HKSAR v. SHE SUET YEE

CACC 383/20 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 383 OF 2016

(ON APPEAL FROM DCCC NO 578 OF 2016)

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J U D G M E N T

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1.  On 8 December 2016, the applicant appeared before HH Judge G. Lam (“the judge”) in the District Court and pleaded guilty to one charge of trafficking in 23.9 grammes of a solid containing 22.2 grammes of cocaine (Charge 1), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and one charge of possession of 1.09 grammes of a crystalline solid containing 1.09 grammes of methamphetamine hydrochloride (commonly known as “Ice”) (Charge 2), contrary to section 8(1)(a) and (2) of the same Ordinance. On 9 December 2016, the applicant was sentenced to an overall term of 44 months’ imprisonment in respect of both charges.

2.  On 16 December 2016, the applicant filed a Notice of application for leave to appeal (Form XI).  She now seeks leave to appeal against her sentence.

Facts

3.  On 23 March 2016, a team of police officers in plain clothes were conducting anti-narcotics patrol in Yau Ma Tei, Kowloon.  After entering G/F of Silka Seaview Hotel (“the Hotel”), situated at No 268  Shanghai Street, they noticed the applicant acting furtively in the lobby of the Hotel and accordingly kept her under observation.  About 7 minutes later, the applicant suddenly proceeded to leave the Hotel hurriedly, whereupon the police officers intercepted her as she was exiting the main door to the Hotel.

4.  The applicant was escorted to the rear lane of the Hotel at her request and a search conducted.  During the search, one re-sealable plastic bag containing another plastic bag containing what was later confirmed to be the dangerous drugs, the subject matter of Charge 1, was found held by the applicant’s left hand in the left sleeve of her jacket.  The applicant then told the police officers that there was another plastic bag containing dangerous drug inside her brassiere.  The applicant removed the plastic bag from her brassiere of her own accord and it was subsequently found to contain the dangerous drugs, the subject matter of Charge 2.

5.  The applicant was cautioned at the scene, whereupon she indicated that somebody had given her HK$500 to deliver the dangerous drug to someone else.  She was duly arrested and escorted back to Yau Ma Tei Police Station.  She had HK$96.90 in cash and one mobile telephone in her possession at the time.

6.  In a subsequent video-recorded interview conducted at the police station, the applicant made further admissions under caution.  She told the police that a female called “YoYo”, whom she had met with on the night of the 19 or 20 March 2016, had offered her a reward if she would deliver dangerous drugs for her.  On 23 March 2016 at around 8:00 pm, “YoYo” had called the applicant and asked her to deliver some dangerous drugs.  She subsequently met “YoYo” at the Pioneer Centre in Mongkok and was given the two packets of dangerous drugs.

7.  The applicant claimed that the smaller of the two bags of dangerous drugs containing “Ice” belonged to her and was for her own consumption; whilst she did not know what type of dangerous drug was in the bigger bag.  She had been instructed that a female would collect the dangerous drugs from her at the Hotel.  To that end, “YoYo” then showed her some photographs of the person who would collect the dangerous drugs from her, which were stored in her mobile telephone.  She asserted that she had paid HK$300 for the smaller bag of “Ice”.

8.  The applicant said that she had been unemployed since March 2016 and occasionally took “Ice”.  She further claimed that the mobile telephone together with two SIM cards found on her were used for Internet connections and making telephone calls, while the cash was her savings.

9.  The estimated street values of the cocaine and “Ice” seized at the material time were HK$25,525 and HK$341 respectively.

Mitigation

10.  The applicant was 22 years old at the time of her sentence with a clear criminal record.  Her parents had separated and she had subsequently been raised by her father, who had died three years ago.  The applicant had previously worked as a clerk earning HK$11,000 per month before she resigned in February in order to change jobs.  However, it was said by counsel on her behalf that she was unable to find a new job.  It was submitted that the applicant had used up most of her savings and, because of her “Ice” habit, had foolishly agreed to deliver the dangerous drugs.  She had been cooperative with the police officers throughout and made a full and frank confession.

11.  A urine test conducted on the applicant upon her remand in custody after her arrest had tested positive for “Ice”.  Accordingly, it was submitted that the court should treat the entire contents of the bag, the subject matter of Charge 2, as intended for the applicant’s own consumption with no latent risk of passing it to a third party.  It was acknowledged that the appropriate guideline starting point in respect of trafficking in the quantity of cocaine in Charge 1 should be within the 5 to 8 years’ imprisonment bracket.

Reasons for sentence

12.  The judge noted the need for deterrent sentences for drug trafficking offences so as to underscore the seriousness of the crime; and with a view hopefully to deterring people from agreeing to become “couriers” too readily.

13.  In respect of the quantity concerned in Charge 1, the judge noted that the appropriate range of sentence after trial set out in the guidelines established by R v Lau Tak Ming & Others[1] was between 5 and 8 years’ imprisonment.  The judge adopted a starting point of 5½ years’ imprisonment (or 66 months’ imprisonment), which he then reduced to 44 months’ imprisonment for the applicant’s guilty plea.

14.  As for Charge 2, the judge accepted from the packaging and the applicant’s urine test results that there would hardly be any latent risk of the applicant trafficking in the drugs concerned.  Accordingly, he took a starting point of 6 months’ imprisonment, which he reduced to 4 months’ imprisonment for plea.  Bearing in mind the totality of the sentence to which the applicant was subject, he ordered the sentences on Charges 1 and 2 to run concurrently with each other.

Grounds of appeal against sentence

15.  In her initial grounds of appeal attached to her Form XI, the applicant simply stated that she wished to apply for leave to appeal against her sentence and to have legal aid assistance.  Her application for legal aid, however, was subsequently refused on 24 January 2017.  Before me this morning, the applicant applied for an adjournment of this hearing on the basis that her family members (none of whom were present in court) were looking for a private lawyer to represent her.  I refused the application.

Respondent’s submission

16.  Mr Daryanani, on behalf of the respondent, submits that given the quantity involved in Charge 1, namely 22.2 grammes of cocaine narcotic, the initial starting point should have been 5 years and 11 months’ imprisonment on an arithmetic basis.  A one-third discount would yield a sentence of 47 months’ imprisonment.  Accordingly, the applicant could not complain of a sentence which was 3 months lower than it might have been.

17.  In respect of Charge 2, he argues that, in accordance with HKSAR v Mok Cho Tik[2], the starting point for simple possession should have been in the range of 12 to 18 months’ imprisonment.  Even if the considerations in HKSAR v Ramirez[3] applied, the starting point would still have been 9 months’ imprisonment; accordingly, the applicant had no valid complaint about her sentence after plea of 4 months’ imprisonment.  In any event, the argument was otiose, since the judge had ordered the whole of the sentence on Charge 2 to run concurrently with the sentence on Charge 1.

Consideration

18.  I agree with the respondent.  The overall sentence in this case could well have been slightly higher, had the judge adopted a strictly arithmetic approach.  Further, there can be no valid complaint about the sentence on Charge 2, since it was ordered to run concurrently with the sentence on Charge 1.  If the overall sentence was slightly less than it should have been when viewed strictly arithmetically, it may be because the judge in his discretion was factoring into the sentencing equation the applicant’s relatively young age and clear record.

19.  I cannot see any reasonable prospect that an appellate court would be prepared to say that the resulting sentence was either manifestly excessive or wrong in principle.  The application for leave to appeal against sentence must, therefore, be refused.

20.  In view of what I have said about the sentence being possibly shorter than she in fact received, I should give the applicant this caution.  She has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned of 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 her application.

[1] R v Lau Tak Ming & Others [1990] 2 HKLR 370.

[2] HKSAR v Mok Cho Tik [2001] 1 HKC 261.

[3] HKSAR v Ramirez [2015] 1 HKLRD 966.