HKSAR v. KWOK PUI LIN

HCMA 347/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 347 OF 2012

(ON APPEAL FROM KCCC NO 887 OF 2012)

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REASONS FOR JUDGMENT

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1. The appellant pleaded guilty to 1 count of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and 1 count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 which were Charges 1 and 2 respectively. She was sentenced to 2 months’ imprisonment for Charge 1 and 8 months’ imprisonment for Charge 2 and the sentences were to run concurrently. The appellant now appeals against the sentence.

2. After hearing the parties the Court dismisses the appeal.  Here are the reasons.

Facts Admitted

3. On 3 March 2012, inside the visitor room of the Lai Chi Kok Reception Centre (“The Centre”), the victim of Charge 1 put a plastic bag containing a notebook, a bottle of body lotion, a pack of batteries and 3 packs of snacks on the floor behind her when she put her belongings inside a locker.  When she turned around after locking the locker, she found the plastic bag and the items inside disappeared.  They were eventually found by the police inside the locker in the visitor room used by the appellant.

4. Inside Cheung Sha Wan Police Station the police found hidden in the underpants of the appellant:

(a)  a plastic packet with a packet inside containing 0.03 grammes of a powder containing midazolam, a plastic packet containing 0.03 grammes of a mixture containing heroin and midazolam and a plastic packet containing a piece of tinfoil with traces of heroin and methamphetamine;

(b)  a plastic packet containing a piece of tinfoil with traces of a mixture of heroin and midazolam;

(c)  5 pieces of tinfoil containing traces of heroin;

(d)  a piece of burnt tinfoil with traces of a powder containing heroin and midazolam.

Background and Criminal Record

5. The appellant is 30 years old and was 6-month pregnant at the time of her arrest.  She has an 11 year old daughter and a 3 year old son and she was visiting her boyfriend who is the father of the son when the offences occurred.  She has 14 previous convictions of which 6 were possession of a dangerous drug, 1 was dangerous drugs related and 5 were theft.

Drug Addiction Treatment Centre Report

6. The magistrate called for a Drug Addiction Treatment Centre (“DATC”) Report according to which the appellant was a drug addict.  She was, however, considered medically unfit for admission because of her pregnancy.

Mitigation

7. It was submitted in mitigation that the mother of the appellant suffered from cancer and the appellant wanted to go home to take care of her mother and her 2 children as well as her expected child.  She committed the offence of theft out of momentarily greed.  She had converted to christianly while in remand and had repented her sins to God.

8. She was receiving counselling for her drug addiction from a voluntary organisation and she wanted to continue with it. She was due to give birth in June 2012.  She asked for the shortest custodial sentence.

Grounds of Appeal

9. The appellant tenders to court mitigation letters of herself, her husband, her parents and her parents-in-law during her submission in the appeal.  It is stated in the letters that the appellant has given birth to a child and is genuinely remorseful.  They ask the court to reduce the appellant’s sentence.

10. The appellant submits that the sentence is excessive and as she is serving the sentence with her new born child, she asks for humanitarian treatment of the court to reduce her sentence.

Reasons for Sentence

11. The magistrate in sentencing the appellant took into account, and in my view correctly, the unsuitability of the appellant for admission into DATC, the amounts of dangerous drug involved, the different types of drugs found hidden in her underpants, and the long list of convictions of the appellant as well as the mitigation of the appellant including her pregnancy.

12. She further stated her reasons for sentence as follows:

“9. I took into account in principle a term of imprisonment between 6 and 12 months would be appropriate for a guilty plea for Charge 2. In fact, where this charge was concerned, I took into account the authority of So Ma Kwai [1993] 1 HKCLR at 92, where Silke VP, (sitting as an additional judge of the High Court) accepted that the normal range of sentencing for those with a history of multiple offences of possession of drugs should be in the range of 9 to 12 months. It is not disputed that the appellant in this matter has many previous convictions; indeed, 13 in all. All of them either related to drug offences or offences involving dishonesty. It cannot be disputed that she is therefore a multiple offender and falls into the bracket enunciated by Silke VP in the case to which I have just referred.”

13. In the view of this court the approach and reasoning of the magistrate cannot be faulted.

14. The magistrate pointed out that the appellant brazenly took the dangerous drugs and drug-taking paraphernalia into Lai Chi Kok Reception Centre.  Taking such illicit substances and paraphernalia into a correctional institution during the visit of an inmate there is no doubt an aggravating factor.  The magistrate could have increased the starting point of the sentence in Charge 2 on this ground.  Despite the complaint of the appellant that the sentence imposed on her is too severe, the magistrate has in fact been lenient to her.

15. The appellant committed the offence of theft in Charge 1 in Lai Chi Kok Reception Centre which was guarded by correctional officers.  This shows a blatant disregard of the law on the part of the appellant.  Bearing in mind that the appellant has a long list of similar convictions, the starting point of 3 months imprisonment adopted by the magistrate is not the least excessive.

16. The magistrate correctly took the totality principle into account and ordered the sentence of the 2 Charges to run concurrently.

17. The court is of the view that the sentence imposed on the appellant is correct in principle and is not manifestly excessive.

18. The court is also of the view that the sentence should not be reduced on humanitarian ground of the appellant having given birth and the baby being forced to serve the sentence with her.  As pointed out by the magistrate, the appellant had tragically continued to consume dangerous drugs even though she had became pregnant, showing that she had no insight into her addiction nor the determination or willpower to quit her drug habit.

19. There is a strong likelihood that the appellant will relapse into taking dangerous drugs again on her release from prison. While in prison the appellant will surely stay drug-free and there are also correctional officers helping her to look after the new born child.  This is obviously in the best interests of the appellant and her child.

20. Allowing the sentence of the appellant to stand is the most humane treatment the appellant and her child can receive.  The plea of the appellant for a reduction in sentence on humanitarian ground must fail.

21. The appeal against sentence of the appellant is dismissed and the sentence is to stand.