HKSAR v. WU HOI TING

CACC 154/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 154 OF 2013

(ON APPEAL FROM DCCC 183 OF 2013)

____________

____________

____________

J U D G M E N T

____________

Hon Lunn JA (giving the judgment of the court):

1.  The applicant, who appears in person, seeks leave to appeal against the sentences of imprisonment imposed upon her by District Court Judge Woodcock on 25 April 2013 following her pleas of guilty to a charge (charge 1) of unlawfully trafficking in a dangerous drug on 18 October 2012, namely 3.16 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and a charge (charge 2) of failing to surrender to custody on 14 December 2012 without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221. The applicant was sentenced to 2 years and 8 months’ imprisonment in respect of charge 1 and 4 months’ imprisonment in respect of charge 2. Two months of the latter sentence was ordered to be served consecutively to the sentence imposed in respect of charge 1. Accordingly, the total sentence of imprisonment imposed on the applicant was 2 years and 10 months’ imprisonment. The applicant’s application for the grant of legal aid was refused on 27 May 2013. By a letter repeated today the applicant said that she had applied for assistance of the Bar Association’s Free Legal Assistance Scheme on 9 July 2013. That was the date of her letter to the court. Enquiries by the court made of the Bar Association on 9 July and 23July 2013 indicated that no such application had been received by the applicant.

Summary of facts

2.  The applicant accepted as a factual basis for her pleas of guilty that, having been detained by police officers at 01:05 on 18 October 2012 in the street, a plastic bag containing the “ice” had been found underneath her brassiere.  In a video recorded interview the applicant had said that she intended selling the dangerous drugs for a profit.  The applicant accepted that she had failed to answer her bail by appearing at Kowloon City Magistracy on 14 December 2012 and had not been re-arrested until 31 January 2013.

Reasons for sentence

3.  In her reasons for sentence the judge noted that the applicant was 26 years of age and had “many previous convictions, all relating to offences of dishonesty”.  However, the judge noted that the applicant had no previous convictions relating to possession of or unlawfully trafficking in dangerous drugs, although the judge observed that the applicant admitted being addicted to “ice”.  Noting that the applicant had been the subject of a probation order, a rehabilitation centre order, a training centre order and a drug addiction order the judge said of the applicant, “she has been given chances before, been given help, but not turned over a new leaf.”

4.  Having said that she was mindful of the guidelines articulated in the judgment of the court in HKSAR v Ching Kwok Hung [1991] 2 HKLRD 125 for offences of unlawfully trafficking in “ice”, the judge stipulated a starting point for sentence of 4 years’ imprisonment for charge 1.  She stipulated a starting point for sentence of 6 months’ imprisonment in respect of charge 2, noting that the applicant had been granted bail to reappear in the magistracy but having failed to do so she had not surrendered to custody, rather she had been re-arrested.  The judge went on to discount the starting points taken for sentence by one third to reflect the applicant’s pleas of guilty to the charges.  Having regard to the principle of totality the judge ordered only 2 months of the sentence of 4 months’ imprisonment imposed in respect of charge 2 to be served consecutively to the sentence of imprisonment imposed in respect of charge 1.

GROUNDS OF APPEAL AGAINST SENTENCE

5.  In her ground of appeal against sentence attached to Form XI the applicant contends simply that the sentences are of excessive length.  Today, she emphasizes that in respect of the sentence for the drug charge.

DISCUSSION

6.  Clearly, having regard to the guidelines articulated in Ching Kwok Hung which provide for sentences of between 3 and 7 years’ imprisonment for unlawfully trafficking in up to 10 grammes of “ice”, the starting point of 4 years’ imprisonment stipulated by the judge in respect of charge 1 fell within the appropriate range of sentence for unlawfully trafficking in 3.16 grammes of “ice”.  Similarly, having regard to the fact that the applicant did not surrender to custody having failed to answer to her bail but was re-arrested some six weeks later, the starting point for sentence of 6 months’ imprisonment taken by the judge for charge 2 was entirely appropriate.  Further, given that the offence the subject of charge 2 was separate and of a different nature to the offence the subject of charge 1, it was appropriate that part of that sentence was ordered to be served consecutively to the sentence imposed in respect of charge 1.

7.  As counsel for the respondent, Ms Samantha Chiu, pointed out in her helpful written submissions, given the fact that the applicant had absconded and did not answer to her bail, the applicant was very fortunate to have been afforded the full discount of one third from the starting point taken for sentence for the charge of unlawful trafficking in a dangerous drug.  By absconding the applicant has hindered the course of justice.  The discount of one third from the starting point is afforded to those who tender a timely plea of guilty and may be withheld from those who abscond and hinder the course of justice (see the judgment of this court in HKSAR v Ko Chun Hung CACC 71/2007 unreported, 9 November 2007).  As Yeung JA, as he was then, pointed out in the judgment of the court (paragraph 25), by absconding the applicant committed a separate offence for which she fell to be punished separately.

Conclusion

8.  In the result, I am satisfied that there is no merit in the application for leave to appeal against sentence, which is refused.