HKSAR v. WONG CHI YING

CACC 320/2018

[2019] HKCA 624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 320 OF 2018

(ON APPEAL FROM DCCC NO 482 OF 2018)

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J U D G M E N T

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1.  On 31 October 2018, following her guilty plea before District Court Judge K Lo to one charge of trafficking in dangerous drugs (Charge 1) and to one charge of keeping a divan (Charge 2), the applicant was sentenced to 3 years, 5 months and 21 days’ imprisonment on Charge 1 and 16 months’ imprisonment on Charge 2, with 8 months of the sentence on Charge 2 ordered to be served consecutively to the sentence on Charge 1.  The total sentence was a term of imprisonment of 4 years, 1 month and 21 days.

2.  The applicant applies for leave to appeal against her sentence. 

3.  The facts outline to the judge, and admitted on behalf of the applicant, were that on 25 March 2018, the police conducted a raid of the flat in which the applicant and six others were present.  The police found inside the applicant’s sling bag, a total of 16.74 grammes of a mixture containing 12.90 grammes of heroin hydrochloride and 62 tablets containing 0.86 gramme of midazolam.  The police also found in the flat items and paraphernalia for the consumption of drugs. 

4.  The applicant admitted that she was trafficking in the drugs that were seized and that she kept a divan at the flat.

5.  The applicant was 29 years of age at the time of the offence and was separated from her husband.  She worked part time as a hairdresser, earning $3,000 per month.  She had two previous convictions for possession of a dangerous drug in 2007 and 2009, for which she was given a probation order and a rehabilitation centre order respectively.  It was acknowledged in her mitigation that she had been taking drugs since she was 13 years of age. 

6.  As for Charge 1, the judge applied the sentencing guidelines in R v Lau Tak Ming & Others [1990] 2 HKLR 370, for 12.90 grammes of heroin narcotic and adopted a starting point of 5 years, 2 months and 20 days’ imprisonment.  She did not further increase the sentence to reflect the quantity of midazolam.  She discounted the starting point by one-third for the applicant’s guilty plea to 3 years, 5 months and 21 days’ imprisonment. 

7.  As for Charge 2, the judge adopted a starting point of 2 years’ imprisonment, taking into account the scale of the operation and the applicant’s role in keeping the divan, together with the circumstances under which she committed the offence.  She referred to HKSAR v Cheung Yiu Fai Alex, CACC 173/2005, 18 August 2005, unreported.  She discounted the starting point by one-third for the applicant’s guilty plea to 16 months’ imprisonment. 

8.  The judge considered that both offences were separate and distinct, and warranted wholly consecutive sentences, but taking into account the totality principle, she ordered that 8 months of the sentence on Charge 2 be served consecutively to the sentence on Charge 1.  This resulted in a sentence of 4 years, 1 month and 21 days’ imprisonment.

9.  There is no merit in the applicant’s challenge to her sentence.  The starting points adopted by the judge in respect of the two charges were at the appropriate level.  There was no other mitigating factors other than the applicant’s timely guilty pleas, and hence the overall sentence was right.

10.  The applicant does not advance any grounds of appeal against her sentence, and it is clear from the circumstances of her case that there is no basis for complaint for the sentence that was imposed on her by the judge.  There is no substance to the application and leave to appeal against her sentence is refused. 

11.  The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.