[21] The respondent submits that the conduct of the applicant justified a higher starting point of 8 years and 6 months’ imprisonment to reflect her greater culpability and after a one third discount for her guilty plea, the sentence on Count 1 should be 5 years and 8 months’ imprisonment. Accordingly, if this sentence was to run concurrently with the sentence of 4 months’ imprisonment on Count 2, the total sentence of 5 years and 8 months’ imprisonment would remain the same.
Discussion
24. I do not find the applicant’s complaint about the starting point adopted by the judge for the trafficking count to be reasonably arguable. The starting point was within the applicable sentencing band for trafficking in Ice narcotic and the difference with the arithmetic calculation of the starting point was only slightly greater and may have justified even more because of the role and culpability of the applicant in the offence. Whether the applicant should have received a starting point higher than the arithmetic calculation, as submitted by the respondent, is a matter for argument.
25. There are two complaints that emerge from the grounds of appeal that I am satisfied are reasonably arguable. The first is the judge erred in the starting points she adopted for each drug in the possession count and in the sentence she passed for that count. It was accepted the quantity of the two drugs involved was minimal and for the applicant’s own consumption. It is arguable that the starting point adopted by the judge for each drug in the possession count was excessive and that she also erred in fusing the two sentences together without applying the totality principle. The second is the judge erred in ordering the sentence for the possession count be served consecutively to that for the trafficking count. Although logically the two offences can be said to be separate, it is arguable that as a matter of totality, it was wrong to treat the sentences totally consecutively. If the drugs, the subject of the possession count, had been part of the drugs in the trafficking count, it is arguable that they would have made very little difference to the sentence on the trafficking count. See HKSAR v Ip Yuet Ho.[22]
Conclusion
26. For the foregoing reasons, I grant the applicant leave to appeal against her sentence in respect of the grounds that I have found to be reasonably arguable.
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(Kevin Zervos) |
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Justice of Appeal |
Mr Andrew Cheng, SPP, of the Department of Justice, for the respondent
Ms Ho Yuen Han Anna, instructed by Simon Si & Co, Solicitors, assigned by the Director of Legal Aid, for the applicant
[1] Appeal Bundle (AB), 12K-13B.
[2] AB, 13C-N.
[3] AB, 33.
[4] HKSAR ν Tam Yi Chun [2014] 3 HKLRD 691.
[5] AB, 9B-E.
[6] AB, 9F.
[7] AB, 9F-I.
[8] AB, 9J.
[9] HKSAR ν Tam Yi Chun [2014] 3 HKLRD 691.
[10] HKSAR v Zaripov Eduard [2019] HKCA 345, at [31].
[11] HKSAR v Herry Jane Yusuph [2020] HKCA 974, at [53]-[58].
[12] AB, 13C-D.
[13] AB, 10F-I.
[14] HKSAR v Mok Cho Tik [2001] 1 HKC 261.
[15] Ibid., 267B-D.
[16] HKSAR v Castano Arango Jose Reinel, unrep., CACC 174/2014,18 December 2014, at [20]-[21].
[17] HKSAR v So Kin Fai, unrep., CACC 475/2007, 29 October 2008.
[18] HKSAR v Castano Arango Jose Reinel, unrep., CACC 174/2014,18 December 2014.
[19] HKSAR v Or Wai Tong, unrep., CACC 250/2009, 3 December 2009.
[20] HKSAR v Ip Yuet Ho [2008] 6 HKC 35.
[21] HKSAR v Cheng Pak Kit [2020] HKCA 555, at [29].
[22] HKSAR v Ip Yuet Ho [2008] 6 HKC 35.
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