HKSAR v. TO LAI KUEN

CACC 309/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 2015

(ON APPEAL FROM DCCC NO. 622 OF 2015)

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J U D G M E N T

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1.  On 8 September 2015, the applicant pleaded guilty before Deputy District Judge Marco Li to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1), and two counts of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance (Charges 2 and 3). On 9 September 2015, she was sentenced to 28 months’ imprisonment in respect of Charge 1, and 8 months’ imprisonment each on Charges 2 and 3, with all sentences being ordered to run concurrently with each other.

2.  On 15 September 2015, the applicant filed a Notice of Application for leave to appeal against her sentence.

The facts

3.  On 4 May 2015, at about 6:18 pm, the applicant was intercepted by a police officer patrolling near the junction between Johnston Road and Tai Wo Street in Wanchai.  Upon a search of her person, 46 packets containing suspected dangerous drugs were found in the applicant’s waistband, which were later found to amount to a total of 6.64 grammes of a mixture containing 5 grammes of heroin hydrochloride.  The applicant was arrested and cautioned, upon which she said she had just “picked up” the plastic bag of heroin hydrochloride.  A further search of the applicant at the police station revealed, inter alia, two notebooks in her possession containing handwritten entries in relation to prices, the number of packets, names and telephone numbers.  In a subsequent interview, the applicant told the police that she had “picked up” the drugs from a staircase in a building nearby.

4.  In pleading guilty to the Summary of Facts, the applicant accepted that she “possessed all the dangerous drugs seized for the purpose of trafficking”[1].  (It may be noted that initially the applicant’s solicitor sought in mitigation to resile from this admission in respect of “all” the drugs concerned in Charge 1, suggesting that half of the quantity were for the applicant’s own consumption.  However, after a short adjournment, the applicant’s solicitor withdrew his submission and the applicant was asked to confirm her admission of the Summary of Facts directly with the judge.  This she did.)

5.  Whilst in custody at Tai Lam Detention Centre, on 6 May 2015, the applicant discharged one packet containing 0.15 grammes of a mixture containing an unquantifiable amount of heroin hydrochloride, which she admitted she had swallowed when she was intercepted by the police on the day of her arrest (Charge 2).  On 8 May 2015, she discharged a further four packets containing a total of 0.56 grammes of a mixture containing 0.43 grammes of heroin hydrochloride, which she also admitted she had swallowed at the same time (Charge 3).

6.  The total street value of the drugs seized was about HK$5,005.

Mitigation

7.  In mitigation, it was submitted that the applicant came from a poor family and had only completed primary education[2]; that, following her release for her last offence of trafficking in February 2015, she had become homeless, when her public housing unit was forfeited by the Housing Department[3].  It was said that the applicant had been addicted to heroin since the age of 27 or 28[4]. As I have already mentioned, the applicant’s solicitor’s attempt during mitigation to suggest that the applicant possessed half of the drugs in Charge 1 for her own consumption was not taken further after a short adjournment for instructions to be taken[5].

8.  It was also submitted on the applicant’s behalf that the dangerous drugs in Charges 2 and 3 came from the same source as the drugs in Charge 1.  Further, that the applicant had volunteered the information that she had swallowed five packets of drugs to the police before her admission into Tai Lam Detention Centre[6].

Reasons for Sentence

9.  In sentencing the applicant, the judge took into account the fact that all of the drugs in all three charges came from the same source.  Accordingly, he considered that the sentences for all three charges should run concurrently with each other[7].

10.  The judge took a starting point of 3 years’ imprisonment in respect of Charge 1, making an upward adjustment of 6 months for the fact that the applicant had only been released from prison in respect of another trafficking offence in February 2015 (roughly 3 months before the commission of the offence before the court).  Giving the applicant a full one-third discount, the judge arrived at a sentence of 28 months’ imprisonment for Charge 1.

11.  In respect of Charges 2 and 3, the judge took a starting point of 12 months’ imprisonment, which he again reduced by one-third to 8 months’ for plea.  Ordering that all sentences were to run concurrently with each other, the overall sentence became 28 months’ imprisonment.

Grounds of appeal against sentence

12.  In her Form XI, the applicant did not state any grounds for her application for leave to appeal against sentence.  Before me today, however, she has requested an adjournment for her family members (who were not present in court) to fund an approach to a private lawyer for an appeal.  However, I refused the application.  I bore in mind, among other considerations, that the applicant had filed her notice of appeal in September 2015 and that her earliest date for release will be in November this year.  I shall proceed on the basis that applicant complains that the sentence is manifestly excessive.

The respondent’s submissions

13.  The respondent submits that the starting points and final sentence imposed by the judge were unimpeachable.  For trafficking in heroin, the sentencing guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 indicated a range of 2 to 5 years’ imprisonment for quantities of up to 10 grammes of heroin narcotic.  If one were to view the quantity in relation to the range of sentence arithmetically, a sentence of 3½ years’ imprisonment would have been appropriate for 5 grammes of heroin narcotic.  Accordingly, the starting point of 3 years’ imprisonment taken by the judge cannot be faulted.

14.  The enhancement of 6 months from the starting point for Charge 1 was also said to be appropriate, since the applicant had committed an identical offence very soon after being released for a previous trafficking offence: see HKSAR v Chau Hon Kwong [2011] 1 HKRLD 630.  Although Mr Brook, on behalf of the respondent, properly accepts that another judge might in his/her discretion have given a shorter enhancement for this factor, 6 months was within the range of options open to a sentencing judge.  In any event, an appellate court must ultimately look at the overall sentence imposed, in deciding whether it was manifestly excessive.

15.  In respect of the possession charges, Mr Brook submits that a starting point of 12 to 18 months’ imprisonment was appropriate: see HKSAR v Mok Cho Tik [2001] 1 HKC 261.

Consideration

16.  Whether or not the judge was right to enhance the sentence on Charge 1 by as much as 6 months in view of the applicant’s previous conviction for unlawful trafficking and the fact that she was arrested a mere 3 months after completing her sentence for that offence, does not much matter in the present circumstances.  The fact is that a starting point of 3½ years’ imprisonment, however it was achieved, would have been an entirely correct sentence after trial for the quantity concerned under the guidelines in Lau Tak Ming,regardless of her previous criminal record for the same offence.

17.  Furthermore, whether the starting points and resulting sentences after plea on Charges 2 and 3 might have been less in view of the minute quantities concerned (see HKSAR v Ramirez [2015] 1 HKLRD 966, at para 17) is of no consequence either, since the sentences, whatever they were, were properly made wholly concurrent with the principle sentence on Charge 1.

Conclusion

18.  Accordingly, I can see no reasonably arguable grounds for appealing the overall sentence in this case.  The application for leave to appeal must, therefore, be refused.

19.  The applicant is duly advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal, but 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 the application.

[1] Appeal Bundle, p 6, para 4A

[2] Appeal Bundle, p 22P-Q

[3] ibid., p 24P-U

[4] ibid., p 25B

[5] ibid., pp 26F-28F; Reasons for Sentence, para 5

[6] ibid., p 28F-H

[7] Reasons for Sentence, para 8