HKSAR v. JIM CONNIE

IN THE COURT OF APPEAL

1997, No.135
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Stuart-Moore, J. (giving the judgment of the Court):

1. On 10th March 1997 this Applicant pleaded guilty in the High Court before Deputy Judge Hartmann to three charges. The first two alleged that she trafficked in dangerous drugs, namely mixtures containing 12.11 grammes and 60.84 grammes of heroin hydrochloride respectively. The third charge related to her simple possession of 10.04 grammes of heroin hydrochloride. The judge imposed sentences of three years, five years and nine months' imprisonment respectively but ordered that all of the sentences should be served concurrently, making five years in all.

2. The facts of the case relate to a surveillance operation that was mounted on 22nd April 1996 by customs officers who followed the Applicant from Quarry Bay to Hung Hom. Her taxi stopped in Gilles Avenue North where two men got into the vehicle with her. They are now known to be Chow Man-wai and Yeung Kwok-wai. The taxi was intercepted and the occupants were searched. The heroin in charge 1 was found in the possession of Chow Man-wai. Yeung Kwok-wai had $3,500 in his trousers pocket. The Applicant was found to have a packet under her brassiere and two further packets in her underpants which together formed the heroin referred to in the second charge. The heroin in the third charge was found at her home address. In interview later, she admitted that she earned $800 a day as a courier for Yeung Kwok-wai.

3. The heroin in this case was high grade in its purity, with a combined weight of 72.95 grammes. Under the Lau Tak-ming guidelines, a proper starting point for such an amount would have been between eight and nine years' imprisonment.

4. At the time of her arrest the Applicant was an unemployed 22 year-old heroin addict with no previous convictions. The judge considered that nine years was the appropriate starting point for the drugs in counts 1 and 2. However, he effectively lowered the starting point to 81/2 years, which he adopted on count 2, by making the lower starting point of five years' imprisonment on count 1 concurrent. The sentence of five years' imprisonment which this Applicant ultimately received demonstrates that she received an additional discount of eight months' imprisonment over and above the one-third reduction she might usually have been expected to receive for the remorse that she has exhibited from the time of her arrest. The reason for this apparently generous discount is explained by the cooperation given by this Applicant to the police in their inquiry.

5. We are unable to accept that the Applicant has been dealt with in a manner that is too severe. On the contrary, the trial judge took all the mitigation into account and gave full and generous credit for it.

6. We shall order that two months of the time spent by the Applicant in custody pending the hearing of this application, which we propose to dismiss, shall not be reckoned as part of the term of any sentence to which she is, for the time being, subject. That order comes under s.83W of the Criminal Procedure Ordinance, Cap.221. There was no merit at all in the application and, for that reason, we shall order loss of time.

7. The application is dismissed.