HKSAR v. LAM WAI FONG, KITTY

CACC 203/2018

[2018] HKCA 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 203 OF 2018

(ON APPEAL FROM DCCC NO 48 OF 2018)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against her sentence of 2 years and 2 months’ imprisonment imposed on her by District Court Judge Dufton, following her conviction on her own plea to trafficking in dangerous drugs, namely 7.21 grammes of a mixture containing 4.67 grammes of heroin hydrochloride and 20 tablets containing 0.242 gramme of midazolam.

2.  The facts of the case as explained by the judge in his reasons for sentence were as follows:

“2. In summary at around 2123 hours on 19 November last year PC 22369 intercepted the defendant outside a female toilet near Block 23 of Shek Kip Mei Estate in Sham Shui Po. The defendant was holding in her right hand a plastic bag inside which was ten packets containing a total of 2.09 grammes of a mixture containing 1.35 grammes of heroin together with five foil packs containing five tablets containing 0.06 gramme of midazolam.

3. PC 22369 then arrested the defendant. The defendant attempted to flee and at the same time threw a black plastic bag on the ground. PC 22369 stopped the defendant and checked the black plastic bag. Inside the black plastic bag PC 22369 found twenty-four packets containing a total of 5.12 grammes of a mixture containing 3.32 grammes of heroin and fifteen foil packs containing fifteen tablets containing 0.182 gramme of midazolam.

4.      In the police station a further ten empty plastic bags were found in the defendant’s handbag.”

3.  The judge in his reasons for sentence noted the mitigation on behalf of the applicant that she had been a heroin addict for over ten years and that at the time of her arrest she was unemployed, on welfare benefits and living under a footbridge.  He noted that counsel for the applicant initially submitted that the drugs found in the bag she was carrying were for her own consumption, but later after taking instructions from the applicant, withdrew the submission.  The judge confirmed with the applicant her instructions and asked her specifically if all the drugs were for trafficking, and not for her own consumption, which she acknowledged was the case. 

4.  In sentencing the applicant, the judge applied the tariff guidelines for trafficking in heroin of R v Lau Tak Ming (1990) 2 HKLR 370 and adopted a starting point of 3 years and 4 months’ imprisonment for 4.67 grammes of heroin.  However, he took a slightly lower starting point of 3 years and 3 months’ imprisonment in consideration of the applicant’s background.  He disregarded for the purposes of sentencing the small quantity of midazolam which he considered would not increase the starting point that he would adopt for the heroin narcotic.  He reduced the applicant’s sentence by one third for her guilty plea and sentenced her to 2 years and 2 months’ imprisonment. 

5.  The applicant complains that the sentence was “heavy” in light of the fact that this was the first time that she had been convicted of trafficking in drugs.  The judge applied the guideline tariff for this quantity of drugs.  There is no basis for complaint.  She also complains that the judge directed her counsel in relation to her sentence, and she notes that she admitted that the drugs were for her own consumption, but never admitted that they were for trafficking.  Her complaint is contradicted by the admitted facts and by what took place before the judge who confirmed with her that all the drugs in question were for the purpose of trafficking. 

6.  This application for leave to appeal against sentence is devoid of merit and is therefore refused. 

7.  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.