HKSAR v. WAI ROXY

CACC 42/2015

CRIMINAL APPEAL NO 42 OF 2015

(ON APPEAL FROM HCCC 476 OF 2014)

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REASONS FOR JUDGMENT
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Hon Poon JA (giving the Reasons for Judgment of the Court) :

Introduction

1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 before a magistrate.  The magistrate then committed her to the Court of First Instance for sentence.  On 27 January 2015, after hearing mitigation, Barnes J sentenced the applicant to 10 years’ imprisonment.

2.  By a notice dated 3 February 2015, the applicant sought leave to appeal against sentence and applied for legal aid.  According to her homemade ground of appeal, she considered her sentence to be excessive. Her application for legal aid was refused on 24 March 2015.  On 21 May 2015, the applicant appeared before Cheung CJHC for application of leave to appeal against sentence.  The case was adjourned for two months for the applicant to seek private legal representation.  On 30 September 2015, the applicant appeared before Yeung VP for mention.  The applicant was warned that in the event of an unsuccessful appeal, the Court of Appeal might order loss of time against her.

3.  Eventually, the applicant appeared before this Court on 9 December 2015.  After hearing the parties, we refused the applicant’s application for leave to appeal against sentence.  These are the reasons for our judgment.

Admitted facts

4.  The charge stated that on 22 May 2014, outside Ka Kei House (Block B), Ka Tin Court, Shatin, NT, the applicant unlawfully trafficked in 1.99kg of a powder containing 1.64kg of ketamine.  The facts admitted by the applicant are summarised below.

5.  At about 5:35pm on 22 May 2014, the applicant was intercepted by the police at the location named in the charge.  The police found eight re-sealable plastic bags containing the drug in question in a plastic bag she carried.  Under caution, the applicant said that the drug was “K Chai” and that she was helping someone to bring it to her home to repack for a reward of $1,000.00 per day.

6.  The applicant’s residence was later searched.  A strip heater, an electronic scale, a plastic spoon, a pair of surgical gloves and one pack of re-sealable plastic bags were found in a wardrobe inside her bedroom.  Under caution, the applicant replied that these items “are for the purpose of ‘Fa’ K Chai”, that is, diluting the ketamine.  In a later video-recorded interview, the applicant gave more details of her involvement.  She said that when she was intercepted by the police, she had just picked up the drug from a rubbish bin.  She was about to take it home to wait for further instruction.  The paraphernalia found inside her bedroom was for packing dangerous drug.

Mitigation

7.  In mitigation, counsel for the applicant submitted that she committed the offence because of financial reason.  Counsel also said that the applicant tried to offer assistance to the authorities but that was not fruitful, and that the applicant had wanted a lawyer to be present when she offered some assistance but “nothing came of it”.

Reasons for sentence

8.  The learned Judge referred to SJ v Hii Siew Cheng [2009] 1 HKLRD which laid down the sentencing guidelines for trafficking in over 1kg of ketamine to be 14 years upward.  She further cited HKSAR v Sin Chung-kin [2013] 1 HKLRD 627 which held that trafficking up to 2kg of ketamine called for a starting point of 14 to 18 years.  Taking into account the quantity of the drug (1.64kg of ketamine) and all the circumstances of the case, the Judge adopted a starting point of 15 years’ imprisonment and reduced it by one third for the guilty plea.  She then sentenced the applicant to 10 years’ imprisonment.

Discussion

9.  The sentence imposed by the Judge falls within established sentencing guidelines.  The applicant’s role was more than a mere courier.  She admitted that she repacked the drug for reward.  The Judge could have adopted a higher starting point but she did not.  The sentence imposed was lenient indeed.

10.  The applicant said in her homemade ground of appeal that the sentence imposed by the Judge was excessive but without explaining why.  At the hearing before us, the applicant drew our attention to two unreported first instance Reasons for Sentence, namely, HCCC 305/2014, 19 September 2014, and HCCC 508/2014, 13 February 2015.  She said the facts are comparable to her case but the defendants in those cases received lesser sentences.

11.  In HCCC 305/2014, the defendant was a 17 years old girl with a clear record.  She was stopped and searched by the police on a train from Fanling Town Centre to Tai Po and was found to be in possession of 2.34 kilogrammes of a powder containing 1.86 kilogrammes of ketamine.  The estimated street value of the drugs was about HK$286,740.00.  The defendant pleaded guilty to the charge before a magistrate and was committed to the Court of First Instance for sentence.  Toh J noted that the starting point would be in the region of 15 to 16 years’ imprisonment but she adopted 14 years instead after taking into account the fact that she was a first offender.  Giving the defendant a one third discount on her plea, the Judge imposed a sentence of 9 years and 4 months’ imprisonment.

12.  In HCCC 508/2014, the defendant was about 16 at the time of offence with a clear record. When she alighted from a taxi, she was stopped and searched by the customs and excise officers who had tailed her for a while.  She was found to be in possession of 2.64 kilogrammes of a powder containing 1.64 kilogrammes of ketamine.  The estimated street value of the drugs was about HK$322,000.00.  A Pang J adopted 15 years imprisonment as the starting point.  After reducing it by one third on account of the plea, the Judge reduced it by one more year to reflect on the defendant’s background and her determination to mend her ways. The final sentence imposed was 9 years’ imprisonment.

13.  In our view, the above cases do not really assist the applicant.  The fact that in those cases Toh J had departed from the usual sentence guidelines and A Pang J had given an additional one year discount does not necessarily mean that the applicant is entitled to similar treatment.  Although the defendants in those cases and the applicant are all young females, the defendants there were considerably younger than her at the time of offence.  One was 17, the other less than 16 whereas the applicant was almost 21 when she committed the present offence.  Although the quantity of drugs involved in those cases was comparable or even identical to the present, the role played by the applicant is more serious than the other two defendants.  They were mere couriers whereas the defendant admitted that she repacked drugs for reward, which was confirmed by the presence of the paraphernalia found inside her bedroom.

14.  As to the applicant’s assistance to the authorities, the respondent accepted that she had given two non-prejudicial statements to the police after she was sentenced on 27 January 2015.  There she simply alluded to other criminal activities without disclosing any particulars which might lead to any meaningful investigation.  The police did not regard it as of any assistance.  That being the case, her so-called assistance to the authorities does not entitle her to any discount of sentence.

15.  In further mitigation, which was advanced in a clear and composed manner, the applicant told us that she was truly remorseful and was willing to face the consequences of her crime.  With the full support of her family, she had made considerable effort to reform herself since imprisonment.  She produced a certificate issued by an English education institute in July 2015 confirming that she had completed an English course with excellent results.  She also produced a receipt issued by the Open University showing that she had enrolled with a course in management beginning in September 2015.  She hoped this Court could give her a chance.  All the applicant’s efforts of rehabilitation since sentence are commendable.  And we are sympathetic towards her on a human level.  But as a matter of law, they do not afford a ground for reducing the sentence imposed on her.

Conclusion

16.  In our view, the sentence imposed by the Judge on the applicant is neither manifestly excessive nor wrong in principle.  We cannot see any legal basis for us to disturb it.  We therefore refused her application for leave to appeal against sentence.