HKSAR v. LAI TSZ KI

CACC 104/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 104 OF 2015

(ON APPEAL FROM HCCC NO. 570 OF 2013)

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JUDGMENT
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1. On 10 March 2015, the applicant (the 1^st defendant on the Indictment) was sentenced by Zervos J to 3 years and 8 months’ imprisonment in respect of a joint count (with the 2^nd defendant) of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 2). Another count alleging simple possession of a small quantity of ketamine against the applicant alone was left on the file marked not to be proceeded with without leave of the court or the Court of Appeal (Count1).

Application for adjournment

2. The applicant initially applied for an adjournment of this hearing to obtain the services of the Hong Kong Bar Free Legal Service or, alternatively, a private lawyer, which application I refused. This offence was committed more than 2 years ago, as a result of which the applicant is now due for release on 11 January 2016. Were I to allow an adjournment for the Bar to make a decision whether or not to take up the case, Legal Aid having already been refused on the merits, so that this leave application would not come back before me until sometime in the Autumn, resulting in a hearing before the Court of Appeal (should the applicant wish to pursue her appeal) late this year or early next year, the applicant would be very close to finishing her sentence, if she had not already completed it. That is in no one’s interests. On the other hand, my decision today would not prevent the applicant from obtaining legal representation for her appeal to the Court of Appeal, should she wish to pursue it.

The facts of the case

3. The quantity of dangerous drugs in Count 2 was 210grammes of a powder containing 160 grammes of ketamine. The facts giving rise to the charge were that in the evening of 6 June 2013, the applicant and the 2^nd defendant were observed by customs officers seated in a vehicle at a petrol station in Kowloon Bay, Kowloon. The 2^nddefendant was the driver. The applicant alighted from the passenger seat of the vehicle and went into the toilet of the petrol station. As she emerged from the toilet, she was intercepted by customs officers and the drugs, the subject matter of Count 1, were found in her jacket pocket. Upon arrest and caution, she acknowledged that the drug in her possession was ketamine.

4. The vehicle was then searched and the dangerous drugs, the subject-matter of Count 2, were found in a covered compartment in front of the gear stick, contained within 16 packets inside a Ziploc bag. Another Ziploc bag contained 59 empty plastic bags, while, inside a storage area of the driver’s door, customs officers found a further plastic bag containing an electronic scale.

The applicant’s plea and cooperation

5. On 14 October 2014, the applicant had first entered her plea of guilty to Count 2, while no plea was entered on Count 1, which was left on the file. The prosecution advised the judge that the applicant had made a non-prejudicial statement, making full admissions that she and the 2^nddefendant had engaged in drug trafficking, and that she was prepared to give evidence for the prosecution against the 2^nd defendant. She made two further statements to customs officers detailing her and the 2^nddefendant’s drug trafficking activities.

The judge’s reasons for sentence

6. The 2^nd defendant was the applicant’s common law husband and the father of her young daughter. The judge was particularly impressed by the applicant’s resolve to give evidence against the 2^nddefendant, and by her attitude generally to her predicament. He said as follows:

“It is quite apparent to me that the 1st defendant is an intelligent young woman, who in the past had a bright future, but seems to have been led astray. It appears that in the course of this case she has come to realise this herself. She has displayed genuine remorse, and that is evidenced by her acknowledgment of guilt at an early opportunity and cooperation with the authority. The statements that she gave to customs officers are full and frank and she has all along indicated her preparedness to give evidence for the prosecution against the 2nd defendant. He has now pleaded guilty but she is nevertheless deserving of a further reduction to her sentence in addition to the reduction for her plea of guilty.

I have been impressed by her change of attitude, and I am of the view that she genuinely wishes to change her ways and make a better life for herself and for her daughter. She is now 23 years of age and with the second defendant has a young daughter, who obviously needs parental care and attention.

In light of the submissions and mitigation, I accept she is determined to care and look after her daughter and stay out of trouble. Her family have rallied behind her and given her tremendous support. I will bear this in mind when passing sentence.”

7. The judge then adopted a starting point of 7 years and 3months’ imprisonment for the quantity of ketamine narcotic involved and, giving her an almost 50% discount from that starting point, which included a one-third discount for her guilty plea, passed a sentence of 3years and 8 months’ imprisonment.

Discussion of discount

8. Mr Daryanani, for the respondent, submits that where a defendant (who is not in the supergrass category) gives valuable information to, and thereafter cooperates with, the authorities but is not required to give evidence, although he/she is poised to do so, a discount in the range of 40-45% has been held to be appropriate: see HKSAR v Ng Shek Yu (unrep., CACC 178/2000). However, he also refers to HKSARv Tse Yiu Ming (unrep., CACC 336/2006), where the Court observed that something in the region of a 40% discount is appropriate where a defendant pleads guilty and offers to give evidence, which offer is instrumental in affecting the plea of other defendants. Where, however, the defendant gives truthful evidence, the discount is in the region of 50%: see HKSAR v Sin Ki Hoi (unrep., CACC 380/2007).

9. The applicant has not said anything beyond arguing that the sentence was in all the circumstances too high.

Consideration

10. In this case, the applicant did not give evidence, although she was ready to do so, but she nevertheless received a discount of almost 50% from an otherwise appropriate starting point. That discount might appear on one view to have been rather generous. However, it must have been particularly difficult for the applicant to give information and cooperate with the authorities against her common law husband and the father of her child. In those circumstances, although she did not give evidence, her readiness to do so would have been a crucial factor in the decision of the 2^nd defendant to plead guilty. But perhaps more importantly, the judge was satisfied, as his sentencing remarks to which I had just referred indicate, that he could for the reasons he set out properly extend a considerable measure of leniency to the applicant in his sentencing discretion.

11. Therefore, whilst the applicant perhaps received a rather generous discount from an otherwise appropriate starting point, the judge was properly acting within his discretion for the reasons he gave.

12. However, much as the applicant may have impressed the judge, I cannot see how he could have extended any further generosity to the applicant. Had he done so, the sentence would have been open to the criticism that it was overly generous and not a proper exercise of his sentencing discretion. And it would have been out of step with other cases where defendants also cooperate with the authorities, sometimes at considerable personal cost, without ultimately having to give evidence.

13. Therein lies the problem for the applicant in this application for leave to appeal her sentence. Given that the starting point was plainly correct, it is difficult to see how any appellate court would be prepared to go beyond the rather generous discount of almost 50% from that starting point which the judge has already given. The applicant was not a supergrass and she did not give evidence.

14. Without detracting in any way from the sentencing judge’s remarks concerning the applicant, I cannot at this stage see any valid basis for saying that an otherwise generous sentence was manifestly excessive or wrong in principle.

Conclusion

15. In those circumstances, leave to appeal must be refused.

16. 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 any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.