HKSAR v. SHEK PO SIN

CACC 7/2019

[2019] HKCA 767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 7 OF 2019

(ON APPEAL FROM HCCC NO 176 OF 2018)

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J U D G M E N T

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1.  On 21 October 2017, the applicant was stopped by police officers who found in her handbag four transparent resealable plastic bags containing 19.3 grammes of a crystalline solid containing 19.08 grammes of methamphetamine hydrochloride (commonly known as Ice), one transparent resealable plastic bag containing 0.95 gramme of a solid containing 0.69 gramme of cocaine, and two transparent resealable plastic bags containing a total of 37 unused transparent resealable plastic bags. 

2.  The applicant was arrested for trafficking in dangerous drugs and upon being cautioned she exercised her right of silence. She was charged with trafficking in dangerous drugs and brought before the Magistrate’s Court.  During the course of her committal proceedings, she indicated that she would plead not guilty to the charge.  She was thereupon committed for trial in the Court of First Instance on 28 May 2018. 

3.  The applicant’s case was fixed for trial in the Court of First Instance on 5 December 2018, with 7 days set aside, and for a case management hearing on 10 September 2018.  It was not until the case management hearing that the applicant admitted the offence of possession of dangerous drugs, as an alternative to the charge of trafficking in dangerous drugs.

4.  The applicant went to trial and was acquitted of the offence of trafficking in dangerous drugs but convicted of the offence of possession of dangerous drugs.

5.  In sentencing the applicant, the judge, as required by law, requested a Drug Addiction Treatment Centre report, which recommended that she was not suitable for this sentencing option.  She had previously been ordered to attend a Drug Addiction Treatment Centre.

6.  In accordance with the sentencing guidelines and principles, the judge passed a custodial sentence on the applicant.  See HKSAR v Wong Wai Wah, CACC 181/2017, 12 October 2018, unreported; HKSAR v Mok Cho Tik [2001] 1 HKC 261.  She adopted a starting point of 18 months’ imprisonment which she enhanced by 12 months for the latent risk factor and 6 months for the fact that she was on bail when she committed the offence.  She reduced the starting point of 36 months’ imprisonment by 22.5% for the late indication that she was guilty of possession of dangerous drugs, which resulted in a sentence of 28 months’ imprisonment.

7.  The applicant applies for leave to appeal against her sentence.  She complains that the sentence was too severe and too high. She specifically takes issue with the following matters.  First, she complains that the reduction for her guilty plea of 22.5%, which she incorrectly describes as a one fourth reduction, was too low.  She claims that because of her limited legal knowledge she did not appreciate that she could indicate a plea of guilty to possession of dangerous drugs.  I note that the applicant, who is 31 years of age, has a long list of prior convictions for drug related offences and would be very familiar with the criminal justice system.  In any event, the judge committed no error in the reduction she gave the applicant for her late plea of guilty to the possession of dangerous drugs.  See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  Secondly, she complains that the enhancement to her sentence of 6 months for committing the present offence whilst on bail was too severe.  The enhancement and the amount were in accordance with sentencing principles and completely justified in circumstances of the case.  See HKSAR v Leung Ting Fung & Anor [2015] 1 HKC 290.

8.  It is noted that the judge also enhanced the applicant’s sentence for the latent risk factor by 12 months.  She did so on the basis that she determined that there was a real risk of dissemination of the drugs and that the risk was high.  The enhancement was therefore appropriate and justified.  The applicant takes no issue in relation to this aspect of her sentence.

9.  The matters raised by the applicant are without merit and her application for leave to appeal against sentence is refused.

10.  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.