HKSAR v. TSUI MUNG YING

CACC 175/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 175 OF 2015

(ON APPEAL FROM HCCC NO. 312 OF 2014)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court)

1.  The applicant, who appears in person having been refused the grant of legal aid and the assistance of the HK Bar Association’s Free Legal Service Scheme, seeks leave to appeal against the sentences imposed on her by M. Poon J on 22 May 2015 following her pleas of guilty to four counts of trafficking unlawfully in a dangerous drug, namely various quantities of ketamine, as particularised in the indictment, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The hearing of this application was delayed at the request of the applicant on 30 September 2015, pending the resolution of her application for leave to appeal against her conviction in another matter, as a result of which she was serving 3 years’ imprisonment at the time she was sentenced in this case. However, on the applicant filing a Notice of Abandonment of that application, the application was dismissed on 16 February 2016.

Sentences

2.  The judge sentenced the applicant to the following terms of imprisonment:

Count 1, in respect of 38.84 grammes of ketamine, 40 months;

Count 3, in respect of 119.3 grammes of ketamine, 56 months; 18 months of which was to be served consecutively to the sentence imposed in respect of Count 1;

Count 4, in respect of 83.99 grammes of ketamine,52 months; 18 months of which was to be served consecutively to the sentence imposed in respect of Count 1; and

Count 5, in respect of 43.75 grammes of ketamine, 44 months, 12 months of which was to be served consecutively to the sentence imposed in respect of Count 1.

The facts

Count 1

3.  On 31 October 2013, two undercover female police officers, performed a ‘controlled buy’ dangerous drug operation.  The police officers were described only as PW1 and PW2.  PW1 was approached by a South East Asian man at around 20:00 hours, who offered to sell two ounces of “fragrance”, which he explained meant ketamine, for $3,500.  As requested by the man, the two police officers waited outside a public toilet on Jubilee Street.  There, they met the applicant at 21:25 hours.  Having walked away from PW2, as requested by the applicant,PW1 was handed a red packet by the applicant who said “Your two ounces of K Chai”.  The applicant asked for payment of $3,500 which PW1 paid her.  Then, they exchanged mobile telephone numbers, the applicant having introduced herself as “B Chai”.  She asked PW1 to call her if she wanted more.  The red packet contained 38.84 grammes of ketamine.

Count 3

4.  In the afternoon of 2 December 2013, the applicant contacted PW1, informing her that she had changed her telephone number.  She said she had acquired some good quality ketamine recently and offered to sell six ounces of ketamine for $9,700.  They agreed to meet at Tsim Sha Tsui MTR station at 18:30 hours.  Having met, the applicant led PW1 to a tea restaurant and said that her ‘boss’ would complete the transaction.  The applicant left after her co-defendant, the 2^nd defendant arrived and introduced herself.  The 2^nd defendant gave her phone number to PW1 and asked her to contact her directly, saying that the applicant obtained the ketamine from her.  On her return, the applicant gave PW1 a plastic bag, which contained seven packets, which in turn contained 119.3 grammes of ketamine. As requested, PW1 paid the applicant $9,700.

Count 4

5.  In the afternoon of 27 December 2013, PW1 received a telephone call from a female who offered to sell her five ounces of ketamine for $10,000.  They agreed to meet in Mongkok at 17:00 hours.  At 16:39 hours the female telephoned PW1 and informed her that the applicant would effect the transaction.  At around 18:24 hours, the applicant telephoned PW1 and arranged to meet her in Langham Place, Mongkok. Having met at 18:45 hours, the applicant led PW1 to a toilet inside the shopping mall.  There, the applicant opened the cover of a water closet and retrieved a plastic packet, telling PW1 that the “fragrance” was inside.  As requested by the applicant, PW1 paid her $10,000.  The plastic bag contained 83.99 grammes of ketamine.

Count 5

6.  In the morning of 18 January 2014, PW1 had a telephone conversation with the 2^nd defendant, who offered to sell her three ounces of ketamine for $5,400.  Having agreed to the purchase, PW1 was told by the 2^nd defendant that the applicant would deliver the ketamine to PW1’s friend PW2.  PW1 was to give the cash to her.  At around 17:20 hours, the four of them went to Tsim Sha Tsui. PW1 met the 2^nd defendant inside a restaurant, whilst PW2 was with the applicant at K-11 Shopping Mall. The applicant gave PW2 a packet and told her that the “fragrance” was inside.  The packet contained 43.75 grammes of ketamine. 

7.  Then, PW2 telephoned PW1. At the same time, the applicant called the 2^nd defendant.  The applicant was arrested.  On the other hand, the 2^nd defendant told PW1 that the applicant had delivered the ‘fragrance’ to PW2 and that they could go to a bank together, so that PW1 could deposit cash into her bank account.  The 2^nd defendant was arrested when they left the restaurant.

Reasons for sentence

8.  Having noted that the applicant had three previous convictions, the judge said:[1]

“ She was sentenced to 3 years’ imprisonment for conspiracy to defraud on 26 January 2015. Those offences were committed between 20 December 2013 to 9 January 2014, ie at roughly the same time as the present offences.”

9.  Then, the judge noted that the applicant had committed multiple offences in the period of less than three months.  Of that, she said:[2]

“ In cases where a person have sold drugs on a number of occasions to an undercover agent, the combined weight of the drugs is only one consideration, albeit an important factor, to be borne in mind. The case (i)s HKSAR v Lai Yau Fat CACC 278/2000. The separate acts of trafficking are repeated acts of offending, and thus aggravating features, as per Wright J in HKSAR v Lui Wai Kam CACC 400/2009.”

10.  The judge went on to note that:[3]

“ In the case of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, Stock J said:

‘[T]he ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care first to pass a sentence for each individual offence that is appropriate to that offence, in the circumstances of its commission, and second, not to punish the offender twice for the same conduct.[4]  [M]ultiple offence scenario that involves offences different in nature, or the same committed on quite separate occasions.  In that situation, the court will invariably have concluded that, in principle, it may impose consecutive sentences.  But the courts still need to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle[5].’ ”

11.  In the result, the judge determined:[6]

“ In the present case, whilst I bear in mind the aggregate amount of total narcotics sold by D1 on the four occasions amount to 285.88 grammes of ketamine…, I will deal with each offence separately with a starting point according to the gravity of the offence and the circumstances of its commission.”

Starting point for sentence

12.  The judge stipulated starting points for sentence of 5 years’, 7 years’, 6½ years’ and 5½ years’ imprisonment for Counts 1, 3, 4 and 5 respectively.

Discount

13.  Having said that she took into account the applicant’s plea of guilty and mitigation advanced on her behalf, in which it had been submitted that the applicant was addicted to dangerous drugs as a result of which she had been driven to act as a courier of dangerous drugs, the judge said that she afforded the applicant a discount of one-third from the sentences of imprisonment she stipulated as the starting point.

Sentence

14.  In sentencing the applicant, the judge said:[7]

“ So for D1, Charge 1, 40 months’ imprisonment. Charge 3, 56 months. Charge 4, 52 months. Charge 5, 44 months. For D1, Charges 3 and 4 involves the largest amount of drugs. I order 18 months out of each, and 12 months out of Charge 5, to run consecutively to the 40 months of Charge 1, making a total of 88 months. So in essence, it is 40 plus 18 plus 18 plus 12, amounts to 88 months. I have taken into account that she is now serving another sentence in respect of a conspiracy charge. The present sentence of 88 months is to commence after D1 has served 9 months of a sentence in respect of DCCC 957/2014.”

Application for leave to appeal out of time against sentence

15.  In an affirmation, filed with the Court on 23 June 2015, the applicant explained that her application was made out of time, by a few days, because she had consulted her family first before lodging a Notice of her application for leave to appeal against sentence.

Grounds of appeal against sentence

16.  In the home-made grounds of appeal attached to Form XI, by which the applicant gave notice of her application for leave to appeal against sentence, the applicant said simply “the sentence was severer than I expected and than those in similar cases.”

17.  In a letter to the Court dated 21 April 2016, the applicant said that she had committed the offences because she was unemployed at the time of the offences.  She said that on her own initiative she had contacted the police and informed them that she was willing to provide them with information in respect of other offences and to give evidence, if necessary.

The submission of the respondent

18.  Mr Andrew Li for the respondent confirmed that the applicant had made a statement to the police dated 16 February 2016. However, the information provided of the applicant proved to be of no use.  He submitted that the judge had taken the correct approach to sentencing the applicant for a series of offences of unlawfully trafficking in ketamine committed in the overall period 31 October 2013 to 18 January 2014.  Whilst the judge had correctly had regard to the overall culpability of the applicant, nevertheless it was required that the judge pass appropriate sentences for each of the offences. That, she had done.  An arithmetic approach to stipulating the starting point for each of the counts produced sentences of 65.3 months’, 81.9 months’, 76.19 months’ and 68.3 months’ imprisonment for Counts 1, 3, 4 and 5 respectively.  The judge had stipulated starting points of 60 months’, 84 months’, 78 months’ and 66 months’ imprisonment respectively.

19.  Mr Li went on to observe that if the total amount of ketamine in which the applicant trafficked unlawfully, namely 285.88 grammes had been trafficked in one offence, the notional starting point would be about 8 years and 10 months’ imprisonment.  The notional starting point for the total sentence of 88 months’ imprisonment imposed on the applicant was 11 years’ imprisonment.

20.  Mr Li submitted that in determining the overall sentence of imprisonment to be imposed on the applicant, regard was to be had to the fact that the quantity of ketamine unlawfully trafficked in each count was substantial, that the applicant took the initiative to contact PW1 in the transaction the subject of Count 3, and although the role of the applicant was that of courier nevertheless, that was an essential role in what was clearly a larger syndicate trafficking unlawfully in dangerous drugs.

A consideration of the submissions

21.  Clearly, the starting points stipulated for sentence by the judge lie within the appropriate range of sentence for each of the counts.

Partly consecutive sentences

22.  There is no dispute that the offences committed by the applicant, albeit offences of the same nature, were committed on quite separate occasions.  So, in principle, subject to a consideration of the principle of totality of sentence, it was appropriate that the sentences be ordered to be served consecutively to one another.  Quite clearly, that is the approach that the judge took.

23.  Although the judge ordered that 18 months’ imprisonment of the sentences imposed in respect of each of Counts 3 and 4 was to be served consecutively to the sentence imposed in respect of Count 1, namely 40 months’ imprisonment, it is clear that, in ordering that 18 months’ imprisonment of the sentence imposed in respect of Count 4 be served consecutively, the judge intended that sentence to be consecutive to the overall sentence resulting from the earlier order in respect of Count 3, namely 58 months’ imprisonment.  Similarly, in ordering that 12 months of the sentence of imprisonment imposed in respect of Count 5 was to be served consecutively to the sentence imposed in respect of Count 1 the judge intended that sentence to be consecutive to the overall sentence resulting from the earlier orders in respect of Counts 3 and 4, namely 76 months’ imprisonment.  She said as much, “It is 40 plus 18 plus 18 plus 12, amounts to 88 months.”

24.  In ordering that 18 months’ imprisonment of the sentences imposed in respect of Counts 3 and 4 be served consecutively to the sentence imposed in respect of Count 1, the judge noted that Counts 3 and 4 concerned the largest amount of ketamine in which the applicant trafficked unlawfully, namely 119.3 grammes and 89.99 grammes respectively.  By contrast, Count 5 concerned only 43.75 grammes of ketamine.  The judge ordered that only 12 months’ imprisonment of the sentence of 44 months’ imprisonment imposed for that offence be served consecutively.

25.  We are satisfied that the judge’s orders that part of the sentences imposed in respect of Counts 3, 4 and 5 be served consecutively were proportionate to the culpability of the applicant in the commission of those successive offences and, having regard to the applicant’s overall culpability, were appropriate.

26.  As noted earlier, the judge observed that not only was the applicant serving a sentence of 3 years’ imprisonment at the time that the judge imposed sentence, but also that sentence had been imposed in respect of a quite different offence, namely conspiracy to defraud, which, having been committed in the period 20 December 2013 to 9 January 2014, had been committed “at roughly the same time as the present offences.”

27.  We are satisfied that in those circumstances, having regard to the principle of totality of sentence, the judge was entitled to make the order that she did, namely that the sentences that she imposed would commence after the applicant had served nine months of the sentence of imprisonment imposed for the conspiracy to defraud.

Conclusion

28.  For the reasons we have given, we refuse the application for leave to appeal against sentence out of time.