HKSAR v. KUI PING, FANNY

CACC 199/2018

[2019] HKCA 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 199 OF 2018

(ON APPEAL FROM HCCC 99 OF 2018)

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REASONS FOR JUDGMENT

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Hon Wong J (giving the Reasons for Judgment of the Court) :

1.  The applicant was sentenced to seven years and four months’ imprisonment by Toh J (“the judge”) when her case was committed to the Court of First Instance for sentence following her plea of guilty in the Magistrates’ Court to a sole count of unlawfully trafficking in dangerous drugs, namely 132.03 grammes of heroin hydrochloride and 2.26 grammes of methamphetamine hydrochloride (commonly known as “Ice”)[1]. She sought leave to appeal against the sentence. We refused her application for leave and dismissed her appeal, indicating that the reasons would be handed down later. These are the reasons.

Application for Adjournment

2.  The applicant made a second application for an adjournment for at least six months on the ground that she required time to contact her family members on matters in relation to engaging private legal representation.  In consideration of the application, we took into account the following matters :

(1) the applicant was convicted and sentenced on 17 July 2018;

(2) she filed the Notice of Appeal on 20 July 2018;

(3) her application for Legal Aid was refused on 10 September 2018;

(4) her first application for adjournment was refused on 2 November 2018;

(5) her request for legal assistance from HKU was refused on 7 December 2018;

(6) her request for legal assistance from the Bar Association was refused on 9 January 2019;

(7) at the Mention Hearing on 23 January 2019, the applicant indicated that the case could be set down; and

(8) on 15 April 2019, she wrote to make the second application for adjournment.

3.  At the hearing, the applicant said no private lawyer had been contacted yet as she needed her family to do it for her but no family member had visited her since the Bar Association refused to give her assistance.  She stressed that she needed a lawyer to explain the papers to her.

4.  Having considered the whole circumstances, we were not satisfied that there were sufficient grounds to grant the application for adjournment. The applicant failed to persuade us why for such a length of time no concrete actions had been taken to engage a lawyer.  She needs her family to provide for the finance but it seems apparent to us that there has been insufficient interest and support on the part of her family.  We therefore refused the application for adjournment and proceeded to hear the application for appeal.

5.  As the applicant appeared in person, the hearing was stood down so that the Reasons for Sentence could be interpreted to the applicant.  Indeed, the reasons had been succinctly outlined in the letter of the Bar Association refusing her legal assistance which was written in Chinese.

The facts

6.  The applicant was stopped by Customs officers when she returned to Hong Kong at the Lo Wu Control Point.  Upon search, a condom containing “Ice” and heroin was found protruding from her vagina.  Under caution, she admitted that she bought the drugs in Mainland for about HK$1,000 for her own consumption.

7.  Later on the same day, whilst in custody, the applicant discharged three pellets each containing heroin.  Under caution, she repeated that she bought the drug for self-consumption, at the price of around HK$100,000 and admitted that there was one more pellet of heroin in her body.  On the next day, at a hospital she discharged a further pellet of heroin.  Nothing was seized from home search conducted at her reported address.

8.  The dangerous drugs in question were 2.36 grammes of crystalline solid containing 2.26 grammes of “Ice” and 172.67 grammes of a mixture containing 132.03 grammes of heroin hydrochloride.  The estimated street value of the “Ice” and heroin were HK$965.24 and HK$109,645.54 respectively, the total value was HK$110,610.69.

Mitigation

9.  The applicant was a single woman aged 44.  She was unemployed and had been receiving Comprehensive Social Security Assistance (“CSSA”) of HK$2,000 per month.

10.  In mitigation, counsel at the sentencing hearing[2] informed the court that the applicant was a victim of child abuse by her father and that she started to consume heroin at the age of 18 under undesirable peer influence.  Since then she had committed several drug-related offences.  For the present offence she carried the drugs from Mainland to Hong Kong for a reward of HK$3,000 plus 10 grammes of drugs for her own consumption.  Mitigation letters from the applicant, her mother and her daughter were submitted.

11.  It was asserted on behalf of the applicant that 10 grammes of the drugs found was for her own consumption, and it was submitted that the assertion was supported by her long history of drug addiction.

12.  It was also mentioned that the applicant was remorseful and prepared to provide the authority with information.

The Judge’s Reasons for Sentence

13.  The judge took into account that out of the applicant’s eleven previous convictions[3], eight of which were drug-related[4] and one[5] was trafficking in dangerous drugs.  Despite the applicant had been sent to the drug addiction treatment centre for three times she still dealt with drugs.  The judge stated that the only mitigation was that the applicant had pleaded guilty at the earliest opportunity.  The judge considered the mitigation letters and commented that the applicant was already aged 44 and therefore, she could no longer rely on the hardship she faced during childhood[6].

14.  The drugs the applicant trafficked in contained mainly heroin and a small quantity of “Ice”.  The judge regarded the 2.26 grammes of “Ice” as if it was heroin and considered sentence on the basis of a total of 134.29 grammes of heroin. Following the guideline laid down in The Queen v Lau Tak Ming and another[7], taking into account the poor record of the applicant, an initial starting point of 11 years was adopted.

15.  Having regard to the fact that the applicant brought the drugs into Hong Kong, the judge enhanced the starting point by six months following HKSAR v Chung Ping Kun[8].

16.  For the issue of self-consumption, the Judge was of the view that the applicant could not afford the quantity of the drugs as she claimed, having regard to the fact that her only income was CSSA of HK2,000 per month.  Taking into account the applicant’s record and urine test, the Judge accepted that the applicant might consume a small, insignificant amount of the drug she was carrying but it would be nowhere near the 10 grammes of narcotic as claimed during mitigation.  On this basis, the Judge gave a six months’ reduction from the starting point for the assertion of self-consumption.

17.  From the ultimate starting point of 11 years, a one-third discount was given for guilty plea.  The judge indicated that if the applicant was to provide information to the authority, which had not yet been done, the matter could be dealt with on appeal.  As a result, the applicant was sentenced to seven years and four months’ imprisonment.

Ground of Appeal

18.  The applicant relied on the standard ground of appeal in her Form XI.

19.  At the appeal hearing, the applicant stressed that the judge had given insufficient consideration to her assertion of self-consumption of drug.  She pointed out that she was a long term drug addict as evidenced by her criminal record, and also that tin foil and smoking instrument were found at her home.

Respondent’s Submissions

20.  Miss Chan Sze-yan, SPP, submitted that as “Ice” is a more potent drug than heroin, the judge could not be criticised by treating the “Ice” as heroin.  The 11‑year starting point adopted was not wrong in principle nor manifestly excessive, as it was within the “50-200” band of Lau Tak-ming case, and it was within the discretion of the judge to adopt a higher starting point for the applicant’s previous record, ie, enhancing nine months from a starting point obtained by adopting a strictly mathematical approach, which was about 7.3% enhancement.

21.  It was submitted that the judge was right to follow Chung Ping Kun case in enhancing the sentence by six months for international element.

22.  Concerning the issue of self-consumption, Miss Chan submitted that the judge was entitled to reject the applicant’s allegation that she agreed to carry the drugs for a reward of HK$3,000 plus 10 grammes of drug for her own consumption, as the market value of 10 grammes of heroin would be around HK$8,300, and a reward at the value of HK$11,304 was unusually high.  It was submitted that the judge was entitled to accept less than 7.4% (less than 10 grammes) of the total drug seized was for self-consumption given the applicant’s drug history.

23.  Lastly Miss Chan confirmed that according to the record of Customs and Excise Department, no information had been provided to the department.

24.  Therefore, Miss Chan submitted that the sentence imposed could not be said to be wrong in principle or manifestly excessive.

Discussion

25.  In the circumstances of the present case, the judge was entitled to take into account the previous record of the applicant and the international element.  The ultimate starting point of 11 years is entirely within the reasonable range of sentence taking into account the total quantity of the dangerous drugs and the factors just mentioned.  It would have been proper for the judge to adopt an even higher starting point in the light that the applicant was trafficking in two types of dangerous drugs.

26.  On the evidence, the judge cannot be criticised for taking the stance she took in relation to the assertion of self-consumption.  No doubt the judge was aware of the drug history of the applicant and had considered the case on the basis that she had been a drug addict.  The assertion that tin foil and smoking instrument were found is inconsistent with the facts which the applicant admitted.  In any case, even if the assertion had been true it would have little impact on the assessment.  In the circumstances, the reduction the judge gave for this reason was within the reasonable range.

27.  Obviously, up to now, the only valid mitigation available to the applicant is her guilty plea.  It was a timely plea and she was therefore entitled to a one third discount.

28.  The sentence imposed was neither wrong in principle nor manifestly excessive.  We therefore refused the application for leave to appeal against the sentence and dismissed the appeal.