HKSAR v. CHAU KA MAN

CACC 403/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 403 OF 2014

(ON APPEAL FROM HCCC NO. 168 OF 2014)

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JUDGMENT

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1.  The applicant seeks leave out of time to appeal against a sentence of 5 years’ imprisonment passed upon her by Barnes J on 30 September 2014, when she pleaded guilty to two counts, namely possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (the Ordinance) (Count 1), and trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Ordinance (Count 2).

2.  The sentence was achieved in this way. Adopting a starting point of 12 months’ imprisonment in respect of Count 1, the sentence was reduced by one third to 8 months on account of her plea of guilty.  In respect of Count 2, the judge adopted a starting point of 7½ years’ imprisonment and again reduced it by one third for her plea to 5 years’ imprisonment.  She then ordered both sentences to run concurrently with each other, making a resulting sentence of 5 years’ imprisonment.

3.  No reason has been given as to why the applicant did not give notice of her intention to seek leave to appeal against her sentence within time.  However, in view of the fact that the application for leave is less than a month out of time, Mr Li, for the respondent, takes a neutral stance on the application being out of time, if there are otherwise merits in the appeal, which he does not accept.

The prosecution case

4.  The facts which were admitted were that the applicant, who was 24 years old at the time, was intercepted by police officers on 5 January 2014 at the ground floor of Kwai Hin House, Lower Ngau Tau Kok Estate, Kowloon.  She was found to be in possession in her coat pocket of 1.92 grammes of a crystalline solid containing 1.90 grammes of methamphetamine hydrochloride, commonly known as “Ice”.  Upon her arrest and caution, she said that the drugs were for her own consumption.

5.  Using a key found on the applicant, the police gained access to a residential unit in Kwai Hin House.  In a handbag in the living room of the unit were found the drugs particularised in Count 2, together with a number of plastic bags.  The drugs amounted to 22.66 grammes of a crystalline solid containing 22.5 grammes of methamphetamine hydrochloride; 11.45 grammes of a powder containing 4.31 grammes of ketamine; and 0.03 grammes of nimetazepam.  An electronic scale was found in the drawer of the premises.  Under caution, the applicant claimed that all of the drugs in the premises were for her own consumption.  The total value of the drugs was HK$12,208.

6.  In a video recorded interview conducted later that day, the applicant reiterated that the drugs in her pocket and in the premises were all bought for her own consumption.  She further explained that she had bought the “Ice” on 31 December 2013; that she was the only one in possession of a key to the premises; and that she was in receipt of Social Security of about HK$3000 per month.

7.  At trial, the applicant formally accepted that she was trafficking in the dangerous drugs particularised in Count 2.

The judge’s sentence

8.  In view of certain matters brought up in mitigation by counsel acting on the applicant’s behalf, sentence was adjourned for a background report and two psychiatric reports on the applicant.  Having obtained these reports, the judge bore in mind the circumstances of the offence, the applicant’s “rather unfortunate” personal background and the fact that she was a first-time offender.  She disregarded for sentencing purposes the small quantity of nimetazepam and considered that the relatively smaller quantity of ketamine (relative that is to the “Ice”) would not have added anything to the starting point, had it been “Ice” rather than ketamine.  Accordingly, she adopted a starting point of 7½ years’ imprisonment in respect of Count 2, which she reduced to 5 years’ imprisonment for the applicant’s plea of guilty.

9.  The sentence on Count 1 of 8 months’ imprisonment was ordered to run wholly concurrently with the sentence on Count 2.

The application for leave to appeal against sentence

10.  The applicant today applies for leave to appeal her sentence on the basis that it was manifestly excessive.  Before me today, she has not expanded on that submission.

Consideration

11.  No issue can be made of the starting point in respect of Count 2.  On a strictly mathematical basis, a narcotic quantity of about 20 grammes of “Ice” would have merited a sentence of 7½ years’ imprisonment after trial.  However, as Mr Li points out, the applicant had admitted trafficking in more than one drug, which is an aggravating feature of her offence: see HKSAR v Yim Hung Lui Ricky (unrep., CACC 266/2011, 13 February 2012).  There was also the small quantity of “Ice” found in her possession (Count 1), albeit possessed for her own consumption.

12.  No doubt the judge felt that the factors in mitigation which she accepted could properly be balanced against the aggravating feature of trafficking in more than one type of drug, and justified the starting point she adopted for Count 2, with the ordering of the sentence on Count 1 to run wholly concurrently to the sentence on Count 2.

13.  In the circumstances, the sentencing exercise conducted by the judge was a very careful and considered one, with the full benefit of information about the applicant’s personal history.  The sentence was within the acceptable range of sentences open to the judge, bearing in mind the mitigating and aggravating factors I have described.  I do not consider on the material before me that there are reasonable grounds of appeal against sentence which would warrant leave being granted.

14.  Leave to appeal against sentence out of time is therefore refused.  The applicant is duly advised of her right to renew her application to the Court of Appeal and the consequences of so doing, which may include a direction for the loss of any time spent in custody pending her appeal, if the Court of Appeal comes to the conclusion that there was no justification for the renewal of the application.