HKSAR v. CHAN YUK FUNG

CACC 195/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 195 OF 2005

(ON APPEAL FROM HCCC NO. 265 OF 2004)

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.  Chan Yuk-fung (the applicant) applies for leave to appeal against sentence out of time.  On 20 March 2004, she was found with 27.26 grammes of a mixture containing 26.73 grammes of methamphetamine hydrochloride (generally known as ice), which had a street value of $10,000.  She has pleaded guilty to one count of trafficking in those drugs.  On 14 April 2005, she was sentenced to imprisonment for 5 years and 4 months.

2.  The sentence was arrived that after giving a one-third discount for her plea from a starting point of 8 years.  Pang J chose the starting point of 8 years following the guidelines laid down by this court in AG v Ching Kwok-hung [1991] 2 HKLR 125.  According to the guidelines, the range of sentence for 10 to 70 grammes of ice is 7 to 10 years.

3.  The applicant was just over 21 at the time of the offence and had no relevant previous conviction.  However, as the judge has explained, for this kind of offences, such matters carrying little weight in mitigation.  The applicant has referred us to two decisions which according to her, indicate that the sentence in this case is too high.  The details of those two decisions have not been verified, but according to the applicant, in HCCC 10/2005, which was decided on 14 July 2005, one Lei Mei Yi was also convicted of trafficking in ice where the quantity involved was 46.07 grammes.  She was similarly sentenced to imprisonment of 5 years and 4 months, but in her case, she had four previous convictions, two of which involved possession of dangerous drugs.

4.  Another case that she has referred us to, according to her, was decided on 4 November 2005, and the reference number she has given us is KTCC 1822/2005.  It also involved 26 grammes of ice and the defendant in that case was sentenced to 4 years’ imprisonment although she had previous convictions for drug offences.

5.  The reason for guidelines is that as much as possible “like cases should be treated alike”.  But as the range of sentence in the guideline indicates, the sentencing judge is given a discretion in the matter.  Here the range of sentence for 10 to 70 grammes of ice is 7 to 10 years.  This court is not entitled to interfere unless the sentence is manifestly excessive.  It is not sufficient to point to other cases where the defendants might have been given higher or lower sentences.  The starting point of 8 years in this case, falls within the range of 7 to 10 years and cannot be described as manifestly excessive.

6.  As for the applicant’s submission regarding to the remorse that she has felt as a result of this offence, again this is not a matter which can carry much weight in mitigation.  So in the circumstances, even if the application for leave to appeal had been made in time, we would have dismissed it.

7.  That being the case, the application for leave to appeal against sentence out of time is dismissed.