HKSAR v. SHERPA, HANG LAMU

HCMA 77/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 77 OF 2015

(ON APPEAL FROM KCCC 3131 OF 2015)

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J U D G M E N T

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1.  This was an appeal against conviction and sentence. The appellant was convicted by a magistrate[1] of two offences. The first charge was for an offence of theft[2] and the second charge was for an offence of possession of a dangerous drug[3].

2.  The appellant was sentenced to 3 weeks’ imprisonment on charge 1 and 38 weeks’ imprisonment on charge 2.  One week imprisonment of the first charge was to run consecutively to the sentence on charge 2, making the total sentence for both charges to be one of 39 weeks’ imprisonment.

The facts

3.  The facts are straight forward.  On 18 August 2014 the appellant, a 39 years old Nepalese female, was stopped and searched by police officers in Temple Street.  Found inside her handbag was a personalised octopus card which bore a name and photo of a young boy.  As the appellant failed to produce her identity card (ID card) she was taken to the Yau Ma Tei Police Station.  Later that same day after a body search at the police station a packet of drugs containing 12.2 grammes of a powder containing 10.5 grammes of ketamine was found inside her left bra.  This was the basis of charges 1 and 2 respectively.

4.  The octopus card found on the appellant was later identified by its owner as belonging to him.  He got the card in April 2013 but lost it in June or July 2013.

Defence case

5.  The appellant testified.  She admitted to picking up the ID card that did not belong to her at a playground in the Jordan district in June 2013.  She kept it for the use of her son in future.  She claimed that her ID card was with her when she was intercepted by the police officers and she produced it on demand.  She denied being in possession of any drugs.  She claimed the police had planted the drugs in her pants whilst she was in the police van. She denied that any drugs were found in her bra at the police station. 

Grounds of Appeal against conviction

6.  The appellant was not legally represented at her appeal.  In her home made grounds of appeal she contended that the magistrate erred in accepting the evidence of the police officers as the police had fabricated their accounts, lied and made false accusations against her. 

The magistrate’s findings

7.  The magistrate was aware that the credibility of the two police officers who gave evidence was an important issue.  No issue was taken as to the credibility of the owner of the octopus card.  The magistrate considered the police officers evidence with care in light of the appellant’s submission that the police officers had fabricated their accounts.  He reminded himself that the appellant had no burden to prove anything including the motive for the officers in framing her.  He explained how he reached his conclusion and analyzed the evidence.  He found the officers to be credible and reliable.  He directed himself on the good character of the appellant and the standard of proof.  He found that the appellant did not hold the belief that the octopus card was abandoned property.  He rejected the appellant’s evidence. 

Discussion

8.  This was a case where credibility was an issue.  The magistrate was alive to that issue.  The magistrate evaluated the evidence reasonably and logically.  Taking into account the advantage enjoyed by the trial magistrate of having seen and heard the witnesses when assessing the evidence the conclusion he reached was one he was entitled to reach. 

9.  The findings made by the magistrate were proper and reasonable.  I can see no grounds in disturbing the findings of the magistrate.  In the circumstances the appeal against conviction is accordingly dismissed.

Appeal against sentence

10.  In the appellant’s notice of appeal against sentence she relies on the ground that her sentence was too severe.  At the hearing of the appeal and also before the magistrate she submitted she was not a drug addict and the officers had falsely accused her of taking drugs.  

Reasons for sentence

11.  The reasons for sentence were succinctly put the magistrate.  He properly directed himself as to the clear record of the appellant.  He accepted that this was a case of theft by finding.  Having considered all the circumstances, on charge 1 he adopted a starting point of 4 weeks’ imprisonment, he then deducted 1 week for her clear record resulting in a sentence of 3 weeks’ imprisonment. 

12.  The magistrate called for a Drug Addiction Treatment Centre Report (DATC) report before sentencing.  The DATC report stated that the appellant was not a drug dependent and treatment was not suitable for her. 

13.  The magistrate then went on to consider the case of HKSAR v Nguyen Cong Su CACC286/2012, (date of judgment was 24 January 2013). The Court of Appeal held where an offender had no similar previous drug conviction and there was only a very small amount of drugs a starting point of 9 months’ imprisonment is appropriate for an offence of possession of a dangerous drug.  

14.  Having had regard to the case in Nguyen Cong Su and the nature and quantity of the drug involved he took a starting point of 36 weeks’ (9 months) imprisonment.  He considered the latent risk factor and enhanced the sentence by 4 weeks’ imprisonment.  He deducted from that term 2 weeks for her clear record and sentenced the appellant to 38 weeks’ imprisonment.  Having considered the principle of totality he ordered 1 week out of the 3 weeks in charge 1 to run consecutively to the 38 weeks in charge 2, sentencing her to a total of 39 weeks’ imprisonment. 

Discussion

15.  There is no sentencing tariff for the charge of theft.  Although the appellant was convicted after trial this was the appellant’s first brush with the law.  In my view the sentence of 3 weeks’ imprisonment for a first offender of a theft by finding of this nature was on the high side. 

16.  On the second charge of possession of a dangerous drug the magistrate had regard to Nguyen Cong Su which was a comparable case in regard to the quantity of drugs and a person with no similar previous convictions.  Taking those factors into account a sentence of 36 weeks’ (9 months) imprisonment after trial was not inappropriate. 

17.  As to the enhancement of sentence for the latent risk factor, it was stated by Stock JA in HKSAR v Mok Cho-tik [2001] 1 HKC 261 at 267 B- E :-

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. 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 magistrates 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. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

18.  The appellant agreed to the contents of the DATC report.  It stated that she was not a drug dependent, that she said she had never taken any dangerous drugs before and had unsteady employment.  It was admitted by the appellant that she was not a drug addict.  Bearing in mind the above factors and that when the appellant was intercepted by the officers she had just left her residence with the packet of drugs hidden in her bra, the latent risk factor was high.  The enhancement of 4 weeks’ imprisonment was appropriate.

19.  The magistrate’s deduction of time for the appellant’s clear record on both charges was generous.  The two offences were separate and distinct, consecutive sentences were appropriate. 

20.  Having regard to the facts of the case and the overall sentence imposed of 39 weeks’ imprisonment the total term of imprisonment was neither wrong in principle nor manifestly excessive. 

21.  In the circumstances the appeal against sentence is dismissed.