HKSAR v. LAW YING KAM

CACC 183/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 183 OF 2015

(ON APPEAL FROM DCCC NO. 207 OF 2014)

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J U D G M E N T

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1.  On 1 June 2015, the applicant pleaded guilty before HH Judge Johnny Chan in the District Court to one count of ‘Trafficking in dangerous drugs’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134(Charge 1) and another count of ‘Failing to surrender to custody without reasonable cause’, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 2). The applicant was sentenced on the same day to 2 years’ imprisonment in respect of Charge 1, and 6 months’ imprisonment on Charge 2, which sentences were ordered to run consecutively with each other. The total sentence was, therefore, 30 months’ imprisonment.

2.  On 4 June 2014, the applicant filed a notice of application for leave to appeal against sentence in respect of Charge 2 only.  However, her application for leave to appeal shall be treated, by virtue of section 83I(2) of the Criminal Procedure Ordinance, as an application in respect of the sentences on both charges.

3.  The applicant initially applied for an adjournment of this hearing so that she could obtain legal representation.  However, no concrete proposals have been advanced or placed before me as to how she might go about doing that or who she might approach, legal aid having already been refused more than 3 months ago.  All I have heard about are vague approaches to a law clerk of an unidentified solicitor’s firm last Friday, and to the applicant’s mother, who is currently in the mainland.

4.  This offence was committed almost two years ago.  The applicant has been in custody for more than 7 months in respect of a sentence which, with good behaviour, will be completed after 20 months.  I am not prepared to let this matter drag on with only vague assertions that she might be able to obtain legal representation at some future date.  Accordingly, I refused the application for an adjournment of today’s hearing.

The facts admitted by the applicant

Charge 1

5.  At about 17:18 hours on 23 November 2013, the police intercepted the applicant as she was coming out of her residence on 11^th floor of domestic premises in Yau Ma Tei, Kowloon.  The police took the applicant back into the premises, where her boyfriend was also present.  Upon a search of the premises, the police found the following items in a plastic box in a teapoy in the living room:

(i) 3 plastic bags containing a total of 9.23 grammes of a solid containing 4.86 grammes of cocaine (‘Exhibit 1’);

(ii) 2 plastic bags containing a total of 0.46 grammes of a crystalline solid comprising methamphetamine hydrochloride in the same amount (‘Exhibit 2’);

(iii) 1 plastic bag containing 0.17 grammes of a powder containing 0.13 grammes of ketamine (‘Exhibit 3’);

(iv) a bundle of empty plastic bags (‘Exhibit 4’).

6.  The estimated street value of Exhibits 1 to 3 was approximately HK$10,469.

7.  Upon arrest at the scene, the applicant admitted under caution that the dangerous drugs were for her own consumption but that she would sell some cocaine to her friends.  Later, when the police post-recorded the course of the arrest and caution, the applicant revised her statement to say that the dangerous drugs were for her own consumption, but that the cocaine she supplied to her friends would be free of charge.

8.  In a video recorded interview on 24 November 2013, the applicant further admitted under caution that she purchased the dangerous drugs in question from an unknown person in a bar at Tsim Sha Tsui in the early hours of 23 November 2013 for HK$2,000.  She brought the drugs home and placed them in the plastic box.  If the applicant’s friends wanted to have some cocaine, she would invite them home and supply the drug for their consumption free of charge.

Charge 2

9.  The applicant failed to appear in court on the day of her plea on 1 April 2014.  As a result, a warrant of arrest was issued.  Eventually, the applicant was arrested almost a year later on 14 March 2015.  During a subsequent cautioned interview, the applicant admitted she did not attend the court for the hearing on 1 April 2014.

Reasons for sentence

10.  Having examined all the circumstances of the case, the judge considered the narcotic content of the three kinds of dangerous drugs concerned in Charge 1. While methamphetamine hydrochloride was the most potent of the dangerous drugs concerned, the largest significant quantity was cocaine.  Adopting a starting point of 3½ years’ imprisonment in respect of the combined quantity of dangerous drugs, he reduced it to 2 years and 4 months’ imprisonment for the plea; and then further reduced the sentence to 2 years’ imprisonment for the element of the applicant’s own consumption, resulting in a sentence on Charge 1 of 2 years’ imprisonment.

11.  In respect of Charge 2, the judge took a starting point of 9 months’ imprisonment and reduced it by one-third to 6 months for her guilty plea.  The judge considered the principle of totality before ordering the two sentences to be served consecutively to each other, making an overall sentence of 30 months’ imprisonment.

Grounds of appeal against sentence

12.  In summary, the applicant has submitted that the sentence on Charge 2 was unfair and unjust since concurrent sentences have been imposed in numerous other cases.  Accordingly, she asks for her sentence to be reduced. She makes no specific complaint about the sentence on Charge 1.

Consideration

13.  There can be no reasonable complaint about the sentence passed on Charge 1, given the quantities of dangerous drugs involved and the fact that the applicant admitted that she was trafficking in three different kinds of dangerous drug.  The only issue is whether there is a reasonable argument that the judge was wrong to make the 6 months’ imprisonment concurrent on Charge 2.

14.  In the case of HKSAR v Wong Yui Ming (unrep., CACC 348/2003), a sentence of 6 months’ imprisonment on a plea of guilty for such an offence was said by the Court to be appropriate where the applicant had failed to appear at his trial for an offence of trafficking in 19.82 grammes of heroin narcotic; and when he was re-arrested 21 months later.  The Court held that a starting point of 9 months’ imprisonment was appropriate, with a customary one-third reduction for guilty plea.  The Court did not interfere with the wholly consecutive element of the sentence.

15.  In the present case, the applicant had absconded for just under 12 months.  In mitigation, the applicant’s solicitor submitted that the applicant had been admitted to hospital two days before 1 April 2014.  In fact, the applicant had been discharged from hospital on 31 March 2014, the day before the hearing. Then, it was said that she had overslept on the day of the hearing because of her illness, but that she had attended court in the afternoon.  However, no explanation was given as to why she did not contact the police or the court clerk for almost a year.

16.  Failing to turn up at court when entrusted with bail by that court is a serious breach of a court order.  In this case, the applicant absconded when facing a serious charge for almost a year.  In my view, it is not reasonably arguable that a sentence of 6 months’ imprisonment, made wholly consecutive to the sentence for the main offence, was manifestly excessive or wrong in principle.

Conclusion

17.  This application is refused.  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.